Guest Post: Evaluating MIB’s emergency blocking power under Rule 16 of the 2021 IT Rules (Part II)

This post is authored by Dhruv Bhatnagar

Part I of this two part-series examined the contours of Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 IT Rules”), and the  Bombay High Court’s rationale for refusing to stay the rule in the Leaflet case. This second part examines the legality and constitutionality of Rule 16. It argues that the rule’s constitutionality may be contested because it deprives impacted content publishers of a hearing when their content is restricted. It also argues that the MIB should provide information on blocking orders under Rule 16 to allow them to be challenged, both by users whose access to information is curtailed, and by publishers whose right to free expression is restricted.

Rule 16’s legality

At its core, Rule 16 is a legal provision granting discretionary authority to the government to take down content. Consistently, the Supreme Court (“SC”) has maintained that to be compliant with Article 14, discretionary authority must be backed by adequate safeguards.^[1] Admittedly, Rule 16 is not entirely devoid of safeguards since it envisages an assessment of the credibility of content blocking recommendations at multiple levels (refer Part I for context). But this framework overlooks a core principle of natural justice – audi alteram partem (hear the other side) – by depriving the impacted publishers of a hearing.

In Tulsiram Patel, the SC recognised principles of natural justice as part of the guarantee under Article 14 and ruled that any law or state action abrogating these principles is susceptible to a constitutionality challenge. But the SC also found that natural justice principles are not absolute and can be curtailed under exceptional circumstances. Particularly, audi alteram partem, can be excluded in situations where the “promptitude or the urgency of taking action so demands”.

Arguably, the suspension of pre-decisional hearings under Rule 16 is justifiable considering the rule’s very purpose is to empower the Government to act with alacrity against content capable of causing immediate real-world harm. However, this rationale does not preclude the provision of a post-decisional hearing under the framework of the 2021 IT Rules. This is because, as posited by the SC in Maneka Gandhi (analysed here and here), the “audi alteram partem rule is sufficiently flexible” to address“the exigencies of myriad kinds of situations…”. Thus, a post-decisional hearing to impacted stakeholders, after the immediacy necessitating the issuance of interim blocking directions had subsided, could have been reasonably accommodated within Rule 16. Crucially, this would create a forum for the State to justify the necessity and proportionality of its speech restriction to the individuals’ impacted (strengthening legitimacy) and the public at large (strengthening the rule of law and public reasoning). Finally, in the case of ex-facie illegal content, originators are unlikely to avail of post-facto hearings, mitigating concerns of a burdensome procedure.       

Rule 16’s exercise by MIB

Opacity

MIB has exercised its power under Rule 16 of the 2021 IT Rules on five occasions. Collectively, it has ordered the blocking of approximately 93 YouTube channels, 6 websites, 4 Twitter accounts, and 2 Facebook accounts. Each time, MIB has announced content blocking only through press releases after theorders were passed but has not disclosed the actual blocking orders.

MIB’s reluctance to publish its blocking orders renders the manner it is exercising power under Rule 16 opaque. Although press statements inform the public that content has been blocked, blocking orders are required (under Rule 16(2) and Rule 16(4)) to record the reasons for which the content has been blocked. As discussed above, this limits the right to free expression of the originators of the content and denies them the ability to be heard.

Additionally, content recipients, whose right to view content and access information is curtailed through such orders, are not being made aware of the existence of these orders by the Ministry directly. Pertinently, the 2021 IT Rules appear to recognise the importance of informing users about the reasons for blocking digital content. This is evidenced by Rule 4(4), which requires ‘significant social media intermediaries’ to display a notice to users attempting to access proactively disabled content. However, in the absence of similar transparency obligations upon MIB under the 2021 IT Rules, content recipients aggrieved by the Ministry’s blocking orders may be compelled to rely on the cumbersome mechanism under the Right to Information Act, 2005 to seek the disclosure of these orders to challenge them.   

Although the 2021 IT Rules do not specifically mandate the publication of blocking orders by MIB, this obligation can be derived from the Anuradha Bhasin verdict. Here, in the context of the Telecom Suspension Rules, the SC held that any order affecting the “lives, liberty and property of people” must be published by the government, “regardless of whether the parent statute or rule prescribes the same”. The SC also held that the State should ensure the availability of governmental orders curtailing fundamental rights unless it claims specific privilege or public interest for refusing disclosure. Even then, courts will finally decide whether the State’s claims override the aggrieved litigants’ interests.

Considering the SC’s clear reasoning, MIB ought to make its blocking orders readily available in the interest of transparency, especially since a confidentiality provision restricting disclosure, akin to Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“2009 Blocking Rules”), is absent in the 2021 IT Rules.   

Overuse

Another concerning trend is MIB’s invocation of its emergency content-blocking power as the norm rather than the exception it was meant to be. For context, the 2021 IT Rules provide a non-emergency blocking process under Rules 14 and 15, whereunder impacted publishers are provided a pre-decisional hearing before an Inter-Departmental Committee required to be constituted under Rule 13(1)(b). However, thus far, MIB has exclusively relied on its emergency power to block ostensibly problematic digital content, including fake news.

While the Bombay High Court in the Leaflet case declined to expressly stay Rule 14 (noting that the Inter-Departmental Committee was yet to be set up) (¶19), the High Court’s stay on Rule 9(3) creates a measure of ambiguity as to whether Rules 14 and 15 are currently in effect. This is because Rule 9(3) states that there shall be a government oversight mechanism to “ensure adherence to the Code of Ethics”. A key part of this mechanism is the Inter-Departmental Committee whose role is to decide “violation[s] or contravention[s] of the Code of Ethics” (Rule 14(2)). The High Court even notes that it is “incomprehensible” how content may be taken down under Rule 14(5) for violating the Code of Ethics (¶27). Thus, despite the Bombay High Court’s refusal to stay Rule 14, it is arguable that the High Court’s stay on the operation of Rule 9(3) to prevent the ‘Code of Ethics’ from being applied against online news and curated content publishers, may logically extend to Rule 14(2) and 15. However, even if the Union were to proceed on a plain reading of the Leaflet order and infer that the Bombay High Court did not stay Rules 14 and 15, it is unclear if the MIB has constituted the Inter-Departmental Committee to facilitate non-emergency blocking.     

MeitY has also liberally invoked its emergency blocking power under Rule 9 of the 2009 Blocking Rules to disable access to content. Illustratively, in early 2021 Twitter received multiple blocking orders from MeitY, at least two of which were emergency orders, directing it to disable over 250 URLs and a thousand accounts for circulating content relating to farmers’ agitation against contentious farm laws. Commentators have also pointed out that there are almost no recorded instances of MeitY providing pre-decisional hearings to publishers under the 2009 Blocking Rules, indicating that in practice this crucial safeguard has been rendered illusory.  

Conclusion

Evidently, there is a need for the MIB to be more transparent when invoking its emergency content-blocking powers. A significant step forward in this direction would be ensuring that at least final blocking orders, which ratify emergency blocking directions, are made readily available, or at least provided to publishers/originators. Similarly, notices to any users trying to access blocked content would also enhance transparency. Crucially, these measures would reduce information asymmetry regarding the existence of blocking orders and allow a larger section of stakeholders, including the oft-neglected content recipients, the opportunity to challenge such orders before constitutional courts.

Additionally, the absence of hearings to impacted stakeholders, at any stage of the emergency blocking process under Rule 16 of the 2021 IT Rules limits their right to be heard and defend the legality of ‘at-issue’ content. Whilst the justification of urgency may be sufficient to deny a pre-decisional hearing, the procedural safeguard of a post-decisional hearing should be incorporated by MIB.

The aforesaid legal infirmities plague Rule 9 of the 2009 Blocking Rules as well, given its similarity with Rule 16 of the 2021 IT Rules. The Tanul Thakur case presents an ideal opportunity for the Delhi High Court to examine and address the limitations of these rules. Civil society organisations have for years advocated (here and here) for incorporation of a post-decisional hearing within the emergency blocking framework under the 2009 Blocking Rules too. Its adoption and diligent implementation could go a long way in upholding natural justice and mitigating the risk of arbitrary content blocking.

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^[1] State of Punjab v. Khan Chand, (1974) 1 SCC 549; Virendra v. The State of Punjab & Ors., AIR 1957 SC 896; State of West Bengal v. Anwar Ali, AIR 1952 SC 75.

Guest Post: Evaluating the legality of MIB’s emergency blocking power under the 2021 IT Rules (Part I)

This post is authored by Dhruv Bhatnagar

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 IT Rules”) were challenged before several High Courts (refer here and here) almost immediately after their promulgation. In one such challenge, initiated by the publishers of the online news portal ‘The Leaflet’, the Bombay High Court, by an order dated August 14, 2021,  imposed an interim stay on the operation of Rules 9(1) and (3) of the 2021 IT Rules. Chiefly, this was done because these provisions subject online news and curated content publishers to a vaguely worded ‘code of ethics’, adherence to which would have had a ‘chilling effect’ on their freedom of speech. However, the Bombay High Court refused to stay Rule 16 of these rules, which empowers the Ministry of Information and Broadcasting (“MIB”) to direct blocking of digital content during an “emergency” where “no delay is acceptable”.

Part I of this two-part series, examines the contours of Rule 16 and argues that the Bombay High Court overlooked the procedural inadequacy of this rule when refusing to stay the provision in the Leaflet case. Part II assesses the legality and constitutionality of the rule.

Overview of Rule 16

Part III of the 2021 IT Rules authorises the MIB to direct blocking of digital content in case of an ‘emergency’ in the following manner:

The MIB has correctly noted that Rule 16 is modelled after Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“2009 Blocking Rules”) (analysed here), and confers upon the MIB similar emergency blocking powers which the Ministry of Electronics and Information Technology (“MeitY”) has possessed since 2009. Both provisions confer discretion upon authorised officers to determine what constitutes an emergency but fail to provide a hearing to impacted publishers or intermediaries at any stage.

Judicial findings on Rule 16

The Bombay High Court’s order in the Leaflet case is significant since it is the first time a constitutional court has recorded its preliminary findings on the rule’s legitimacy. Here, the Bombay High Court refused to stay Rule 16 primarily for two reasons. First, the High Court held that Rule 16 of the 2021 IT Rules is substantially similar to Rule 9 of the 2009 Blocking Rules, which is still in force. Second, the grounds upon which Rule 16 permits content blocking are coextensive with the grounds on which speech may be ‘reasonably restricted’ under Article 19(2) of the Indian Constitution. Respectfully, the plausibility of this reasoning is contestable:

Equivalence with the 2009 Blocking Rules: Section 69A of the IT Act and the 2009 Blocking Rules were previously challenged in Shreya Singhal, where both were upheld by the Supreme Court (“SC”). However, establishing an equivalence between Rule 16 of the 2021 IT Rules and Rule 9 of the 2009 Blocking Rules to understand the constitutionality of the former would have been useful only if Shreya Singhal contained a meaningful analysis of Rule 9. However, the SC did not examine this rule but rather broadly upheld the constitutionality of the 2009 Blocking Rules as a whole due to the presence of certain safeguards including: (a) the non-emergency process for content blocking under the 2009 Blocking Rules includes a pre-decisional hearing to identified intermediaries/originators before content was blocked; and (b) the 2009 Blocking Rules mandate the recording of reasons in blocking orders so that they may be challenged under Article 226 of the Constitution

However, the SC did not consider that the emergency blocking framework under Rule 9 of the 2009 Blocking Rules not only allows MeitY to bypass the essential safeguard of a pre-decisional hearing to impacted stakeholders but also fails to provide them with either a written order or a post-decisional hearing. It also did not address that Rule 16 of the 2009 Blocking Rules, which mandates confidentiality of blocking requests and subsequent actions, empowers MeitY to refuse disclosure of blocking orders to impacted stakeholders thus depriving them of the opportunity to challenge such orders.

In fact, Rule 16 was cited by MeitY as a basis for denying film critic Mr. Tanul Thakur access to the blocking order by which his satirical website ‘Dowry Calculator’ was banned. Mr. Thakur challenged Rule 16 of the 2009 Blocking Rules and highlighted the secrecy with which MeitY exercises its blocking powers in a writ petition which is being heard by the Delhi High Court. Recently, through an interim order dated 11 May 2022, the Delhi High Court directed MeitY to provide Mr. Thakur with a copy of the blocking order blocking his website, and offer him a post-decisional hearing. This is a significant development since it is the first recorded instances of such a hearing being provided to an originator under the 2009 Blocking Rules.

Thus, the Bombay High Court’s attempt in the Leaflet case to claim equivalence with Rule 9 of the 2009 Blocking Rules as a basis to defend the constitutionality of Rule 16 of the 2021 IT Rules was inapposite since Rule 9 itself was not substantively reviewed in Shreya Singhal, and its operation has since been challenged on constitutional grounds.

Procedural safeguards: Merely because Rule 16 of the 2021 IT Rules permits content blocking only under the circumstances enumerated under Article 19(2), does not automatically render it procedurally reasonable. In People’s Union of Civil Liberties (“PUCL”) the SC examined the procedural propriety of Section 5(2) of the Telegraph Act, 1885, which permits phone-tapping. Even though this provision restricts fundamental rights only on constitutionally permissible grounds, the SC found that substantive law had to be backed by adequate procedural safeguards to rule out arbitrariness. Although the SC declined to strike down Section 5(2) in PUCL, it framed interim guidelines to govern the provision’s exercise to compensate for the lack of adequate safeguards.

Since Rule 16 restricts the freedom of speech, its proportionality should be tested as part of any meaningful constitutionality analysis. To be proportionate, restrictions on fundamental rights must satisfy four prongs^[1]: (a) legality – the requirement of a law having a legitimate aim; (b) suitability – a rational nexus between the means adopted to restrict rights and the end of achieving this aim, (c) necessity – proposed restrictions must be the ‘least restrictive measures’ for achieving the aim; and (d) balancing – balance between the extent to which rights are restricted and the need to achieve the aim. Justice Kaul’s opinion in Puttaswamy (9JB) also highlights the need for procedural safeguards against the abuse of measures interfering with fundamental rights (para 70 Kaul J).  

Arguably, by demonstrating the connection between Rule 16 and Article 19(2), the Bombay High Court has proven that Rule 16 potentially satisfies the ‘legality’ prong. However, even at an interim stage, before finally ascertaining Rule 16’s constitutionality by testing it against the other proportionality parameters identified above, the Bombay High Court should have considered whether the absence of procedural safeguards under this rule merited staying its operation.

For these reasons, the Bombay High Court could have ruled differently in deciding whether to stay the operation of Rule 16 in the Leaflet case. While these are important considerations at the interim stage, ultimately the larger question of constitutionality must be addressed. The second post in this series will critically examines the legality and constitutionality of Rule 16.

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[1] Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors., (2016) 7 SCC 353; Justice K.S. Puttaswamy & Ors. v. Union of India (UOI) & Ors., (2019) 1 SCC 1; Anuradha Bhasin and Ors. v. Union of India (UOI) & Ors., (2020) 3 SCC 637.

Terms under 66A Open Ended: Supreme Court

On 13^th April, the set of ten petitions challenging various section and rules of the Information Technology Act, 2000 came up for hearing before a Supreme Court bench of Justices J. Chelameswar and R.F. Nariman. An overview of these cases, which will define the contours of free speech over the Internet in India can be found here. These set of cases challenge among other things sections 66A, 69A, 79(3) and 80 of the Information Technology Act and the Information Technology. (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and the Information Technology (Intermediary guidelines) Rules, 2011.

The arguments in the matter were made in December 2014 before a bench of Justices J. Chelameswar and S.A. Bobde, however due to change in the composition the bench the arguments have started afresh. A number of advocates including Mr. Soli Sorabjee, Mr. Prashant Bhushan, Mr. Sajan Poovayya and Mr. K.K. Venugopal have argued before the previous bench.

Similar to the arguments before the last bench, today’s arguments started with Assistant Solicitor General, Mr. Tushar Mehta placing certain material before Justice Nariman in a sealed cover. The material was was similar to what was previously placed before Justices Chalmeshwar and Bobde. ASG stated that these are the kind of information that are sought to be blocked and political dissent, extreme humour or contrary opinion cannot be blocked. He further added that all the provisions under the Act should be read in context of art. 19(2) of the Indian Constitution. The ASG asked the bench to peruse the material, however the bench stated that they will do so after hearing the petitioners.

On being asked by Ms. Karuna Nundy, who is representing PUCL, that the petitioners be provided a copy of the same, the ASG submitted that the material is confidential and is only for the perusal of the bench and cannot be handed over. However, the bench asked the ASG to provide the petitioners with a copy with a caveat of it not being circulated. Subsequent to this, the petitioners were supplied with the copy of the material, however it was taken back from them before the day’s proceedings concluded. (We have not been able to verify whether the material was returned later).

For the petitioners, Mr. Prashant Bhushan started the arguments in the matter of Common Cause v. Union of India. Mr. Bhushan’s arguments were largely the same as before the previous bench and can be found here. On the subject of s. 69A, J. Nariman observed that the grounds were a copy paste of restrictions under art. 19(2) of the Indian Constitution, however, he agreed that the reasonableness would still need to be tested.

J. Chalmeshwar observed that even though all the offences may be covered under the Indian Penal Code, the slight distinction is that the offences are committed through a computer communication. He further added that technology is certainly a distinguishable medium and distinction based on a medium can be provided though it will still have to conform to art. 19(2). On Mr. Bhushan’s submission that a medium cannot decide the contours of a fundamental right, J. Chalmeshwar observed that while that it true, it can decide the restrictions on that right. To this J. Nariman added that content of a right is different from the content of the restriction.

J. Nariman also asked all the petitioners to see which terms under section 66A can fall within the restrictions of art. 19(2) and also to look at the cases of John Doe v. US, Schenck v. United States and Abrams v. United States. The bench also observed that all the expressions under s.66A even though provided under Indian Penal Code are open ended whereas under IPC they are qualified and have some aspect of mensrea. J. Chalmeshwar stated that s. 66A rolls too many offences under one section and the clarity provided under IPC is not provided in the present section and it might be preferable to provide more clarity as to what situations are covered.

The ASG reiterated and requested the bench to puruse the material that has been placed before the bench and stated that the material was outrageous and offended sentiments of all the religions, be it Hinduism, Christianity or Islam. The ASG also informed the bench that the Centre Government has prepared a set of draft guidelines for application of S. 66A.

The hearing in the matter continues on 14th January.

(Sarvjeet is the Project Manager & a Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

Notes of Proceedings- II: Common Cause (A Regd. Society) & Anr. v. U.O.I., W.P. (C) No. 21/2013

Date: 9th December 2014

Common Cause (A Regd. Society) & Anr. v. U.O.I., W.P. (C) No. 21/2013

Section(s) Challenged: S. 66A, S. 69A and S. 80 of the IT Act

Arguing Counsel: Mr. Prashant Bhushan

Mr. Bhushan’s written submission on S.66A can be found here.

Mr. Bhsuhan started his arguments stating that he is challenging three provisions of the Act i.e. s. 66A, s. 69A and s. 80. Mr. Bhsuhan stated that in case of 66A firstly, the grounds are not covered by art. 19(2) and moreover, these are not defined at all anywhere. He stated that in case of criminalization of defamation under s. 499 IPC provides grounds, four explanations and ten exceptions and is fairly defined.

He stated that what causes annoyance is very vague and anything in public interest will annoy someone or the other and that will be the end of freedom of expression in the country. J. Chalmeshwar stated that what is politically annoying and what is a personal annoyance is covered under this and if we strike this down even that goes away. Mr. Bhsuahn stated that IPC covers each and every ground under the IT Act and also the POCSO Act. Everything that can be legitimately criminalized is covered under IPC. J. Bobde asked whether IPC will covered electronic media and whether a new offence is made to deal with new offences. Mr. Bushan said the object cannot be that as the object was promotion of e-commernce.

These terms are vague and render it to easily misuse. J. Chalmeshwar reiterated that political speech we agree however, how do we deal with speech that is annoying on a personal level. Mr. Bhushan replied that these terms are so vague that if I am legitimately using my freedom of speech even that can be curbed.

J. Chalmeshwar stated that any speech in public sphere cannot and should not be curbed by this and there is no doubt about this. When Mr. Bhushan gave the examples of ministers making unwanted statement in Delhi rallies or going to astrologers, J. Chalmeshwar said these it is a settled doctrine that these are the people who impose themselves on the society and have far lesser degree of protection.

Mr. Bhushan gave an elaborate example next stating that assuming that there is a person who puts up a post on Facebook against a particular community and in response to that I put up a post stating that that person’s post is despicable. Now under s.66A I can be booked for finding his speech despicable and that has caused annoyance to him.

J. Chalmeshwar asked whether it is possible to separate the speech is public sphere and private sphere. Mr. Bhsuahn replied that it is not an exercise, which is called for at this stage and the State should be allowed to define these terms clearly in they wish to in a way which brings them in conformity with art. 19(2).

Mr. Bhushan then referred to the case of R. Rajgopalan to point out to the law in case of prior restraint on the exercise of freedom of speech on the ground of defamation and that the law should be reasonable and he refereed to para 22 of the judgment at page 648. Mr. Bhushan stated that Freedom of Speech can be restricted on grounds of defamation but the law has to be reasonable law. J. Bobde gave the example of the law of contempt for a reasonable law, which restricts freedom of speech. In order to test the reasonability of law, which prohibits speech proportionality, should be checked.

He stated that for defamation under IPC, a complaint can be filed under procedure of CrPC and arrest can be happen after the judgment is delivered, however, in the present case S. 80 allows the police officer to come and arrest and seize equipment based on an apprehension of an offence including under s. 66A. He submitted that annoyance and other argues terms cannot be grounds for restricting speech and even for defamation, which is a ground under 19(2) such a law which allows arrest on a apprehension of defamation and without it being proved.

He gave examples of how people who have been in authority have misused the law and gave the example of arrest in Tamil Nadu for criticizing a Congress MP. He further stated that these provisions will fall on the ground of vagueness itself as law providing criminal sanctions cannot be vague. He stated that anything said in public interests could be termed as annoying and speech can be stifled and the person arrested. This will lead to chilling effect and self-censorship. The ASG interrupted and stated that in such a situation a person cannot be arrested as according to s.66A(b) the information has to be false and persistent and merely annoying will not attract the section.

Mr. Bhushan replied by stating that who decides whether information is false should be decided in a trial but here even before trial a person will be arrested and this has been happening in various instances. J. Bobde asked if the authorities have information that anti-national or communally sensitive information is loaded or about to be loaded on the Internet should the Government not have the power to stop such information. Mr, Bhshan agreed that the Government should have such power under s.69A but not on the ground of defamation, annoyance and that will be an unreasonable restriction. He agreed that endangering the security of state is a valid ground.

The ASG stated that it is important to understand the concept of annoyance under Cyber Law and that the annoying information under this sections should be false and persistent. He gave an example and stated if he started sending spam mails to Mr. Bhushan daily that will be annoyance. Mr. Bhushan stated he has no problem with the legitimate use of the IT Act to stop misuse of something which is well defined and clearly of a nature which if not stopped immediately will cause immense public harm. Mr, Bhsuhan stated that social media is a new medium of exercising freedom of speech and people are gradually moving from print to electronic media. J. Chalmeshwar mentioned that on the Internet an information can be accessed by million of people at a go and should that not warrant a special law. Mr. Bhushan replied that it is similar to a television, which is an equally powerful medium but has no excessive restrictions. He also agreed that prior restrictions can be placed on all the mediums, however, it should be seen in what context such restrictions are placed. However, placing a restriction for sending an SMS or Facebook post, which causes annoyance, is not a legitimate ground. It will be an unreasonable restriction and will have such a chilling effect which will ender the democracy meaningless. Democracy cannot function without free speech. J. Bobde added that for appropriate cases courts have powers to issue injunction. J. Chalmeshwar mentioned that freedom to speech does not mean freedom to violate rights of others and Mr. Bhushan agreed that that is the case, however only reasonable restrictions provided under art.19(2) can be applied on speech.

Mr, Bhushan stated that his limited submission is that Freedom of expression is an extremely important right for the working of democracy and therefore the restrictions on it should be carefully looked at and should be reasonable and under the grounds of art. 19(2). Annoyance and other terms mentioned under S.66A are not grounds mentioned under art. 19(2) and speech cannot be restricted on such grounds. Even on the grounds that are provided the restrictions should be reasonable. In the present case a person can be arrested for vague terms and his website or content taken down and this will lead to downfall of democracy. He referred to cases of vagueness including

He stated that S.66A, 69A and 80 is a package where 66A criminalizes and criminalises by use of vague words, 69A provides power to take down content of someone who has either committed the offences under the Act or even likely to commit such offences and 80 provides to power to search, seize and arrest on commission or arrest or on the likelihood of offence. Together these three sections create a regime where anyone who wants to exercise his freedom of speech against anything he considers wrong he runs the risk of being arrested, his content or website being taken down and he being prosecuted.

On being asked by the bench to his objections to s.69A, he stated that he no objection to the Government having a right to take down content however there should be two safeguard, (i) for anything which threatens the security or state or incitement of violence etc. and (ii) there should be safeguards. Some of these safeguards have been provided under the rules. J. Chalmeshwar pointed out that s.69A provides the specific ground for which content can be take down. Mr. Bhushan went through the section and stated that then he has no objection as long as the Government does not step out of these grounds provided. J. Chalmeshwear stated that if someone wrongly imposes s.69A for taking down a harmless cartoon that is an abuse of power and the section in itself and not wrong. Mr. Bhushan stated that as long as this power is restricted to these grounds then he is fine with the section.

He then moved on to s.80 and stated that it provides power to the State to arrest person even before the commission of the offences including under s.66A. J. Chalmeshwar on reading the section asked the ASG why in the amendment act the rank of the officer authorized was downgraded from a Superintendent of Police to an Inspector. The ASG stated that he would check this with the appropriate ministry and get back to the bench.

Mr. Bhsuahn then went to the issue of vagueness and stated that the Court in the case of A.K Roy v. Union of India considered the issue of vagueness rendering a statute unconstitutional. In that case while determining whether the expressions in the law were vague, general and elastic, the Court held that “The impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used by the legislature… The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi v. Union of India. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity…”

He then refereed to the case of Maneka Gandhi to state that a procedure to deprive the person of life and liberty under Art.21 does not mean any procedure and it should be fair and appropriate. He stated that similar requirement would be applicable to art.19 as well.

Mr. Bhushan the refereed to the paper book and read out two paragraphs that were:

“In the case of The State of Madhya Pradesh v. Baldeo Prasad AIR1961 SC 293, this Hon’ble Court has held that Section 4 and 4A of the Central Provinces and Berar Goondas Act suffers from infirmities as the definition of the word “goonda” affords no assistance in deciding which citizen can be put under that category, the result of the such an infirmity is that the Act has left to the unguided and unfettered discretion of the authority concerned to treat any citizen as a goonda, and in holding so has declared the Act to be unconstitutional due to the serious nature of the infirmities in the operative sections (i.e. S 4 and S 4A) of the Act. This Hon’ble Court in the case of K.A. Abbas v. The Union of India 1971 AIR 481 has in passing observed that “it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered.”

The bench then asked Mr. Bhushan whether certain parts of the section could be severed. He stated that cannot be case and if the bench comes to the conclusion that s.66A is vague and does not define offences then the bench should not attempt to define it and it for the Government to define it once the Court strikes it down and it will not be an appropriate exercise for the court to do. He then referred to SCOTUS cases of Musser v. Utah at page 97, Winters v. New York and Grayned v. City of Rockford. He stated if the present law stands everyone would be afraid to say anything against anyone powerful in the country.

He submitted that the grievance in the case is not uncertainty about the common meaning of these terms but as to the clear determination of what conduct is covered under each of these expressions given the general and vague nature of these expressions. He also stated that the standard of certainty in a criminal statue should be the highest and s.66A should be declared void, as it does not provide precise and clear definitions for each of the terms mentioned under it. Under IPC he stated that concrete harm requirement is prescribed in IPC.

He stated that an expression that is grossly offensive to one person need not be so to another and the conduct specified in the section depends completely on sensitivity of each complainant. He also added that most of these terms are used in IPC, there is greater explanation and specificity is provided and clear standards are provided. He submitted that s. 268 of IPC which deals with nuisance holds that a person is guilty of public nuisance only if an act causes annoyance to the public only to the extent that it interferes with a person’s right to enjoy his/her private property or any public right.