Perjury proceedings against wife, RI, Bombay High Court Judgment

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     AURANGABAD BENCH, AURANGABAD




                                                               
                       CRIMINAL APPEAL NO.  266 OF 2007

    Shriram Munjaji Raut,




                                                              
    age 55 years, occ. Labour,
    r/o Shendra, Taluka and
    District Parbhani                                                                 ...Appellant
                                                                         [Original Witness No.2 in




                                             
                                                                                Sessions Case]
            
                  VERSUS
                           
    The State of Maharashtra                                                     ...Respondent
                          
                                              .....
    Shri  Joydeep Chatterjee, advocate for appellant (original accused)
    Smt. Y.M.Kshirsagar, A.P.P.  for respondent/State
                                              .....
      


                                 CORAM  :    SHRIHARI  P.DAVARE, J.
                                 DATED   :    14th  March, 2011
    ORAL JUDGMENT  :-





    1             This appeal is directed against the judgment and order, 

dated 29.6.2007, rendered by the learned Sessions Judge, Parbhani, in Criminal Miscellaneous Application No. 18 of 2007, thereby punishing the appellant under Section 344of the Code of Criminal Procedure, for giving false evidence in Sessions Trial No. 8 of 2006, and sentencing him to suffer rigorous imprisonment for three months and to pay fine of Rs.500/-, in default, rigorous imprisonment for seven days.

                                           2                           cra266.07




                                                                               
    2           The factual matrix, which gave rise for the present appeal, 




                                                       
    can be summarised as under :-




                                                      

Pursuant to the complaint lodged by the first informant, namely Shrirang Munjaji Raut on 14.11.2005, due to death of Meerabai i.e. daughter of the complainant, criminal law was set into motion and the first information report Exh. 20 was lodged bearing C.R. No. 178 of 2005 in respect of offence punishable under Section 306 r/w Section 34 of the Indian Penal Code and the accused persons thereunder were tried in Sessions Trial No. 8 of 2006 by the learned Sessions Judge, Parbhani, and the said accused persons were acquitted for the offence punishable under Sections 498-A306 r/w 34 of the Indian Penal Code.

3 However, the show cause notice came to be issued to Shrirang Munjaji Raut, who was Prosecution Witness No. 2, under Section 344 of the Code of Criminal Procedure for giving false evidence before the court, by the said learned Sessions Judge, Parbhani, by the judgment and the order, dated 13.4.2007, since learned Sessions Judge, Parbhani, arrived at the conclusion that the said first informant, namely Shrirang Raut deposed falsely before the said court in Sessions Trial No. 8 of 2006, and therefore, the learned 3 cra266.07 Sessions Judge observed that in order to have faith of public in judicial process, it is necessary to take action against him.

4 Accordingly, in pursuance of the directions, issued by the learned Sessions Judge, Parbhani, in Sessions Trial No. 8 of 2006, on 13.4.2007, show cause notice was issued to the said witness, namely Shrirang Raut (PW2) under Section 344 of the Code of Criminal Procedure, that why action should not be taken against him under Section 344 of the Code of Criminal Procedure for the offence punishable under Section 193 of the Indian Penal Code for giving false evidence. The said proceeding was numbered as Criminal Miscellaneous Application No. 18 of 2007.

5 The non-applicant, namely Shrirang Munjaji Raut appeared in the said proceeding through the advocate and filed his say and resisted the said proceeding.

6 Considering the evidence on record and the contents of the first information report Exh. 20, and also considering the rival submissions advanced by the learned counsel for the parties, and further considering the position that giving false evidence attracts punishment for seven years under Section 193 of the Indian Penal Code, learned Sessions Judge, Parbhani, by judgment and order 4 cra266.07 dated 29.6.2007, passed in Criminal Miscellaneous Application No. 18 of 2007, punished the non-applicant under Section 344 of the Code of Criminal Procedure for giving false evidence in Sessions Trial No. 8 of 2006 and sentenced him to suffer rigorous imprisonment for three months and to pay fine of Rs.500/-, in default to suffer further rigorous imprisonment for seven days.

Being aggrieved and dissatisfied by the said judgment and order, dated 29.6.2007, the appellant has preferred the present appeal and prayed for quashment thereof.

8 Admittedly, the appellant herein was Prosecution Witness No. 2 in Sessions Trial No. 8 of 2006 before the Sessions Court, Parbhani, who had lodged the first information report Exh. 20, due to death of his daughter, namely Meerabai, under Sections 498-A306 r/w 34 of the Indian Penal Code.

9 Learned Sessions Judge, Parbhani, scrutinized the evidence on record and also assessed the testimony of PW2 i.e. non-applicant/appellant herein, namely Shrirang Munjaji Raut and observed that the matter is settled out of court and close relatives, like father and mother of the deceased, did not support the case of deceased, though father of deceased, namely Shrirang Munjaji Raut 5 cra266.07 i.e. appellant herein had submitted first information report Exh. 20 and set law into motion, and consequently, offence was registered and accused were arrested for the offence under Sections 498-A306 r/w 34 of the Indian Penal Code, but the appellant herein resiled from his allegations in the complaint. Moreover, he was exposed in the cross-examination and it was revealed in his evidence that the contents of his report, when explained to him, were false and he denied the report Exh.20, which was recorded by the police as per his say, and considering his conduct, learned Trial Court arrived at the conclusion that the appellant herein deposed falsely before the court and further observed that in order to have faith of public in judicial process, it was necessary to take action against him.

Accordingly, since Section 344 of the Code of Criminal Procedure empowers the court to take action against the witnesses who deposed falsely before the court and further observed that it is necessary that proceeding under Section 344 of the Code of Criminal Procedure for the offence punishable under Section 193 of the Indian Penal Code is required to be initiated against the appellant herein, and consequently, gave directions to issue show cause notice to the appellant under Section 344 of the Code of Criminal Procedure for giving false evidence before the court that why he should not be punished under Section 193 of the Indian Penal Code, as mentioned herein above.

                                            6                           cra266.07




                                                                                
    10           Sum   and   substance   of   the   matter   is   that   the   appellant 

herein has retracted from his report Exh. 20, although he has filed the same, whereupon criminal law was set into motion, by giving false evidence before the court.

11 Hence, learned Sessions Judge, Parbhani has taken the cognizance of the offence and after giving due and reasonable opportunity to the appellant of showing cause why he should not be punished for said offence, gave summary trial to him and sentenced him for imprisonment for the term of three months and imposed fine of Rs.500/- upon him, under Section 344 of the Code of Criminal Procedure.

12 In the said context, Shri Joydeep Chatterjee, learned counsel for the appellant argued that the appellant is 77 years old person and his one daughter namely Meerabai is already expired and his another daughter got married during the pendency of the appeal and his third daughter, namely Muktabai is mentally retarded person living with him. Moreover, Shri Chatterjee, learned counsel for the appellant also submitted that deceased daughter Meerabai has got two daughters, namely Shruti and Surekha and their entire responsibility is upon the appellant herein. It is also submitted that the appellant is a poor person, and therefore, claimed for leniency in 7 cra266.07 sentencing the appellant and submitted that the appellant has already deposited fine amount of Rs.500/- in court on the date of judgment itself i.e. on 29.6.2007, but as regards the sentence of rigorous imprisonment for three months, prayed that it be reduced to one day i.e. till rising of the court, considering the afore said genuine difficulties of the appellant.

Smt. Y.M.Kshirsagar, learned Additional Public Prosecutor opposed the present appeal vehemently and submitted that in fact, the appellant should have been tried for the offence punishable under Section 193 of the Indian Penal Code for giving the false evidence before the court, but the learned Sessions Judge, Parbhani, while rendering the judgment and order, dated 13.4.2007 in Sessions Trial No. 8 of 2006, directed to issue show cause notice to the appellant under Section 344 of the Code of Criminal Procedure for giving false evidence before the court and invoked the summary procedure for trial for giving the false evidence under Section 344 of the Code of Criminal Procedure, which attracts punishment of rigorous imprisonment for three months and ceiling of fine amount of Rs.500/-, which has been already awarded to the appellant, which is proper and would meet the ends of justice and no interference therein is warranted in the appellate jurisdiction.

                                            8                           cra266.07




                                                                                
    15           Considering   the   rival   submissions   advanced   by   the 

learned counsel for the parties, admittedly direction was issued by the learned Sessions Judge, Parbhani while rendering the judgment and order in Sessions Trial No. 8 of 2006 on 13.4.2007, but issued show cause notice to the appellant under Section 344 of the Code of Criminal Procedure for giving false evidence before the court that why he should not be punished under Section 193 of the Indian Penal Code and learned Sessions Judge, Parbhani has invoked the summary procedure for trial for giving false evidence under Section 344 of the Code of Criminal Procedure and the State has not filed any appeal against the said judgment and order. Accordingly, the appellant was tried in Criminal Miscellaneous Application No. 18 of 2007 summarily under Section 344 of the Code of Criminal Procedure for giving false evidence before the court and took the cognizance of the offence after giving the appellant reasonable opportunity of showing cause why he should not be punished for such offence and sentenced him for imprisonment for the term of three months and also imposed fine of Rs.500/- upon him.

Admittedly, there is ceiling upon the fine amount under Section 344 of the Code of Criminal Procedure at Rs. 500/- and maximum fine amount has been imposed upon him, which has been already deposited by him on 29.6.2007 i.e. the date of judgment and order.

                                             9                           cra266.07




                                                                                 
    16           As regards the punishment imposed upon the appellant 

by sentencing him to suffer rigorous imprisonment for three months, and considering the rival submissions advanced by the learned counsel for the respective parties in that respect, and considering the advance age of the appellant and the dependants upon him and also considering the fact that he has given the false evidence, which deserves proper and appropriate signal to the society that giving false evidence cannot be tolerated and also while striking the balance between them, I am of the view that imposition of rigorous imprisonment for one month upon the appellant instead of rigorous imprisonment for three months would meet the ends of justice.

17 In the result, present appeal is allowed partly and the order of awarding punishment to the appellant under Section 344 of the Code of Criminal Procedure for giving false evidence in Sessions Trial No. 8 of 2006 is confirmed, but the sentence of three months rigorous imprisonment awarded to the appellant by the learned Sessions Judge, Parbhani is modified and the appellant is directed to suffer rigorous imprisonment for one month instead of three months, and the fine of Rs.500/- imposed upon the appellant is maintained and the order to that effect passed by the learned Sessions Judge, Parbhani stands confirmed, and the appeal is disposed of accordingly. The appellant to surrender before the learned Sessions 10 cra266.07 Judge, Parbhani within three weeks from the date of this order, failing which the learned Sessions Judge, Parbhani shall take suitable action against the appellant, in accordance with law. Office to communicate the afore said order to the learned Sessions Judge, Parbhani forthwith.

(SHRIHARI P. DAVARE), JUDGE.

dbm/cra266.07

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Muslims can also be get adoption

Page 1

 

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 470 OF 2005

SHABNAM HASHMI … PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. … RESPONDENT (S)

J U D G M E N T

RANJAN GOGOI, J.

  1. Recognition of the right to adopt and to be adopted as a

fundamental right under Part-III of the Constitution is the

vision scripted by the public spirited individual who has

moved this Court under Article 32 of the Constitution. There

is an alternative prayer requesting the Court to lay down

optional guidelines enabling adoption of children by persons

irrespective of religion, caste, creed etc. and further for a

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direction to the respondent Union of India to enact an

optional law the prime focus of which is the child with

considerations like religion etc. taking a hind seat.

  1. 2. The aforesaid alternative prayer made in the writ

petition appears to have been substantially fructified by the

march that has taken place in this sphere of law, gently

nudged by the judicial verdict in Lakshmi Kant Pandey Vs.

Union of India1 and the supplemental, if not consequential,

legislative innovations in the shape of the Juvenile Justice

(Care And Protection of Children) Act, 2000 as amended in

2006 (hereinafter for short ‘the JJ Act, 2000) as also The

Juvenile Justice (Care and Protection of Children) Rules

promulgated in the year 2007 (hereinafter for short ‘the JJ

Rules, 2007’).

  1. 3. The alternative prayer made in the writ petition may be

conveniently dealt with at the outset.

The decision of this Court in Lakshmi Kant Pandey

(supra) is a high watermark in the development of the law

relating to adoption. Dealing with inter-country adoptions,

1 (1984) 2 SCC 244

2

Page 3

elaborate guidelines had been laid by this Court to protect

and further the interest of the child. A regulatory body, i.e.,

Central Adoption Resource Agency (for short ‘CARA’) was

recommended for creation and accordingly set up by the

Government of India in the year 1989. Since then, the said

body has been playing a pivotal role, laying down norms both

substantive and procedural, in the matter of inter as well as

in country adoptions. The said norms have received

statutory recognition on being notified by the Central Govt.

under Rule 33 (2) of the Juvenile Justice (Care and Protection

of Children) Rules, 2007 and are today in force throughout

the country, having also been adopted and notified by

several states under the Rules framed by the states in

exercise of the Rule making power under Section 68 of the JJ

Act, 2000.

  1. A brief outline of the statutory developments in the

concerned sphere may now be sketched.

In stark contrast to the provisions of the JJ Act, 2000 in

force as on date, the Juvenile Justice Act, 1986 (hereinafter

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for short ‘the JJ Act, 1986’) dealt with only “neglected” and

“delinquent juveniles”. While the provisions of the 1986 Act

dealing with delinquent juveniles are not relevant for the

present, all that was contemplated for a ‘neglected juvenile’

is custody in a juvenile home or an order placing such a

juvenile under the care of a parent, guardian or other person

who was willing to ensure his good behaviour during the

period of observation as fixed by the Juvenile Welfare Board.

The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV

under the head ‘Rehabilitation and Social

Reintegration’ for a child in need of care and protection.

Such rehabilitation and social reintegration was to be carried

out alternatively by adoption or foster care or sponsorship or

by sending the child to an after-care organization. Section

41 contemplates adoption though it makes it clear that the

primary responsibility for providing care and protection to a

child is his immediate family. Sections 42, 43 and 44 of the JJ

Act, 2000 deals with alternative methods of rehabilitation

namely, foster care, sponsorship and being looked after by

an after-care organisation.

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  1. The JJ Act, 2000, however did not define ‘adoption’ and

it is only by the amendment of 2006 that the meaning

thereof came to be expressed in the following terms:

“2(aa)-“adoption” means the process through

which the adopted child is permanently separated

from his biological parents and become the

legitimate child of his adoptive parents with all the

rights, privileges and responsibilities that are

attached to the relationship”

  1. In fact, Section 41 of the JJ Act, 2000 was substantially

amended in 2006 and for the first time the responsibility of

giving in adoption was cast upon the Court which was

defined by the JJ Rules, 2007 to mean a civil court having

jurisdiction in matters of adoption and guardianship including

the court of the district judge, family courts and the city civil

court. [Rule 33 (5)] Substantial changes were made in the

other sub-sections of Section 41 of the JJ Act, 2000. The

CARA, as an institution, received statutory recognition and so

did the guidelines framed by it and notified by the Central

Govt. [Section 41(3)].

  1. In exercise of the rule making power vested by Section

68 of the JJ Act, 2000, the JJ Rules, 2007 have been enacted.

5

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Chapter V of the said Rules deal with rehabilitation and

social reintegration. Under Rule 33(2) guidelines issued

by the CARA, as notified by the Central Government under

Section 41 (3) of the JJ Act, 2000, were made applicable to all

matters relating to adoption. It appears that pursuant to the

JJ Rules, 2007 and in exercise of the rule making power

vested by the JJ Act, 2000 most of the States have followed

suit and adopted the guidelines issued by CARA making the

same applicable in the matter of adoption within the

territorial boundaries of the concerned State.

Rules 33(3) and 33(4) of the JJ Rules, 2007 contain

elaborate provisions regulating pre-adoption procedure i.e.

for declaring a child legally free for adoption. The Rules also

provide for foster care (including pre-adoption foster care) of

such children who cannot be placed in adoption & lays down

criteria for selection of families for foster care, for

sponsorship and for being looked after by an aftercare

organisation. Whatever the Rules do not provide for are

supplemented by the CARA guidelines of 2011 which

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additionally provide measures for post adoption follow up

and maintenance of data of adoptions.

  1. It will now be relevant to take note of the stand of the

Union of India. Way back on 15th May, 2006 the Union in its

counter affidavit had informed the Court that prospective

parents, irrespective of their religious background, are free

to access the provisions of the Act for adoption of children

after following the procedure prescribed. The progress on

the ground as laid before the Court by the Union of India

through the Ministry of Women and Child Development

(respondent No. 3 herein) may also be noticed at this stage.

The Union in its written submission before the Court has

highlighted that at the end of the calendar year 2013 Child

Welfare Committees (CWC) are presently functioning in a

total of 619 districts of the country whereas State Adoption

Resource Agencies (SARA) has been set up in 26

States/Union Territories; Adoption Recommendation

Committees (ARCs) have been constituted in 18 States/Union

Territories whereas the number of recognized adoption

organisations in the country are 395. According to the Union

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the number of reported adoptions in the country from

January, 2013 to September, 2013 was 19884 out of which

1712 cases are of inter-country adoption. The third

respondent has also drawn the attention of the Court that

notwithstanding the time schedule specified in the guidelines

of 2011 as well as in the JJ Rules, 2007 there is undue delay

in processing of adoption cases at the level of Child Welfare

Committees (CWS), the Adoption Recommendation

Committees (ARCs) as well as the concerned courts.

  1. In the light of the aforesaid developments, the

petitioner in his written submission before the Court, admits

that the JJ Act, 2000 is a secular law enabling any person,

irrespective of the religion he professes, to take a child in

adoption. It is akin to the Special Marriage Act 1954, which

enables any person living in India to get married under that

Act, irrespective of the religion he follows. JJA 2000 with

regard to adoption is an enabling optional gender-just law, it

is submitted. In the written arguments filed on behalf of the

petitioner it has also been stated that in view of the

enactment of the JJ Act, 2000 and the Amending Act of 2006

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the prayers made in the writ petition with regard to

guidelines to enable and facilitate adoption of children by

persons irrespective of religion, caste, creed etc. stands

satisfactorily answered and that a direction be made by this

Court to all States, Union Territories and authorities under

the JJ Act, 2000 to implement the provisions of Section 41 of

the Act and to follow the CARA guidelines as notified.

  1. The All India Muslim Personal Law Board (hereinafter

referred to as ‘the Board’) which has been allowed to

intervene in the present proceeding has filed a detailed

written submission wherein it has been contended that under

the JJ Act, 2000 adoption is only one of the methods

contemplated for taking care of a child in need of care and

protection and that Section 41 explicitly recognizes foster

care, sponsorship and being look after by after-care

organizations as other/ alternative modes of taking care of

an abandoned/surrendered child. It is contended that Islamic

Law does not recognize an adopted child to be at par with a

biological child. According to the Board, Islamic Law

professes what is known as the “Kafala” system under which

9

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the child is placed under a ‘Kafil’ who provides for the well

being of the child including financial support and thus is

legally allowed to take care of the child though the child

remains the true descendant of his biological parents and not

that of the “adoptive” parents. The Board contends that the

“Kafala” system which is recognized by the United Nation’s

Convention of the Rights of the Child under Article 20(3) is

one of the alternate system of child care contemplated by

the JJ Act, 2000 and therefore a direction should be issued to

all the Child Welfare Committees to keep in mind and follow

the principles of Islamic Law before declaring a muslim child

available for adoption under Section 41(5) of the JJ Act, 2000.

  1. The JJ Act, 2000, as amended, is an enabling legislation

that gives a prospective parent the option of adopting an

eligible child by following the procedure prescribed by the

Act, Rules and the CARA guidelines, as notified under the

Act. The Act does not mandate any compulsive action by

any prospective parent leaving such person with the liberty

of accessing the provisions of the Act, if he so desires. Such

a person is always free to adopt or choose not to do so and,

1

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instead, follow what he comprehends to be the dictates of

the personal law applicable to him. To us, the Act is a small

step in reaching the goal enshrined by Article 44 of the

Constitution. Personal beliefs and faiths, though must be

honoured, cannot dictate the operation of the provisions of

an enabling statute. At the cost of repetition we would like to

say that an optional legislation that does not contain an

unavoidable imperative cannot be stultified by principles of

personal law which, however, would always continue to

govern any person who chooses to so submit himself until

such time that the vision of a uniform Civil Code is achieved.

The same can only happen by the collective decision of the

generation(s) to come to sink conflicting faiths and beliefs

that are still active as on date.

  1. The writ petitioner has also prayed for a declaration that

the right of a child to be adopted and that of the prospective

parents to adopt be declared a fundamental right under

Article 21 of the Constitution. Reliance is placed in this

regard on the views of the Bombay and Kerala High Courts in

In re: Manuel Theodore D’souza2 and Philips Alfred

2 (2000) 3 BomCR 244

11

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Malvin Vs. Y.J.Gonsalvis & Ors.3 respectively. The Board

objects to such a declaration on the grounds already been

noticed, namely, that Muslim Personal Law does not

recognize adoption though it does not prohibit a childless

couple from taking care and protecting a child with material

and emotional support.

  1. Even though no serious or substantial debate has been

made on behalf of the petitioner on the issue, abundant

literature including the holy scripts have been placed before

the Court by the Board in support of its contention, noted

above. Though enriched by the lengthy discourse laid before

us, we do not think it necessary to go into any of the issues

raised. The Fundamental Rights embodied in Part-III of the

Constitution constitute the basic human rights which inhere

in every person and such other rights which are fundamental

to the dignity and well being of citizens. While it is correct

that the dimensions and perspectives of the meaning and

content of fundamental rights are in a process of constant

evolution as is bound to happen in a vibrant democracy

where the mind is always free, elevation of the right to adopt

3 AIR 1999 Kerala 187

12

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or to be adopted to the status of a Fundamental Right, in our

considered view, will have to await a dissipation of the

conflicting thought processes in this sphere of practices and

belief prevailing in the country. The legislature which is

better equipped to comprehend the mental preparedness of

the entire citizenry to think unitedly on the issue has

expressed its view, for the present, by the enactment of the

JJ Act 2000 and the same must receive due respect.

Conflicting view points prevailing between different

communities, as on date, on the subject makes the vision

contemplated by Article 44 of the Constitution i.e. a Uniform

Civil Code a goal yet to be fully reached and the Court is

reminded of the anxiety expressed by it earlier with regard to

the necessity to maintain restraint. All these impel us to take

the view that the present is not an appropriate time and

stage where the right to adopt and the right to be adopted

can be raised to the status of a fundamental right and/or to

understand such a right to be encompassed by Article 21 of

the Constitution. In this regard we would like to observe that

the decisions of the Bombay High Court in Manuel

Theodore D’souza (supra) and the Kerala High Court in

13

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Philips Alfred Malvin (supra) can be best understood to

have been rendered in the facts of the respective cases.

While the larger question i.e. qua Fundamental Rights was

not directly in issue before the Kerala High Court, in Manuel

Theodore D’souza (supra) the right to adopt was consistent

with the canonical law applicable to the parties who were

Christians by faith. We hardly need to reiterate the well

settled principles of judicial restraint, the fundamental of

which requires the Court not to deal with issues of

Constitutional interpretation unless such an exercise is but

unavoidable.

  1. Consequently, the writ petition is disposed of in terms of

our directions and observations made above.

……………………………CJI.

[P. SATHASIVAM]

………………………………J.

[RANJAN GOGOI]

………….……………………J.

[SHIVA KIRTI SINGH]

NEW DELHI,

FEBRUARY 19, 2014.

14

HC take action against wife for the offence of perjury

R/SCR.A/7666/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7666 of 2016
==========================================================
SEJALBEN TEJASBHAI CHOVATIYA….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
==========================================================
Appearance:
MR K S CHANDRANI, ADVOCATE for the Applicant(s) No. 1
MR RONAK RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 20/10/2016
ORAL ORDER
1. Leave to amend to join the husband as respondent
No.2 is permitted. To be carried out forthwith.
2. At the outset, it is to be mentioned that in this
petition,   challenge   is   made   to   the   order   dated
6.9.2016   passed   by   the   learned   Judge,   Family
Court   below   Exh.88   in   Criminal   Miscellaneous
Application No.346 of 2013, attempts were made by
the Court to see that the parties can reach to
any   kind   of   settlement.   However,   as   the   same
could not be worked out, both the sides have been
heard   extensively.   The   petitioner   is   the   wife,
who is married to respondent No.2.
3. The petitioner is married to respondent No.2 on
Page 1 of 12
HC-NIC Page 1 of
12
Created On Sat Nov 12 11:31:58 IST 2016
R/SCR.A/7666/2016 ORDER
20.11.2008 and a son is begotten out of the said
wedlock   on   21.12.2010.   It   is   the   say   of   the
petitioner that after the birth of the son, the
husband   got   shifted   at   Jetpur   and   started
residing in a rented premise. He had once again
started residing with joint family at Rajkot. The
petitioner urged that she was deserted in August,
2012 and thereafter she made an application under
section   125   of   the   Criminal   Procedure   Code   by
preferring   Criminal   Miscellaneous   Application
No.346 of 2013 for herself and her son.
4. The trial Court, on an application Exh.88 under
sections   195   and   340   of   the   Code   of   Criminal
Procedure   preferred   by   respondent   No.2   on
13.5.2016,   recorded   the   evidence   on   both   the
sides and directed the Registrar of Family Court
to file an application before the Pradyuman Nagar
police station under sections 191,192 and 193 of
the Indian Penal Code.
5. After staying the said order for a period of 30
days, the dissatisfied wife is before this Court
with various averments and following reliefs:­
Page 2 of 12
HC-NIC Page 2 of
12
Created On Sat Nov 12 11:31:58 IST 2016
R/SCR.A/7666/2016 ORDER
“(10) The   petitioner   on   the   aforesaid
premises, prays before Your Lordships that:
(A) Your  Lordships may  kindly  be  pleased  to
quash   and   set   aside   the   Order   impugned
Dt.6/09/2016   passed   by   the   learned   Judge
Family   Court,   Rajkot   below   Ex­88   in
Cri.M.A.No.346 of 2013.
(B) Pending   admission,   hearing   and   final
disposal   of   present   application,   Your
Lordships   may   kindly   be   pleased   to   stay   the
implementation,   execution   and   compliance   of
the Order Dt. 6/09/2016 passed by the learned
Judge   Family   Court,   Rajkot   below   Exh­88   in
Cri.M.A.No.346 of 2013.
(C) Your  Lordships may  kindly  be  pleased  to
pass such other and further relief as may be
deemed   just   and   proper   in   favour   of   the
petitioners, in the interest of justice.”
6. Learned   advocate   Chandrani   appearing   for   the
petitioner  has urged that  even  if  there  is  any
perjury, the petitioner need not be prosecuted.
He   has   urged   that   Court   below   was   in   error   in
appreciating   the   evidence,   specifically   the
income tax return to conclude that the petitioner
had   suppressed   her   true   income.   It   is   not   the
case of the petitioner that she was serving and
was   drawing   the   salary.   Her   income   tax   returns
have   been   managed   by   her   father   and   it   is   not
unusual for family members to have the income tax
returns   from   the   business   of   family.   It   is
further   his   say   that   the   lady   is   a   graduate.
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However,   she   would   not   know   about   any   return
being filed by the father nor would she be aware
of the income of the family members and of hers
in absence of any work that she was performing.
It is not the case of the other side that she was
serving and getting the salary from the account
of Kirit Traders owned by her father.
7. He further has urged that the order passed by the
learned   Judge   is   contrary   to   the   provision   of
sections   195   and   340   of   the   Indian   Penal   Code
and,   therefore,   also   the   same   deserves   to   be
quashed.
8. Learned   advocate   appearing   for   respondent   No.2
has   urged   that   it   is   very   rare   that   the   Court
would go out of the way to hold that perjury has
been  committed and,  in  the instant  case,  it  is
quite obvious  from  the  record that  she had  not
revealed   the   fact   that   she   is   given   permanent
alimony of the sum of Rs.4,00,000/­ so also all
her income is shown under the Income­Tax Act.
9. Learned   Additional   Public   Prosecutor   for
respondent   No.1   has   urged   this   Court   not   to
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interfere.   According   to   him,   the   Court   has   in
detail   given   the   reasonings   for   initiating   the
proceedings against the present petitioner.
10. Admittedly, this order has arisen on account
of the affidavit given by the petitioner, wherein
she   declared   herself   a   house­wife   having   no
source   of   income.   However,   she   has   admitted   in
her cross­examination that she has obtained Rs.4
lakhs from  her previous husband  at  the time  of
taking divorce from him.
11. An application came to be moved before the
Family   Court,   Ahmedabad   by   the   husband   that
though   she   is   earning   a   salary   of   Rs.40,000/­
from business, she has mentioned in her affidavit
that   she  is  a   house   wife   and   has  no  source   of
income.   The   earlier   application   came   to   be
disposed of on the ground that the evidence was
not recorded.
12. Later   on,   when   similar   application   came   to
be moved, the Court had questioned as to whether
the applicant had produced false evidence on oath
and vide order dated 23.5.2016 directed that the
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same would be decided at the time of deciding the
main application.
13. Another   application   came   to   be   moved   being
Criminal   Revision   Application   No.429   of   2016
before   this   Court,   which   was   withdrawn   on
10.8.2016.   Thereafter,   an   application   was   moved
before   the   Family   Court,   Rajkot   to   take   action
against   the   petitioner   under   sections   195   read
with   section   340   of   the   Code   of   Criminal
Procedure   committing   an   offence   under   sections
191, 192 and 193 of the Indian Penal Code. The
Court   below   held   in   affirmation,   which   has
aggrieved   the   petitioner   for   ventilating   the
grievance in this petition memo.
14. This   Court   notices   that   the   Court   has
elaborately   discussed   the   law   and   applied   the
said law to the facts to hold that the petitioner
has not stated the correct facts on oath. She has
stated  that she  was  doing  house­hold  work   and
has   no   source   of   income   while   her   income   is
Rs.40,000/­ per month from the business. She has
of course, revealed that she has received sum of
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Rs.   4   lakhs   from   the   earlier   marriage.   With
regard to the income tax returns, she is found to
have   given   false   evidence.   With   regard   to   the
fixed   deposit   and   the   amount   that   has   been
credited in her FDR, she stated that she has no
knowledge with regard to her accounts in Central
Bank of India and Rajkot Co­operative Bank. The
husband   also   examined   the   witness,   who   was
Inspector   in   the   Income­Tax   Department,   wherein
she submitted her personal income and her incometax
returns have  been  brought on the  record  to
indicate   that   from   the   year   2011­12   she   has
income   from   business   at   Rs.1,48,251/­.   The
business   profit   was   worth   Rs.1,84,251/­.   The
Court   has   given   the   details   from   Income­Tax
returns of her income of every assessment year.
Senior Manager of Central Bank of India of Rajkot
also has given the details that total of Rs. 17
lakhs,   which   are   deposited   in   the   name   of   the
petitioner   that   towards   the   fixed   deposit
receipt, which she has not disclosed. The Court
on   noticing   that   she   was   getting   sufficient
income from the fixed deposit receipt and yet has
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not   admitted   in   the   evidence   produced   by   her
stating   that   she   has   no   source   of   income,   had
directed the initiation of the prosecution under
section 195 read with section 340 of the Code of
Criminal Procedure.
15. The Apex Court in the case of  Pritish   vs.
State of Maharashtra reported in 2002(1) SCC 253
was   considering   section   340   of   the   Code   of
Criminal Procedure to hold that the hub of this
provision   is   formation   of   an   opinion   by   the
court(before which proceedings were to be held)
that it is expedient in the interest of justice
that  an  inquiry  should  be  made  into an offence
which appears to have been committed. In order to
form such opinion the Court is empowered to hold
a preliminary inquiry. It is not peremptory that
such   preliminary   inquiry   should   be   held.   Even
without   such   preliminary   inquiry   the   Court   can
form such an opinion when it appears to the Court
that an offence has been committed in relation to
a  proceeding  in  that Court.  It  is  important  to
notice   that   even   when   the   Court   forms   such   an
opinion,   it   is   not   mandatory   that   the   court
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should   make   a   complaint.   This   sub­section   has
conferred a power in the Court to do so. It does
not mean that the Court should, as a matter of
course,   make   a   complaint.   But   once   the   Court
decides to do so, then the Court should make a
finding to the effect that on the fact situation
it is expedient in the interest of justice that
the offence should further be probed into. If the
Court finds it necessary to conduct a preliminary
inquiry to reach such a finding it is always open
to the Court to do so, though absence of any such
preliminary inquiry would not vitiate a finding
reached by the Court regarding its opinion. The
purpose of preliminary inquiry, even if the Court
opts to conduct it, is only to decide whether it
is   expedient   in   the   interest   of   justice   to
inquire   into   the   offence   which   appears   to   have
been committed.
16. Likewise,   in   the   decision   rendered   by   the
Apex Court in the case of Iqbal Singh Marwah and
another   vs.   Meenakshi   Marwah   and   another
reported   in  (2005)   4   SCC   370,   it   has   been
emphasized   that   even   when   there   is   a   case   of
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forgery noticed by the Court and the Court forms
the  opinion that  unless it is expedient  in  the
interest   of   justice   to   prosecute   a   person,   the
Court is not to do it in a referred manner.  The
expediency will normally be judged by the Court
by weighing not the magnitude of injury suffered
by the person affected by the offence, but having
regard  to  the  effect or impact  of  that offence
upon   administration   of   justice.   The   Court   also
held that bar under section 195(1)(b)(ii) that no
Court shall take cognizance of any such offence
except   on   the   complaint   in   writing   of   such
matter.   It   also   held   that   the   bar   would   be
attracted   only   when   the   offences   enumerated   in
section   195(1)(b)(ii)   have   been   committed   with
respect to a document, after it has been produced
or   given   in   evidence   in   a   proceeding   in   any
Court. If said offence is committed or given  in
evidence in Court, no complaint by Court would be
necessary   and   a   private   complaint   would   be
maintainable.
17. The only aspect that needs to be considered
by this Court is as to whether it is expedient in
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the   interest   of   justice   that   such   prosecution
would be necessary. This expediency, as held by
Apex Court, is not weighing the magnitude of the
injury suffered by the person affected by it but
having   regard to the effect or impact that the
offence would have on administration of justice
and considering the factual scenario, the Court
has formed a preliminary opinion to hold that it
is a case of perjury.
18. As   can   be   noticed   from   the   chronology   of
events   and   the   evidence   that   has   been   adduced
before   the   Court   concerned,   it   is   certain   that
the injury which could have been sustained by the
other side  has not  resulted  on  account of this
alleged   falsehood   because   respondent   No.2   could
find out at an appropriate time the details which
he has furnished before the Court. So far as its
impact   on   the   administration   of   justice   is
concerned, this Court has no reason to interfere
as often it is found that  the litigants  coming
before the Court chose to speak blatant lies and
do so with complete impudence.
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19. Laws   which   are   otherwise   in   favour   of   the
distressed wife when are sought to be misused by
declaring completely incorrect facts and also by
suppressing the material aspect, the trial Court
at the  time of considering the  case found that
the impact on the administration of justice would
make   it   expedient   for   it   to   direct   the
prosecution.
20. This   Court   finds   no   justification   in
interfering with the order. Even otherwise, the
petitioner is going to get all the opportunities
to   defend   her   case   effectively.   It   is   also,
therefore,   necessary   for   this   Court   not   to
elaborate further on the merits of the matter.
21. Petition   stands   disposed   of   with   above
directions.
(MS SONIA GOKANI, J.)
SUDHIR
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Page 1 REPORTABL E IN THE SUPREME COURT OF INDIA CRIMINAL APPELATE JURISDICTION CRIMINAL APPEAL Nos.2032-2033 of 2012 (Arising out of SLP (Criminal) Nos. 8076-8077 of 2010 Deoki Panjhiyara …Appellant Versus Shashi Bhushan Narayan Azad & Anr. … Respondents J U D G M E N T RANJAN GOGOI, J. 1. Leave granted. 2. The appellant, […]

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO.167 OF 2012

SHREYA SINGHAL … PETITIONER

VERSUS

UNION OF INDIA … RESPONDENT

WITH WRIT PETITION (CIVIL) NO.21 OF 2013 WRIT PETITION (CIVIL) NO.23 OF 2013 WRIT PETITION (CIVIL) NO. 97 OF 2013 WRIT PETITION (CRIMINAL) NO.199 OF 2013 WRIT PETITION (CIVIL) NO. 217 OF 2013 WRIT PETITION (CRIMINAL) NO.222 OF 2013 WRIT PETITION (CRIMINAL) NO.225 OF 2013 WRIT PETITION (CIVIL) NO.758 OF 2014 WRIT PETITION (CRIMINAL) NO.196 OF 2014 1 J U D G M E N T R.F. NARIMAN, J. 1. This batch of writ petitions filed under Article 32 of the Constitution of India raises very important and far-reaching questions relatable primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The immediate cause for concern in these petitions is Section 66A of the Information Technology Act of 2000. This Section was not in the Act as originally enacted, but came into force by virtue of an Amendment Act of 2009 with effect from 27.10.2009. Since all the arguments raised by several counsel for the petitioners deal with the unconstitutionality of this Section it is set out hereinbelow: “66-A. Punishment for sending offensive messages through communication service, etc. —Any person who sends, by means of a computer resource or a communication device,— (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such 2 computer resource or a communication device; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine. Explanation.— For the purposes of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.”1 1 The genealogy of this Section may be traced back to Section 10(2)(a) of the U.K. Post Office (Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character. This Section was substantially reproduced by Section 66 of the UK Post Office Act, 1953 as follows: 66. Prohibition of sending offensive or false telephone messages or false telegrams, etc. If any person— (a)sends any message by telephone which is grossly offensive or of an indecent, obscene or menacing character ; (b)sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience or needless anxiety to any other person ; or (c)persistently makes telephone calls without reasonable cause and for any such purpose as aforesaid, he shall be liable on summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both. This Section in turn was replaced by Section 49 of the British Telecommunication Act, 1981 and Section 43 of the British Telecommunication Act, 1984. In its present form in the UK, it is Section 127 of the Telecommunication Act, 2003 which is relevant and which is as follows:- 127. Improper use of public electronic communications network (1) A person is guilty of an offence if he – (a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) cause any such message or matter to be so sent. 3 2. A related challenge is also made to Section 69A introduced by the same amendment which reads as follows:- “69-A. Power to issue directions for blocking for public access of any information through any computer resource.—(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed. (2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he- (a) sends by means of a public electronic communications network, a message that he knows to be false, (b) causes such a message to be sent; or (c) persistently makes use of a public electronic communications network. (3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. (4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c.42)). 4 (3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.” 3. The Statement of Objects and Reasons appended to the Bill which introduced the Amendment Act stated in paragraph 3 that: “3. A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation commonly known as Phishing, identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the code of Criminal Procedure to prevent such crimes.” 4. The petitioners contend that the very basis of Section 66A – that it has given rise to new forms of crimes – is incorrect, and that Sections 66B to 67C and various Sections of the Indian Penal Code (which will be referred to hereinafter) are good enough to deal with all these crimes. 5 5. The petitioners’ various counsel raised a large number of points as to the constitutionality of Section 66A. According to them, first and foremost Section 66A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2). According to them, the causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will are all outside the purview of Article 19(2). Further, in creating an offence, Section 66A suffers from the vice of vagueness because unlike the offence created by Section 66 of the same Act, none of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said Section. In fact, a large number of innocent persons have been booked and many instances have been given in the form of a note to the Court. The enforcement of the said Section would really be an insidious form of censorship which impairs a core 6 value contained in Article 19(1)(a). In addition, the said Section has a chilling effect on the freedom of speech and expression. Also, the right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in terms of various points of view that could be viewed over the internet. The petitioners also contend that their rights under Articles 14 and 21 are breached inasmuch there is no intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication. To punish somebody because he uses a particular medium of communication is itself a discriminatory object and would fall foul of Article 14 in any case. 6. In reply, Mr. Tushar Mehta, learned Additional Solicitor General defended the constitutionality of Section 66A. He argued that the legislature is in the best position to understand and appreciate the needs of the people. The Court will, therefore, interfere with the legislative process only when a statute is clearly violative of the rights conferred on the citizen 7 under Part-III of the Constitution. There is a presumption in favour of the constitutionality of an enactment. Further, the Court would so construe a statute to make it workable and in doing so can read into it or read down the provisions that are impugned. The Constitution does not impose impossible standards of determining validity. Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may have been used in Section 66A to deal with novel methods of disturbing other people’s rights by using the internet as a tool to do so. Further, vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary. He cited a large number of judgments before us both from this Court and from overseas to buttress his submissions. Freedom of Speech and Expression Article 19(1)(a) of the Constitution of India states as follows: “Article 19. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (a) to freedom of speech and expression;” 8 7. Article 19(2) states: “Article 19. Protection of certain rights regarding freedom of speech, etc.—(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” 8. The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It cannot be over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme. 9. Various judgments of this Court have referred to the importance of freedom of speech and expression both from the point of view of the liberty of the individual and from the point of view of our democratic form of government. For example, in 9 the early case of Romesh Thappar v. State of Madras, [1950] S.C.R. 594 at 602, this Court stated that freedom of speech lay at the foundation of all democratic organizations. In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at 866, a Constitution Bench of this Court said freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved. In a separate concurring judgment Beg,J. said, in Bennett Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829, that the freedom of speech and of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.2 10. Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 this Court stated, in paragraph 45 that the importance of freedom of speech and expression though not absolute was 2 Incidentally, the Ark of the Covenant is perhaps the single most important focal point in Judaism. The original ten commandments which the Lord himself gave to Moses was housed in a wooden chest which was gold plated and called the Ark of the Covenant and carried by the Jews from place to place until it found its final repose in the first temple – that is the temple built by Solomon. 10 necessary as we need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance, the culture of open dialogue is generally of great societal importance. 11. This last judgment is important in that it refers to the “market place of ideas” concept that has permeated American Law. This was put in the felicitous words of Justice Holmes in his famous dissent in Abrams v. United States, 250 US 616 (1919), thus: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” 12. Justice Brandeis in his famous concurring judgment in Whitney v. California, 71 L. Ed. 1095 said: 11 “Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. 12 Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.” (at page 1105, 1106) 13 13. This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.3 It is at this stage that a law may be made curtailing the speech or expression that leads 3 A good example of the difference between advocacy and incitement is Mark Antony’s speech in Shakespeare’s immortal classic Julius Caesar. Mark Antony begins cautiously. Brutus is chastised for calling Julius Caesar ambitious and is repeatedly said to be an “honourable man”. He then shows the crowd Caesar’s mantle and describes who struck Caesar where. It is at this point, after the interjection of two citizens from the crowd, that Antony says- “ANTONY- Good friends, sweet friends, let me not stir you up To such a sudden flood of mutiny. They that have done this deed are honourable: What private griefs they have, alas, I know not, That made them do it: they are wise and honourable, And will, no doubt, with reasons answer you. I come not, friends, to steal away your hearts: I am no orator, as Brutus is; But, as you know me all, a plain blunt man, That love my friend; and that they know full well That gave me public leave to speak of him: For I have neither wit, nor words, nor worth, Action, nor utterance, nor the power of speech, To stir men’s blood: I only speak right on; I tell you that which you yourselves do know; Show you sweet Caesar’s wounds, poor poor dumb mouths, And bid them speak for me: but were I Brutus, And Brutus Antony, there were an Antony Would ruffle up your spirits and put a tongue In every wound of Caesar that should move The stones of Rome to rise and mutiny. ALL- We’ll mutiny.” 14 inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc. Why it is important to have these three concepts in mind is because most of the arguments of both petitioners and respondents tended to veer around the expression “public order”. 14. It is at this point that a word needs to be said about the use of American judgments in the context of Article 19(1)(a). In virtually every significant judgment of this Court, reference has been made to judgments from across the Atlantic. Is it safe to do so? 15. It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the U.S. first Amendment – Congress shall make no law which abridges the freedom of speech. Second, whereas the U.S. First Amendment speaks of freedom of speech and of the press, without any reference to “expression”, Article 19(1)(a) speaks of 15 freedom of speech and expression without any reference to “the press”. Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions have to be in the interest of eight designated subject matters – that is any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2). 16. Insofar as the first apparent difference is concerned, the U.S. Supreme Court has never given literal effect to the declaration that Congress shall make no law abridging the freedom of speech. The approach of the Court which is succinctly stated in one of the early U.S. Supreme Court Judgments, continues even today. In Chaplinsky v. New Hampshire, 86 L. Ed. 1031, Justice Murphy who delivered the opinion of the Court put it thus:- “Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not 16 absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed.1213, 128 A.L.R. 1352.” (at page 1035) 17. So far as the second apparent difference is concerned, the American Supreme Court has included “expression” as part of freedom of speech and this Court has included “the press” as being covered under Article 19(1)(a), so that, as a matter of judicial interpretation, both the US and India protect the freedom of speech and expression as well as press freedom. Insofar as abridgement and reasonable restrictions are concerned, both the U.S. Supreme Court and this Court have 17 held that a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary. It is only when it comes to the eight subject matters that there is a vast difference. In the U.S., if there is a compelling necessity to achieve an important governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the eight subject matters set out under Article 19(2). If it does not, and is outside the pale of 19(2), Indian courts will strike down such law. 18. Viewed from the above perspective, American judgments have great persuasive value on the content of freedom of speech and expression and the tests laid down for its infringement. It is only when it comes to sub-serving the general public interest that there is the world of a difference. This is perhaps why in Kameshwar Prasad & Ors. v. The State of Bihar & Anr., 1962 Supp. (3) S.C.R. 369, this Court held: 18 “As regards these decisions of the American Courts, it should be borne in mind that though the First Amendment to the Constitution of the United State reading “Congress shall make no law…. abridging the freedom of speech…” appears to confer no power on the Congress to impose any restriction on the exercise of the guaranteed right, still it has always been understood that the freedom guaranteed is subject to the police power – the scope of which however has not been defined with precision or uniformly. It is on the basis of the police power to abridge that freedom that the constitutional validity of laws penalising libels, and those relating to sedition, or to obscene publications etc., has been sustained. The resultant flexibility of the restrictions that could be validly imposed renders the American decisions inapplicable to and without much use for resolving the questions arising under Art. 19(1) (a) or (b) of our Constitution wherein the grounds on which limitations might be placed on the guaranteed right are set out with definiteness and precision.” ( At page 378) 19. But when it comes to understanding the impact and content of freedom of speech, in Indian Express Newspapers (Bombay) Private Limited & Ors. v. Union of India & Ors., (1985) 2 SCR 287, Venkataramiah,J. stated: “While examining the constitutionality of a law which is alleged to contravene Article 19 (1) (a) of the Constitution, we cannot, no doubt, be solely guided by the decisions of the Supreme Court of the United States of America. But in order to understand the basic principles of freedom of speech and expression and the need for that freedom in a 19 democratic country, we may take them into consideration. The pattern of Article 19 (1) (a) and of Article 19 (1) (g) of our constitution is different from the pattern of the First Amendment to the American Constitution which is almost absolute in its terms. The rights guaranteed under Article 19 (1) (a) and Article 19 (1) (g) of the Constitution are to be read along with clauses (2) and (6) of Article 19 which carve out areas in respect of which valid legislation can be made.” (at page 324) 20. With these prefatory remarks, we will now go to the other aspects of the challenge made in these writ petitions and argued before us. A. Article 19(1)(a) – Section 66A has been challenged on the ground that it casts the net very wide – “all information” that is disseminated over the internet is included within its reach. It will be useful to note that Section 2(v) of Information Technology Act, 2000 defines information as follows: “2. Definitions.—(1) In this Act, unless the context otherwise requires,— (v) “Information” includes data, message, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche.” 20 Two things will be noticed. The first is that the definition is an inclusive one. Second, the definition does not refer to what the content of information can be. In fact, it refers only to the medium through which such information is disseminated. It is clear, therefore, that the petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A. That the information sent has to be annoying, inconvenient, grossly offensive etc., also shows that no distinction is made between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc. The petitioners are right in saying that Section 66A in creating an 21 offence against persons who use the internet and annoy or cause inconvenience to others very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66A. In this regard, the observations of Justice Jackson in American Communications Association v. Douds, 94 L. Ed. 925 are apposite: “Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.” B. Article 19(2) One challenge to Section 66A made by the petitioners’ counsel is that the offence created by the said Section has no proximate relation with any of the eight subject matters contained in Article 19(2). We may incidentally mention that the State has claimed that the said Section can be supported under 22 the heads of public order, defamation, incitement to an offence and decency or morality. 21. Under our constitutional scheme, as stated earlier, it is not open to the State to curtail freedom of speech to promote the general public interest. In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842, this Court said: “It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of Article 19. Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to 23 enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom.” (at page 863) 22. Before we come to each of these expressions, we must understand what is meant by the expression “in the interests of”. In The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821, this Court laid down: “We do not understand the observations of the Chief Justice to mean that any remote or fanciful connection between the impugned Act and the public order would be sufficient to sustain its validity. The learned Chief Justice was only making a distinction between an Act which expressly and directly purported to maintain public order and one which did not expressly state the said purpose but left it to be implied there from; and between an Act that directly maintained public order and that indirectly brought about the same result. The distinction does not ignore the necessity for intimate connection between the Act and the public order sought to be maintained by the Act.” (at pages 834, 835) “The restriction made “in the interests of public order” must also have reasonable relation to the 24 object to be achieved, i.e., the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause.” (at page 835) “The decision, in our view, lays down the correct test. The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order.………There is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under section. We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order” (at page 836). Reasonable Restrictions: 23. This Court has laid down what “reasonable restrictions” means in several cases. In Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R. 759, this Court said: “The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. 25 Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.” (at page 763) 24. In State of Madras v. V.G. Row, [1952] S.C.R. 597, this Court said: “This Court had occasion in Dr. Khare’s case (1950) S.C.R. 519 to define the scope of the judicial review under clause (5) of Article19 where the phrase “imposing reasonable restriction on the exercise of the right” also occurs and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, where ever prescribed, should be applied to each, individual statute impugned and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors 26 and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self- restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.” (at page 606-607) 25. Similarly, in Mohd. Faruk v. State of Madhya Pradesh & Ors., [1970] 1 S.C.R. 156, this Court said: “The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen’s freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency-national or local-or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for 27 imposing the restriction is made out or that a less drastic restriction may ensure the object intended to be achieved.” (at page 161) 26. In Dr. N. B. Khare v. State of Delhi, [1950] S.C.R. 519, a Constitution Bench also spoke of reasonable restrictions when it comes to procedure. It said: “While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the court under clause (5). Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted.” (at page 524) 27. It was argued by the learned Additional Solicitor General that a relaxed standard of reasonableness of restriction should apply regard being had to the fact that the medium of speech being the internet differs from other mediums on several grounds. To appreciate the width and scope of his 28 submissions, we are setting out his written submission verbatim: “(i) the reach of print media is restricted to one state or at the most one country while internet has no boundaries and its reach is global; (ii) the recipient of the free speech and expression used in a print media can only be literate persons while internet can be accessed by literate and illiterate both since one click is needed to download an objectionable post or a video; (iii) In case of televisions serials [except live shows] and movies, there is a permitted precensorship’ which ensures right of viewers not to receive any information which is dangerous to or not in conformity with the social interest. While in the case of an internet, no such pre-censorship is possible and each individual is publisher, printer, producer, director and broadcaster of the content without any statutory regulation; (iv) In case of print media or medium of television and films whatever is truly recorded can only be published or broadcasted I televised I viewed. While in case of an internet, morphing of images, change of voices and many other technologically advance methods to create serious potential social disorder can be applied. (v) By the medium of internet, rumors having a serious potential of creating a serious social disorder can be spread to trillions of people without any check which is not possible in case of other mediums. (vi) In case of mediums like print media, television and films, it is broadly not possible to invade privacy of 29 unwilling persons. While in case of an internet, it is very easy to invade upon the privacy of any individual and thereby violating his right under Article 21 of the Constitution of India. (vii) By its very nature, in the mediums like newspaper, magazine, television or a movie, it is not possible to sexually harass someone, outrage the modesty of anyone, use unacceptable filthy language and evoke communal frenzy which would lead to serious social disorder. While in the case of an internet, it is easily possible to do so by a mere click of a button without any geographical limitations and almost in all cases while ensuring anonymity of the offender. (viii) By the very nature of the medium, the width and reach of internet is manifold as against newspaper and films. The said mediums have inbuilt limitations i.e. a person will have to buy / borrow a newspaper and / or will have to go to a theater to watch a movie. For television also one needs at least a room where a television is placed and can only watch those channels which he has subscribed and that too only at a time where it is being telecast. While in case of an internet a person abusing the internet, can commit an offence at any place at the time of his choice and maintaining his anonymity in almost all cases. (ix) In case of other mediums, it is impossible to maintain anonymity as a result of which speech ideal opinions films having serious potential of creating a social disorder never gets generated since its origin is bound to be known. While in case of an internet mostly its abuse takes place under the garb of anonymity which can be unveiled only after thorough investigation. (x) In case of other mediums like newspapers, television or films, the approach is always institutionalized approach governed by industry 30 specific ethical norms of self conduct. Each newspaper / magazine / movie production house / TV Channel will have their own institutionalized policies in house which would generally obviate any possibility of the medium being abused. As against that use of internet is solely based upon individualistic approach of each individual without any check, balance or regulatory ethical norms for exercising freedom of speech and expression under Article 19[ 1] [a]. (xi) In the era limited to print media and cinematograph; or even in case of publication through airwaves, the chances of abuse of freedom of expression was less due to inherent infrastructural and logistical constrains. In the case of said mediums, it was almost impossible for an individual to create and publish an abusive content and make it available to trillions of people. Whereas, in the present internet age the said infrastructural and logistical constrains have disappeared as any individual using even a smart mobile phone or a portable computer device can create and publish abusive material on its own, without seeking help of anyone else and make it available to trillions of people by just one click.” 28. As stated, all the above factors may make a distinction between the print and other media as opposed to the internet and the legislature may well, therefore, provide for separate offences so far as free speech over the internet is concerned. There is, therefore, an intelligible differentia having a rational relation to the object sought to be achieved – that there can be 31 creation of offences which are applied to free speech over the internet alone as opposed to other mediums of communication. Thus, an Article 14 challenge has been repelled by us on this ground later in this judgment. But we do not find anything in the features outlined by the learned Additional Solicitor General to relax the Court’s scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above. 29. In fact, this aspect was considered in Secretary Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161 in para 37, where the following question was posed: “The next question which is required to be answered is whether there is any distinction between the freedom of the print media and that of the electronic media such as radio and television, and if so, whether it necessitates more restrictions on the latter media.” 32 This question was answered in para 78 thus: “There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of 33 circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures. It is further difficult to appreciate such contention on the part of the Government in this country when they have a complete control over the frequencies and the content of the programme to be telecast. They control the sole agency of telecasting. They are also armed with the provisions of Article 19(2) and the powers of pre-censorship under the Cinematograph Act and Rules. The only limitation on the said right is, therefore, the limitation of resources and the need to use them for the benefit of all. When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. That is why the doctrine of fairness has been evolved in the US in the context of the private broadcasters licensed to share the limited frequencies with the central agency like the FCC to regulate the programming. But this phenomenon occurs even in the case of the print media of all the 34 countries. Hence the body like the Press Council of India which is empowered to enforce, however imperfectly, the right to reply. The print media further enjoys as in our country, freedom from pre-censorship unlike the electronic media.” Public Order 30. In Article 19(2) (as it originally stood) this sub-head was conspicuously absent. Because of its absence, challenges made to an order made under Section 7 of the Punjab Maintenance of Public Order Act and to an order made under Section 9 (1)(a) of the Madras Maintenance of Public Order Act were allowed in two early judgments by this Court. Thus in Romesh Thappar v. State of Madras, [1950] S.C.R. 594, this Court held that an order made under Section 9(1)(a) of the Madras Maintenance of Public Order Act (XXIII of 1949) was unconstitutional and void in that it could not be justified as a measure connected with security of the State. While dealing with the expression “public order”, this Court held that “public order” is an expression which signifies a state of tranquility which prevails amongst the members of a political society as a result of the internal regulations enforced by the Government which they have established. 35 31. Similarly, in Brij Bhushan & Anr. v. State of Delhi, [1950] S.C.R. 605, an order made under Section 7 of the East Punjab Public Safety Act, 1949, was held to be unconstitutional and void for the self-same reason. 32. As an aftermath of these judgments, the Constitution First Amendment added the words “public order” to Article 19(2). 33. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821, this Court held that public order is synonymous with public safety and tranquility; it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State. This definition was further refined in Dr. Ram Manohar Lohia v. State of Bihar & Ors., [1966] 1 S.C.R. 709, where this Court held: “It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those 36 affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.” (at page 746) 34. In Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288, Ram Manohar Lohia’s case was referred to with approval in the following terms: “In Dr. Ram Manohar Lohia’s case this Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished, from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other 37 community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large Sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The 38 latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia’s case examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.” (at pages 290 and 291). 35. This decision lays down the test that has to be formulated in all these cases. We have to ask ourselves the question: does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquility of society undisturbed? Going by this test, it is clear that Section 66A is intended to punish any person who uses the 39 internet to disseminate any information that falls within the sub-clauses of Section 66A. It will be immediately noticed that the recipient of the written word that is sent by the person who is accused of the offence is not of any importance so far as this Section is concerned. (Save and except where under sub-clause (c) the addressee or recipient is deceived or misled about the origin of a particular message.) It is clear, therefore, that the information that is disseminated may be to one individual or several individuals. The Section makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require that such message should have a clear tendency to disrupt public order. Such message need not have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent – there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order 40 whatsoever. The example of a guest at a hotel `annoying’ girls is telling – this Court has held that mere `annoyance’ need not cause disturbance of public order. Under Section 66A, the offence is complete by sending a message for the purpose of causing annoyance, either `persistently’ or otherwise without in any manner impacting public order. Clear and present danger – tendency to affect. 36. It will be remembered that Justice Holmes in Schenck v. United States, 63 L. Ed. 470 enunciated the clear and present danger test as follows: “…The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” (At page 473, 474) 37. This was further refined in Abrams v. Unites States 250 U.S. 616 (1919), this time in a Holmesian dissent, to be clear 41 and imminent danger. However, in most of the subsequent judgments of the U.S. Supreme Court, the test has been understood to mean to be “clear and present danger”. The test of “clear and present danger” has been used by the U.S. Supreme Court in many varying situations and has been adjusted according to varying fact situations. It appears to have been repeatedly applied, see- Terminiello v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969) at 434-435 & 436, Virginia v. Black 155 L. Ed. 2d 535 (2003) at page 551, 552 and 5534 . 4 In its present form the clear and present danger test has been reformulated to say that: “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Interestingly, the US Courts have gone on to make a further refinement. The State may ban what is called a “true threat”. “’True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” “The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667 42 38. We have echoes of it in our law as well S. Rangarajan v. P. Jagjivan & Ors., (1989) 2 SCC 574 at paragraph 45: “45. The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”. 39. This Court has used the expression “tendency” to a particular act. Thus, in State of Bihar v. Shailabala Devi, [1952] S.C.R. 654, an early decision of this Court said that an article, in order to be banned must have a tendency to excite persons to acts of violence (at page 662-663). The test laid down in the said decision was that the article should be considered as a whole in a fair free liberal spirit and then it must 43 be decided what effect it would have on the mind of a reasonable reader. (at pages 664-665) 40. In Ramji Lal Modi v. The State of U.P., [1957] S.C.R. 860 at page 867, this court upheld Section 295A of the Indian Penal Code only because it was read down to mean that aggravated forms of insults to religion must have a tendency to disrupt public order. Similarly, in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) S.C.R. 769, Section 124A of the Indian Penal Code was upheld by construing it narrowly and stating that the offence would only be complete if the words complained of have a tendency of creating public disorder by violence. It was added that merely creating disaffection or creating feelings of enmity in certain people was not good enough or else it would violate the fundamental right of free speech under Article 19(1)(a). Again, in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & Ors., 1996 (1) SCC 130, Section 123 (3A) of the Representation of People Act was upheld only if the enmity or hatred that was spoken 44 about in the Section would tend to create immediate public disorder and not otherwise. 41. Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates. Defamation 42. Defamation is defined in Section 499 of the Penal Code as follows: “499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. 45 Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” 43. It will be noticed that for something to be defamatory, injury to reputation is a basic ingredient. Section 66A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. It is clear therefore that the Section is not aimed at defamatory statements at all. Incitement to an offence: 46 44. Equally, Section 66A has no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not be information which “incites” anybody at all. Written words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of view”. Further, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with “incitement to an offence”. As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional. Decency or Morality 47 45. This Court in Ranjit Udeshi v. State of Maharashtra [1965] 1 S.C.R. 65 took a rather restrictive view of what would pass muster as not being obscene. The Court followed the test laid down in the old English judgment in Hicklin’s case which was whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. Great strides have been made since this decision in the UK, United States as well as in our country. Thus, in Director General, Directorate General of Doordarshan v. Anand Patwardhan, 2006 (8) SCC 433, this Court noticed the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary artistic, political, educational or scientific value (see Para 31). 46. In a recent judgment of this Court, Aveek Sarkar v. State of West Bengal, 2014 (4) SCC 257, this Court referred to 48 English, U.S. and Canadian judgments and moved away from the Hicklin test and applied the contemporary community standards test. 47. What has been said with regard to public order and incitement to an offence equally applies here. Section 66A cannot possibly be said to create an offence which falls within the expression ‘decency’ or ‘morality’ in that what may be grossly offensive or annoying under the Section need not be obscene at all – in fact the word ‘obscene’ is conspicuous by its absence in Section 66A. 48. However, the learned Additional Solicitor General asked us to read into Section 66A each of the subject matters contained in Article 19(2) in order to save the constitutionality of the provision. We are afraid that such an exercise is not possible for the simple reason that when the legislature intended to do so, it provided for some of the subject matters contained in Article 19(2) in Section 69A. We would be doing complete violence to the language of Section 66A if we were to 49 read into it something that was never intended to be read into it. Further, he argued that the statute should be made workable, and the following should be read into Section 66A: “(i) Information which would appear highly abusive, insulting, pejorative, offensive by reasonable person in general, judged by the standards of an open and just multi-caste, multi-religious, multi racial society; – Director of Public Prosecutions v. Collins – (2006) 1 WLR 2223 @ para 9 and 21 – Connolly v. Director of Public Prosecutions reported in [2008] 1 W.L.R. 276/2007 [1] All ER 1012 – House of Lords Select Committee 1st Report of Session 2014-2015 on Communications titled as “Social Media And Criminal Offences” @ pg 260 of compilation of judgments Vol I Part B (ii) Information which is directed to incite or can produce imminent lawless action Brandenburg v. Ohio 395 U.S. 444 (1969); (iii) Information which may constitute credible threats of violence to the person or damage; (iv) Information which stirs the public to anger, invites violent disputes brings about condition of violent unrest and disturbances; Terminiello v. Chicago 337 US 1 (1949) (v) Information which advocates or teaches the duty, necessity or proprietary of violence as a means of accomplishing political, social or religious reform and/or justifies commissioning of violent acts with an intent to exemplify glorify such violent means to 50 accomplish political, social, economical or religious reforms [Whitney vs. California 274 US 357]; (vi) Information which contains fighting or abusive material; Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (vii) Information which promotes hate speech i.e. (a)Information which propagates hatred towards individual or a groups, on the basis of race, religion, religion, casteism, ethnicity, (b)Information which is intended to show the supremacy of one particular religion/race/caste by making disparaging, abusive and/or highly inflammatory remarks against religion/race/caste. (c)Information depicting religious deities, holy persons, holy symbols, holy books which are created to insult or to show contempt or lack of reverence for such religious deities, holy persons, holy symbols, holy books or towards something which is considered sacred or inviolable. (viii) Satirical or iconoclastic cartoon and caricature which fails the test laid down in Hustler Magazine, Inc. v. Falwell 485 U.S. 46 (1988) (ix) Information which glorifies terrorism and use of drugs; (x) Information which infringes right of privacy of the others and includes acts of cyber bullying, harassment or stalking. 51 (xi) Information which is obscene and has the tendency to arouse feeling or revealing an overt sexual desire and should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it. Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257. (xii) Context and background test of obscenity. Information which is posted in such a context or background which has a consequential effect of outraging the modesty of the pictured individual. Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257.” 49. What the learned Additional Solicitor General is asking us to do is not to read down Section 66A – he is asking for a wholesale substitution of the provision which is obviously not possible. Vagueness 50. Counsel for the petitioners argued that the language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall. 52 51. We were given Collin’s dictionary, which defined most of the terms used in Section 66A, as follows: “Offensive:- 1. Unpleasant or disgusting, as to the senses 2. Causing anger or annoyance; insulting 3. For the purpose of attack rather than defence. Menace:- 1. To threaten with violence, danger, etc. 2. A threat of the act of threatening 3. Something menacing; a source of danger 4. A nuisance Annoy:- 1. To irritate or displease 2. To harass with repeated attacks Annoyance 1. The feeling of being annoyed 2. The act of annoying. Inconvenience 1. The state of quality of being inconvenient 2. Something inconvenient; a hindrance, trouble, or difficulty Danger:- 1. The state of being vulnerable to injury, loss, or evil risk 2. A person or a thing that may cause injury pain etc. Obstruct:- 1. To block (a road a passageway, etc.) with an obstacle 2. To make (progress or activity) difficult. 3. To impede or block a clear view of. 53 Obstruction:- a person or a thing that obstructs. Insult:- 1. To treat, mention, or speak to rudely; offend; affront 2. To assault; attack 3. An offensive or contemptuous remark or action; affront; slight 4. A person or thing producing the effect of an affront = some television is an insult to intelligence 5. An injury or trauma.” 52. The U.S. Supreme Court has repeatedly held in a series of judgments that where no reasonable standards are laid down to define guilt in a Section which creates an offence, and where no clear guidance is given to either law abiding citizens or to authorities and courts, a Section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable. Thus, in Musser v. Utah, 92 L. Ed. 562, a Utah statute which outlawed conspiracy to commit acts injurious to public morals was struck down. 53. In Winters v. People of State of New York, 92 L. Ed. 840, a New York Penal Law read as follows:- “1141. Obscene prints and articles 54 1. A person……who, 2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his possession with intent to sell, lend, give away, distribute or show, or otherwise offers for sale, loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime; …………………………………………….. ‘Is guilty of a misdemeanor, …..’” (at page 846) The court in striking down the said statute held: “The impossibility of defining the precise line between permissible uncertainty in statutes caused by describing crimes by words well understood through long use in the criminal law – obscene, lewd, lascivious, filthy, indecent or disgusting—and the unconstitutional vagueness that leaves a person uncertain as to the kind of prohibited conduct— massing stories to incite crime—has resulted in three arguments of this case in this Court. The legislative bodies in draftsmanship obviously have the same difficulty as do the judicial in interpretation. Nevertheless despite the difficulties, courts must do their best to determine whether or not the vagueness is of such a character ‘that men of common intelligence must necessarily guess at its meaning.’ Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. The entire text of the statute or the subjects dealt with may furnish an adequate standard. The present case as to a vague statute abridging free speech 55 involves the circulation of only vulgar magazines. The next may call for decision as to free expression of political views in the light of a statute intended to punish subversive activities. The subsection of the New York Penal Law, as now interpreted by the Court of Appeals prohibits distribution of a magazine principally made up of criminal news or stories of deeds of bloodshed, or lust, so massed as to become vehicles for inciting violent and depraved crimes against the person. But even considering the gloss put upon the literal meaning by the Court of Appeals’ restriction of the statute to collections of stories ‘so massed as to become vehicles for inciting violent and depraved crimes against the person * * * not necessarily * * * sexual passion,’ we find the specification of publications, prohibited from distribution, too uncertain and indefinite to justify the conviction of this petitioner. Even though all detective tales and treatises on criminology are not forbidden, and though publications made up of criminal deeds not characterized by bloodshed or lust are omitted from the interpretation of the Court of Appeals, we think fair use of collections of pictures and stories would be interdicted because of the utter impossibility of the actor or the trier to know where this new standard of guilt would draw the line between the allowable and the forbidden publications. No intent or purpose is required—no indecency or obscenity in any sense heretofore known to the law. ‘So massed as to incite to crime’ can become meaningful only by concrete instances. This one example is not enough. The clause proposes to punish the printing and circulation of publications that courts or juries may think influence generally persons to commit crime of violence against the person. No conspiracy to commit a crime is required. See Musser v. State of Utah, 68 S.Ct. 397, this Term. It is not an effective notice of new crime. 56 The clause has no technical or common law meaning. Nor can light as to the meaning be gained from the section as a whole or the Article of the Penal Law under which it appears. As said in the Cohen Grocery Co. case, supra, 255 U.S. at page 89, 41 S.Ct. at page 300, 65 L.Ed. 516, 14 A.L.R. 1045: ‘It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.’ The statute as construed by the Court of Appeals does not limit punishment to the indecent and obscene, as formerly understood. When stories of deeds of bloodshed, such as many in the accused magazines, are massed so as to incite to violent crimes, the statute is violated. it does not seem to us that an honest distributor of publications could know when he might be held to have ignored such a prohibition. Collections of tales of war horrors, otherwise unexceptionable, might well be found to be ‘massed’ so as to become ‘vehicles for inciting violent and depraved crimes.’ Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained. Herndon v. Lowry, 301 U.S. 242, 259, 57 S.Ct. 732, 739, 81 L.Ed. 1066.” (at page 851-852) 54. In Burstyn v. Wilson, 96 L. Ed. 1098, sacrilegious writings and utterances were outlawed. Here again, the U.S. Supreme Court stepped in to strike down the offending Section stating: 57 “It is not a sufficient answer to say that ‘sacrilegious’ is definite, because all subjects that in any way might be interpreted as offending the religious beliefs of any one of the 300 sects of the United States are banned in New York. To allow such vague, undefinable powers of censorship to be exercised is bound to have stultifying consequences on the creative process of literature and art—for the films are derived largely from literature. History does not encourage reliance on the wisdom and moderation of the censor as a safeguard in the exercise of such drastic power over the minds of men. We not only do not know but cannot know what is condemnable by ‘sacrilegious.’ And if we cannot tell, how are those to be governed by the statute to tell? (at page 1121) 55. In City of Chicago v. Morales et al, 527 U.S. 41 (1999), a Chicago Gang Congregation Ordinance prohibited criminal street gang members from loitering with one another or with other persons in any public place for no apparent purpose. The Court referred to an earlier judgment in United States v. Reese 92 U.S. 214 (1875) at 221 in which it was stated that the Constitution does not permit a legislature to set a net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightfully detained and who should be set at liberty. It was held that the broad sweep of the Ordinance violated the requirement that a legislature needs to 58 meet: to establish minimum guidelines to govern law enforcement. As the impugned Ordinance did not have any such guidelines, a substantial amount of innocent conduct would also be brought within its net, leading to its unconstitutionality. 56. It was further held that a penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness. Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place. 57. Similarly, in Grayned v. City of Rockford, 33 L.Ed. 2d. 222, the State of Illinois provided in an anti noise ordinance as follows: “'(N)o person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order 59 of such school session or class thereof. . . .’ Code of Ordinances, c. 28, § 19.2(a).” The law on the subject of vagueness was clearly stated thus: “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut(s) upon sensitive areas of basic First Amendment freedoms, it ‘operates to inhibit the exercise of (those) freedoms.’ Uncertain meanings inevitably lead citizens to “steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.’”(at page 227-228) 58. The anti noise ordinance was upheld on facts in that case because it fixed the time at which noise disrupts school activity 60 – while the school is in session – and at a fixed place – ‘adjacent’ to the school. 59. Secondly, there had to be demonstrated a causality between disturbance that occurs and the noise or diversion. Thirdly, acts have to be willfully done. It is important to notice that the Supreme Court specifically held that “undesirables” or their “annoying conduct” may not be punished. It is only on these limited grounds that the said Ordinance was considered not to be impermissibly vague. 60. In Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et al., 521 U.S. 844 (1997), two provisions of the Communications Decency Act of 1996 which sought to protect minors from harmful material on the internet were adjudged unconstitutional. This judgment is a little important for two basic reasons – that it deals with a penal offence created for persons who use the internet as also for the reason that the statute which was adjudged unconstitutional uses the expression “patently offensive” which comes extremely 61 close to the expression “grossly offensive” used by the impugned Section 66A. Section 223(d), which was adjudged unconstitutional, is set out hereinbelow:- “223 (d) Whoever— “(1) in interstate or foreign communications knowingly— (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under Title 18, or imprisoned not more than two years, or both.” (at page 860) Interestingly, the District Court Judge writing of the internet said: 62 “[i]t is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country – and indeed the world – as yet seen. The plaintiffs in these actions correctly describe the ‘democratizing’ effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletins boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen.” 929 F. Supp. At 881. (at page 425) 61. The Supreme Court held that the impugned statute lacked the precision that the first amendment required when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the impugned Act effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. 63 62. Such a burden on adult speech is unacceptable if less restrictive alternatives would be as effective in achieving the legitimate purpose that the statute was enacted to serve. It was held that the general undefined term “patently offensive” covers large amounts of non-pornographic material with serious educational or other value and was both vague and over broad. It was, thus, held that the impugned statute was not narrowly tailored and would fall foul of the first amendment. 63. In Federal Communications Commission v. Fox Television Stations, 132 S.Ct. 2307, it was held: “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972) (“Living under a rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be informed as to what the State commands or forbids’” (quoting Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (alteration in original))). This requirement of clarity in regulation is 64 essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U. S. 285, 304 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Ibid. As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved. See id., at 306. Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned v. City of Rockford, 408 U. S. 104, 108–109 (1972). When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”(at page 2317) 64. Coming to this Court’s judgments, in State of Madhya Pradesh v. Baldeo Prasad, [1961] 1 S.C.R. 970 an inclusive definition of the word “goonda” was held to be vague and the offence created by Section 4A of the Goondas Act was, 65 therefore, violative of Article 19(1)(d) and (e) of the Constitution. It was stated: “Incidentally it would also be relevant to point out that the definition of the word “goonda” affords no assistance in deciding which citizen can be put under that category. It is an inclusive definition and it does not indicate which tests have to be applied in deciding whether a person falls in the first part of the definition. Recourse to the dictionary meaning of the word would hardly be of any assistance in this matter. After all it must be borne in mind that the Act authorises the District Magistrate to deprive a citizen of his fundamental right under Art. 19(1)(d) and (e), and though the object of the Act and its purpose would undoubtedly attract the provisions of Art. 19(5) care must always be taken in passing such acts that they provide sufficient safeguards against casual, capricious or even malicious exercise of the powers conferred by them. It is well known that the relevant provisions of the Act are initially put in motion against a person at a lower level than the District magistrate, and so it is always necessary that sufficient safeguards should be provided by the Act to protect the fundamental rights of innocent citizens and to save them from unnecessary harassment. That is why we think the definition of the word “goonda” should have given necessary assistance to the District Magistrate in deciding whether a particular citizen falls under the category of goonda or not; that is another infirmity in the Act. As we have already pointed out s. 4-A suffers from the same infirmities as s. 4. Having regard to the two infirmities in Sections 4, 4-A respectively we do not think it would be possible to accede to the argument of the Learned Advocate-General that the operative portion of the Act can fall under Art. 19(5) of the Constitution. The 66 person against whom action can be taken under the Act is not entitled to know the source of the information received by the District Magistrate; he is only told about his prejudicial activities on which the satisfaction of the District Magistrate is based that action should be taken against him under s.4 or s. 4-A. In such a case it is absolutely essential that the Act must clearly indicate by a proper definition or otherwise when and under what circumstances a person can be called a goonda, and it must impose an obligation on the District Magistrate to apply his mind to the question as to whether the person against whom complaints are received is such a goonda or not. It has been urged before us that such an obligation is implicit in Sections 4 and 4-A. We are, however, not impressed by this argument. Where a statute empowers the specified authorities to take preventive action against the citizens it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Art. 19(5). The result of this infirmity is that it has left to the unguided and unfettered discretion of the authority concerned to treat any citizen as a goonda. In other words, the restrictions which it allows to be imposed on the exercise of the fundamental right of a citizen guaranteed by Art. 19(1)(d) and (e) must in the circumstances be held to be unreasonable. That is the view taken by the High court and we see no reason to differ from it.” (at pages 979, 980) 65. At one time this Court seemed to suggest that the doctrine of vagueness was no part of the Constitutional Law of 67 India. That was dispelled in no uncertain terms in K.A. Abbas v. The Union of India & Another, [1971] 2 S.C.R. 446: “This brings us to the manner of the exercise of control and restriction by the directions. Here the argument is that most of the regulations are vague and further that they leave no scope for the exercise of creative genius in the field of art. This poses the first question before us whether the ‘void for vagueness’ doctrine is applicable. Reliance in this connection is placed on Municipal Committee Amritsar and Anr. v. The State of Rajasthan . In that case a Division Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground that it violates the due process clause or that it is vague……” (at page 469) “These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the principles evolved by the Supreme Court of the United States of America in the application of the Fourteenth Amendment were eschewed in our Constitution and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow the first clause of the nineteenth article, 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. A very pertinent example is to be found in State of Madhya Pradesh and Anr. v. Baldeo Prasad, 1961 (1) SCR 970 where the Central Provinces and Berar Goondas Act 1946 was declared void for uncertainty. The condition for the application of Sections 4 and 4A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no tests for deciding which person fell within the definition. The 68 provisions were therefore held to be uncertain and vague. The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases.” (at pages 470, 471) 66. Similarly, in Harakchand Ratanchand Banthia & Ors. v. Union of India & Ors., 1969 (2) SCC 166, Section 27 of the Gold Control Act was struck down on the ground that the conditions imposed by it for the grant of renewal of licences are uncertain, vague and unintelligible. The Court held: “21. We now come to Section 27 of the Act which relates to licensing of dealers. It was stated on behalf of the petitioners that the conditions imposed by sub-section (6) of Section 27 for the grant or 69 renewal of licences are uncertain, vague and unintelligible and consequently wide and unfettered power was conferred upon the statutory authorities in the matter of grant or renewal of licence. In our opinion this contention is well founded and must be accepted as correct. Section 27(6)(a) states that in the matter of issue or renewal of licences the Administrator shall have regard to “the number of dealers existing in the region in which the applicant intends to carry on business as a dealer”. But the word “region” is nowhere defined in the Act. Similarly Section 27(6)(b) requires the Administrator to have regard to “the anticipated demand, as estimated by him, for ornaments in that region.” The expression “anticipated demand” is a vague expression which is not capable of objective assessment and is bound to lead to a great deal of uncertainty. Similarly the expression “suitability of the applicant” in Section 27(6)(e) and “public interest” in Section 27(6)(g) do not provide any objective standard or norm or guidance. For these reasons it must be held that clauses (a),(d),(e) and (g) of Section 27(6) impose unreasonable restrictions on the fundamental right of the petitioner to carry on business and are constitutionally invalid. It was also contended that there was no reason why the conditions for renewal of licence should be as rigorous as the conditions for initial grant of licence. The requirement of strict conditions for the renewal of licence renders the entire future of the business of the dealer uncertain and subjects it to the caprice and arbitrary will of the administrative authorities. There is justification for this argument and the requirement of Section 26 of the Act imposing the same conditions for the renewal of the licence as for the initial grant appears to be unreasonable. In our opinion clauses (a), (b), (e) and (g) are inextricably bound up with the other clauses of Section 27(6) and form part of a single scheme. The result is that clauses (a), (b), (c), (e) and (g) are not severable 70 and the entire Section 27(6) of the Act must be held invalid. Section 27(2)(d) of the Act states that a valid licence issued by the Administrator “may contain such conditions, limitations and restrictions as the Administrator may think fit to impose and different conditions, limitations and restrictions may be imposed for different classes of dealers”. On the face of it, this sub-section confers such wide and vague power upon the Administrator that it is difficult to limit its scope. In our opinion Section 27(2)(d) of the Act must be struck down as an unreasonable restriction on the fundamental right of the petitioners to carry on business. It appears, however, to us that if Section 27(2)(d) and Section 27(6) of the Act are invalid the licensing scheme contemplated by the rest of Section 27 of the Act cannot be worked in practice. It is, therefore, necessary for Parliament to enact fresh legislation imposing appropriate conditions and restrictions for the grant and renewal of licences to dealers. In the alternative the Central Government may make appropriate rules for the same purpose in exercise of its rule-making power under Section 114 of the Act.” 67. In A.K. Roy & Ors. v. Union of India & Ors., [1982] 2 S.C.R. 272, a part of Section 3 of the National Security Ordinance was read down on the ground that “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” is an expression so vague that it is capable of wanton abuse. The Court held: “What we have said above in regard to the expressions ‘defence of India’, ‘security of India’, 71 ‘security of the State’ and ‘relations of India with foreign powers’ cannot apply to the expression “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” which occurs in Section 3(2) of the Act. Which supplies and services are essential to the community can easily be defined by the legislature and indeed, legislations which regulate the prices and possession of essential commodities either enumerate those commodities or confer upon the appropriate Government the power to do so. In the absence of a definition of ‘supplies and services essential to the community’, the detaining authority will be free to extend the application of this clause of sub-section (2) to any commodities or services the maintenance of supply of which, according to him, is essential to the community. But that is not all. The Explanation to sub-section (2) gives to the particular phrase in that sub-section a meaning which is not only uncertain but which, at any given point of time, will be difficult to ascertain or fasten upon. According to the Explanation, no order of detention can be made under the National Security Act on any ground on which an order of detention may be made under the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. The reason for this, which is stated in the Explanation itself, is that for the purposes of sub-section (2), “acting in any manner prejudicial to the maintenance of supplies essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of Section 3 of the Act of 1980. Clauses (a) and (b) of the Explanation to Section 3(1) of the Act of 1980 exhaust almost the entire range of essential commodities. Clause (a) relates to committing or instigating any person to commit any offence 72 punishable under the Essential Commodities Act, 10 of 1955, or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community. Clause (b) of the Explanation to Section 3(1) of the Act of 1980 relates to dealing in any commodity which is an essential commodity as defined in the Essential Commodities Act, 1955, or with respect to which provisions have been made in any such other law as is referred to in clause (a). We find it quite difficult to understand as to which are the remaining commodities outside the scope of the Act of 1980, in respect of which it can be said that the maintenance of their supplies is essential to the community. The particular clause in sub-section (2) of Section 3 of the National Security Act is, therefore, capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity is essential to the community. We consider the particular clause not only vague and uncertain but, in the context of the Explanation, capable of being extended cavalierly to supplies, the maintenance of which is not essential to the community. To allow the personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21.” (at page 325-326) 68. Similarly, in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at para 130-131, it was held: “130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its 73 prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked. 131. Let us examine clause (i) of Section 2(1)(a). This section is shown to be blissfully and impermissibly vague and imprecise. As rightly pointed out by the learned counsel, even an innocent person who ingenuously and undefiledly communicates or associates without any knowledge or having no reason to believe or suspect that the person or class of persons with whom he has communicated or associated is engaged in assisting in any manner terrorists or disruptionists, can be arrested and prosecuted by abusing or misusing or misapplying this definition. In ultimate consummation of the proceedings, perhaps that guiltless and innoxious innocent person may also be convicted.” 69. Judged by the standards laid down in the aforesaid judgments, it is quite clear that the expressions used in 66A are completely open-ended and undefined. Section 66 in stark contrast to Section 66A states: 74 “66. Computer related offences.—If any person, dishonestly or fraudulently, does any act referred to in Section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. Explanation.—For the purposes of this section,— (a) the word “dishonestly” shall have the meaning assigned to it in Section 24 of the Indian Penal Code (45 of 1860); (b) the word “fraudulently” shall have the meaning assigned to it in Section 25 of the Indian Penal Code (45 of 1860).” 70. It will be clear that in all computer related offences that are spoken of by Section 66, mens rea is an ingredient and the expression “dishonestly” and “fraudulently” are defined with some degree of specificity, unlike the expressions used in Section 66A. 71. The provisions contained in Sections 66B up to Section 67B also provide for various punishments for offences that are clearly made out. For example, under Section 66B, whoever dishonestly receives or retains any stolen computer resource or communication device is punished with imprisonment. Under 75 Section 66C, whoever fraudulently or dishonestly makes use of any identification feature of another person is liable to punishment with imprisonment. Under Section 66D, whoever cheats by personating becomes liable to punishment with imprisonment. Section 66F again is a narrowly drawn section which inflicts punishment which may extend to imprisonment for life for persons who threaten the unity, integrity, security or sovereignty of India. Sections 67 to 67B deal with punishment for offences for publishing or transmitting obscene material including depicting children in sexually explicit acts in electronic form. 72. In the Indian Penal Code, a number of the expressions that occur in Section 66A occur in Section 268. “268. Public nuisance.—A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. 76 A common nuisance is not excused on the ground that it causes some convenience or advantage.” 73. It is important to notice the distinction between the Sections 268 and 66A. Whereas, in Section 268 the various expressions used are ingredients for the offence of a public nuisance, these ingredients now become offences in themselves when it comes to Section 66A. Further, under Section 268, the person should be guilty of an act or omission which is illegal in nature – legal acts are not within its net. A further ingredient is that injury, danger or annoyance must be to the public in general. Injury, danger or annoyance are not offences by themselves howsoever made and to whomsoever made. The expression “annoyance” appears also in Sections 294 and 510 of the IPC: “294. Obscene acts and songs.—Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, 77 shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. 510. Misconduct in public by a drunken person. —Whoever, in a state of intoxication, appears in any public place, or in any place which it is a trespass in him to enter, and there conducts himself in such a manner as to cause annoyance to any person, shall be punished with simple imprisonment for a term which may extend to twenty-four hours, or with fine which may extend to ten rupees, or with both.” 74. If one looks at Section 294, the annoyance that is spoken of is clearly defined – that is, it has to be caused by obscene utterances or acts. Equally, under Section 510, the annoyance that is caused to a person must only be by another person who is in a state of intoxication and who annoys such person only in a public place or in a place for which it is a trespass for him to enter. Such narrowly and closely defined contours of offences made out under the Penal Code are conspicuous by their absence in Section 66A which in stark contrast uses completely open ended, undefined and vague language. 75. Incidentally, none of the expressions used in Section 66A are defined. Even “criminal intimidation” is not defined – and 78 the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act. 76. Quite apart from this, as has been pointed out above, every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression “persistently” is completely imprecise – suppose a message is sent thrice, can it be said that it was sent “persistently”? Does a message have to be sent (say) at least eight times, before it can be said that such message is “persistently” sent? There is no demarcating line conveyed by any of these expressions – and that is what renders the Section unconstitutionally vague. 77. However, the learned Additional Solicitor General argued before us that expressions that are used in Section 66A may be incapable of any precise definition but for that reason they are not constitutionally vulnerable. He cited a large number of 79 judgments in support of this submission. None of the cited judgments dealt with a Section creating an offence which is saved despite its being vague and in capable of any precise definition. In fact, most of the judgments cited before us did not deal with criminal law at all. The few that did are dealt with hereinbelow. For instance, Madan Singh v. State of Bihar, (2004) 4 SCC 622 was cited before us. The passage cited from the aforesaid judgment is contained in para 19 of the judgment. The cited passage is not in the context of an argument that the word “terrorism” not being separately defined would, therefore, be struck down on the ground of vagueness. The cited passage was only in the context of upholding the conviction of the accused in that case. Similarly, in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors., (2010) 5 SCC 246, the expression “insurgency” was said to be undefined and would defy a precise definition, yet it could be understood to mean break down of peace and tranquility as also a grave disturbance of public order so as to endanger the security of the State and its sovereignty. This again was said in the context of a challenge on the ground of legislative competence. The 80 provisions of the Maharashtra Control of Organised Crime Act were challenged on the ground that they were outside the expression “public order” contained in Entry 1 of List I of the 7th Schedule of the Constitution of India. This contention was repelled by saying that the expression “public order” was wide enough to encompass cases of “insurgency”. This case again had nothing to do with a challenge raised on the ground of vagueness. 78. Similarly, in State of M.P. v. Kedia Leather & Liquor Limited, (2003) 7 SCC 389, paragraph 8 was cited to show that the expression “nuisance” appearing in Section 133 of the Code of Criminal Procedure was also not capable of precise definition. This again was said in the context of an argument that Section 133 of the Code of Criminal Procedure was impliedly repealed by the Water (Prevention and Control of Pollution) Act, 1974. This contention was repelled by saying that the areas of operation of the two provisions were completely different and they existed side by side being mutually exclusive. This case again did not contain any 81 argument that the provision contained in Section 133 was vague and, therefore, unconstitutional. Similarly, in State of Karnataka v. Appa Balu Ingale, 1995 Supp. (4) SCC 469, the word “untouchability” was said not to be capable of precise definition. Here again, there was no constitutional challenge on the ground of vagueness. 79. In fact, two English judgments cited by the learned Additional Solicitor General would demonstrate how vague the words used in Section 66A are. In Director of Public Prosecutions v. Collins, (2006) 1 WLR 2223, the very expression “grossly offensive” is contained in Section 127(1)(1) of the U.K. Communications Act, 2003. A 61 year old man made a number of telephone calls over two years to the office of a Member of Parliament. In these telephone calls and recorded messages Mr. Collins who held strong views on immigration made a reference to “Wogs”, “Pakis”, “Black bastards” and “Niggers”. Mr. Collins was charged with sending messages which were grossly offensive. The Leicestershire Justices dismissed the case against Mr. Collins on the ground that the telephone calls were offensive but not grossly 82 offensive. A reasonable person would not so find the calls to be grossly offensive. The Queen’s Bench agreed and dismissed the appeal filed by the Director of Public Prosecutions. The House of Lords reversed the Queen’s Bench stating: “9. The parties agreed with the rulings of the Divisional Court that it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. I would agree also. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour (“Old Contemptibles”). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates. 10. In contrast with section 127(2)(a) and its predecessor subsections, which require proof of an unlawful purpose and a degree of knowledge, section 127(1)(a) provides no explicit guidance on the state of mind which must be proved against a defendant to establish an offence against the subsection.” 83 80. Similarly in Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, the Queen’s Bench was faced with the following facts: “Following an alert on the Internet social network, Twitter, the defendant became aware that, due to adverse weather conditions, an airport from which he was due to travel nine days later was closed. He responded by posting several “tweets” on Twitter in his own name, including the following: “Crap1 Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high1” None of the defendant’s “followers” who read the posting was alarmed by it at the time. Some five days after its posting the defendant’s tweet was read by the duty manager responsible for security at the airport on a general Internet search for tweets relating to the airport. Though not believed to be a credible threat the matter was reported to the police. In interview the defendant asserted that the tweet was a joke and not intended to be menacing. The defendant was charged with sending by a public electronic communications network a message of a menacing character contrary to section 127(1)(a) of the Communications Act 2003. He was convicted in a magistrates’ court and, on appeal, the Crown Court upheld the conviction, being satisfied that the message was “menacing per se” and that the defendant was, at the very least, aware that his message was of a menacing character.” 81. The Crown Court was satisfied that the message in question was “menacing” stating that an ordinary person seeing 84 the tweet would be alarmed and, therefore, such message would be “menacing”. The Queen’s Bench Division reversed the Crown Court stating: “31. Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent. The Crown Court was understandably concerned that this message was sent at a time when, as we all know, there is public concern about acts of terrorism and the continuing threat to the security of the country from possible further terrorist attacks. That is plainly relevant to context, but the offence is not directed to the inconvenience which may be caused by the message. In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat. It was posted on “Twitter” for widespread reading, a conversation piece for the defendant’s followers, drawing attention to himself and his predicament. Much more significantly, although it purports to address “you”, meaning those responsible for the airport, it was not sent to anyone at the airport or anyone responsible for airport security, or indeed any form of public security. The grievance addressed by the message is that the airport is closed when the writer wants it to be open. The language and punctuation are inconsistent with the writer intending it to be or it to be taken as a serious warning. Moreover, as Mr. Armson noted, it is unusual for a threat of a terrorist nature to invite the person making it to be readily identified, as this message did. Finally, although we are accustomed to very brief messages by terrorists to indicate that a bomb or explosive device has 85 been put in place and will detonate shortly, it is difficult to imagine a serious threat in which warning of it is given to a large number of tweet “followers” in ample time for the threat to be reported and extinguished.” 82. These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”. In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A. This being the case, having regard also to the two 86 English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is unconstitutionally vague. Ultimately, applying the tests referred to in Chintaman Rao and V.G. Row’s case, referred to earlier in the judgment, it is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right. Chilling Effect And Overbreadth 83. Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing disseminated over the internet information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few examples will suffice. A 87 certain section of a particular community may be grossly offended or annoyed by communications over the internet by “liberal views” – such as the emancipation of women or the abolition of the caste system or whether certain members of a non proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66A. In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total. 84. Incidentally, some of our judgments have recognized this chilling effect of free speech. In R. Rajagopal v. State of T.N., (1994) 6 SCC 632, this Court held: 88 “19. The principle of Sullivan [376 US 254 : 11 L Ed 2d 686 (1964)] was carried forward — and this is relevant to the second question arising in this case — in Derbyshire County Council v. Times Newspapers Ltd. [(1993) 2 WLR 449 : (1993) 1 All ER 1011, HL] , a decision rendered by the House of Lords. The plaintiff, a local authority brought an action for damages for libel against the defendants in respect of two articles published in Sunday Times questioning the propriety of investments made for its superannuation fund. The articles were headed “Revealed: Socialist tycoon deals with Labour Chief” and “Bizarre deals of a council leader and the media tycoon”. A preliminary issue was raised whether the plaintiff has a cause of action against the defendant. The trial Judge held that such an action was maintainable but on appeal the Court of Appeal held to the contrary. When the matter reached the House of Lords, it affirmed the decision of the Court of Appeal but on a different ground. Lord Keith delivered the judgment agreed to by all other learned Law Lords. In his opinion, Lord Keith recalled that in Attorney General v. Guardian Newspapers Ltd. (No. 2)[(1990) 1 AC 109 : (1988) 3 All ER 545 : (1988) 3 WLR 776, HL] popularly known as “Spycatcher case”, the House of Lords had opined that “there are rights available to private citizens which institutions of… Government are not in a position to exercise unless they can show that it is in the public interest to do so”. It was also held therein that not only was there no public interest in allowing governmental institutions to sue for libel, it was “contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech” and further that action for defamation or threat of such action “inevitably have an inhibiting effect on freedom of speech”. The learned Law Lord referred to the decision of the United States Supreme Court in New York Times v. Sullivan [376 US 254 : 11 L Ed 2d 686 89 (1964)] and certain other decisions of American Courts and observed — and this is significant for our purposes— “while these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as ‘the chilling effect’ induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available.” Accordingly, it was held that the action was not maintainable in law.” 85. Also in S. Khushboo v. Kanniammal, (2010) 5 SCC 600, this Court said: “47. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant’s remarks. If the complainants vehemently disagreed with the appellant’s views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the “freedom of speech and expression”. 86. That the content of the right under Article 19(1)(a) remains the same whatever the means of communication including internet communication is clearly established by 90 Reno’s case (supra) and by The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal & Anr., (1995) SCC 2 161 at Para 78 already referred to. It is thus clear that not only are the expressions used in Section 66A expressions of inexactitude but they are also over broad and would fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms. For example, see, Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 S.C.R. 769 at 808 -809. In point of fact, judgments of the Constitution Bench of this Court have struck down sections which are similar in nature. A prime example is the section struck down in the first Ram Manohar Lohia case, namely, Section 3 of the U.P. Special Powers Act, where the persons who “instigated” expressly or by implication any person or class of persons not to pay or to defer payment of any liability were punishable. This Court specifically held that under the Section a wide net was cast to catch a variety of acts of instigation ranging from friendly advice to systematic propaganda. It was held that in its wide amplitude, the Section takes in the innocent as well as the 91 guilty, bonafide and malafide advice and whether the person be a legal adviser, a friend or a well wisher of the person instigated, he cannot escape the tentacles of the Section. The Court held that it was not possible to predicate with some kind of precision the different categories of instigation falling within or without the field of constitutional prohibitions. It further held that the Section must be declared unconstitutional as the offence made out would depend upon factors which are uncertain. 87. In Kameshwar Prasad & Ors. v. The State of Bihar & Anr., [1962] Supp. 3 S.C.R. 369, Rule 4-A of the Bihar Government Servants Conduct Rules, 1956 was challenged. The rule states “No government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.” 88. The aforesaid rule was challenged under Articles 19 (1)(a) and (b) of the Constitution. The Court followed the law laid down in Ram Manohar Lohia’s case [1960] 2 S.C.R. 821 and 92 accepted the challenge. It first held that demonstrations are a form of speech and then held: “The approach to the question regarding the constitutionality of the rule should be whether the ban that it imposes on demonstrations would be covered by the limitation of the guaranteed rights contained in Art. 19 (2) and 19(3). In regard to both these clauses the only relevant criteria which has been suggested by the respondent-State is that the rule is framed “in the interest of public order”. A demonstration may be defined as “an expression of one’s feelings by outward signs.” A demonstration such as is prohibited by, the rule may be of the most innocent type – peaceful orderly such as the mere wearing of a badge by a Government servant or even by a silent assembly say outside office hours – demonstrations which could in no sense be suggested to involve any breach of tranquility, or of a type involving incitement to or capable of leading to disorder. If the rule had confined itself to demonstrations of type which would lead to disorder then the validity of that rule could have been sustained but what the rule does is the imposition of a blanket-ban on all demonstrations of whatever type – innocent as well as otherwise – and in consequence its validity cannot be upheld.” (at page 374) 89. The Court further went on to hold that remote disturbances of public order by demonstration would fall outside Article 19(2). The connection with public order has to be intimate, real and rational and should arise directly from the 93 demonstration that is sought to be prohibited. Finally, the Court held: “The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration – be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result.” (at page 384) 90. These two Constitution Bench decisions bind us and would apply directly on Section 66A. We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth. Possibility of an act being abused is not a ground to test its validity: 91. The learned Additional Solicitor General cited a large number of judgments on the proposition that the fact that Section 66A is capable of being abused by the persons who administered it is not a ground to test its validity if it is otherwise valid. He further assured us that this Government was 94 committed to free speech and that Section 66A would not be used to curb free speech, but would be used only when excesses are perpetrated by persons on the rights of others. In The Collector of Customs, Madras v. Nathella Sampathu Chetty & Anr., [1962] 3 S.C.R. 786, this Court observed: “….This Court has held in numerous rulings, to which it is unnecessary to refer, that the possibility of the abuse of the powers under the provisions contained in any statute is no ground for declaring the provision to be unreasonable or void. Commenting on a passage in the judgment of the Court of Appeal of Northern Ireland which stated: “If such powers are capable of being exercised reasonably it is impossible to say that they may not also be exercised unreasonably” and treating this as a ground for holding the statute invalid Viscount Simonds observed in Belfast Corporation v. O.D. Commission [ 1960 AC 490 at pp. 520-521] : “It appears to me that the short answer to this contention (and I hope its shortness will not be regarded as disrespect) is that the validity of a measure is not to be determined by its application to particular cases.… If it is not so exercised (i.e. if the powers are abused) it is open to challenge and there is no need for express provision for its challenge in the statute.” The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is 95 otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements.” (at page 825) 92. In this case, it is the converse proposition which would really apply if the learned Additional Solicitor General’s argument is to be accepted. If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered. 96 Severability: 93. The argument of the learned Additional Solicitor General on this score is reproduced by us verbatim from one of his written submissions: “Furthermore it is respectfully submitted that in the event of Hon’ble Court not being satisfied about the constitutional validity of either any expression or a part of the provision, the Doctrine of Severability as enshrined under Article 13 may be resorted to.” 94. The submission is vague: the learned Additional Solicitor General does not indicate which part or parts of Section 66A can possibly be saved. This Court in Romesh Thappar v. The State of Madras, [1950] S.C.R. 594 repelled a contention of severability when it came to the courts enforcing the fundamental right under Article 19(1)(a) in the following terms: “It was, however, argued that Section 9(1-A) could not be considered wholly void, as, under Article 13(1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more. Insofar as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned provision, as applied to the latter purpose, was covered by clause (2) of Article 19 97 and must, it was said, be held to be valid. We are unable to accede to this contention. Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of Article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.” (At page 603) 95. It has been held by us that Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. We have held following K.A. Abbas’ case (Supra) that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be held to be wholly unconstitutional and void. Romesh Thappar’s Case was 98 distinguished in R.M.D. Chamarbaugwalla v. The Union of India, [1957] S.C.R. 930 in the context of a right under Article 19(1)(g) as follows: “20. In Romesh Thappar v. State of Madras [ (1950) SCR 594] , the question was as to the validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 23 of 1949. That section authorised the Provincial Government to prohibit the entry and circulation within the State of a newspaper “for the purpose of securing the public safety or the maintenance of public order.” Subsequent to the enactment of this statute, the Constitution came into force, and the validity of the impugned provision depended on whether it was protected by Article 19(2), which saved “existing law insofar as it relates to any matter which undermines the security of or tends to overthrow the State.” It was held by this Court that as the purposes mentioned in Section 9(1-A) of the Madras Act were wider in amplitude than those specified in Article 19(2), and as it was not possible to split up Section 9(1-A) into what was within and what was without the protection of Article 19(2), the provision must fail in its entirety. That is really a decision that the impugned provision was on its own contents inseverable. It is not an authority for the position that even when a provision is severable, it must be struck down on the ground that the principle of severability is inadmissible when the invalidity of a statute arises by reason of its contravening constitutional prohibitions. It should be mentioned that the decision in Romesh Thappar v. State of Madras [ (1950) SCR 594] was referred to in State of Bombay v. F.N. Balsara [ (1951) SCR 682] and State of 99 Bombay v. United Motors (India) Ltd. [ (1953) SCR 1069 at 1098-99] and distinguished.” 96. The present being a case of an Article 19(1)(a) violation, Romesh Thappar’s judgment would apply on all fours. In an Article 19(1)(g) challenge, there is no question of a law being applied for purposes not sanctioned by the Constitution for the simple reason that the eight subject matters of Article 19(2) are conspicuous by their absence in Article 19(6) which only speaks of reasonable restrictions in the interests of the general public. The present is a case where, as has been held above, Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional. Article 14 97. Counsel for the petitioners have argued that Article 14 is also infringed in that an offence whose ingredients are vague in nature is arbitrary and unreasonable and would result in 100 arbitrary and discriminatory application of the criminal law. Further, there is no intelligible differentia between the medium of print, broadcast, and real live speech as opposed to speech on the internet and, therefore, new categories of criminal offences cannot be made on this ground. Similar offences which are committed on the internet have a three year maximum sentence under Section 66A as opposed to defamation which has a two year maximum sentence. Also, defamation is a non-cognizable offence whereas under Section 66A the offence is cognizable. 98. We have already held that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). We have also held that the wider range of circulation over the internet cannot restrict the content of the right under Article 19(1)(a) nor can it justify its denial. However, when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as 101 opposed to speech on the internet. The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world. If the petitioners were right, this Article 14 argument would apply equally to all other offences created by the Information Technology Act which are not the subject matter of challenge in these petitions. We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail. Procedural Unreasonableness 99. One other argument must now be considered. According to the petitioners, Section 66A also suffers from the vice of procedural unreasonableness. In that, if, for example, criminal defamation is alleged, the safeguards available under Section 102 199 Cr.P.C. would not be available for a like offence committed under Section 66A. Such safeguards are that no court shall take cognizance of such an offence except upon a complaint made by some person aggrieved by the offence and that such complaint will have to be made within six months from the date on which the offence is alleged to have been committed. Further, safeguards that are to be found in Sections 95 and 96 of the Cr.P.C. are also absent when it comes to Section 66A. For example, where any newspaper book or document wherever printed appears to contain matter which is obscene, hurts the religious feelings of some community, is seditious in nature, causes enmity or hatred to a certain section of the public, or is against national integration, such book, newspaper or document may be seized but under Section 96 any person having any interest in such newspaper, book or document may within two months from the date of a publication seizing such documents, books or newspapers apply to the High court to set aside such declaration. Such matter is to be heard by a Bench consisting of at least three Judges or in High Courts which 103 consist of less than three Judges, such special Bench as may be composed of all the Judges of that High Court. 100. It is clear that Sections 95 and 96 of the Criminal Procedure Code reveal a certain degree of sensitivity to the fundamental right to free speech and expression. If matter is to be seized on specific grounds which are relatable to the subject matters contained in Article 19(2), it would be open for persons affected by such seizure to get a declaration from a High Court consisting of at least three Judges that in fact publication of the so-called offensive matter does not in fact relate to any of the specified subjects contained in Article 19(2). Further, Section 196 of the Cr.P.C. states: “196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.— (1) No Court shall take cognizance of— (a) any offence punishable under Chapter VI or under Section 153-A, [Section 295-A or sub-section (1) of Section 505] of the Indian Penal Code, 1860 (45 of 1860), or (b) a criminal conspiracy to commit such offence, or (c) any such abetment, as is described in Section 108-A of the Indian Penal Code (45 of 1860), 104 except with the previous sanction of the Central Government or of the State Government. [(1-A) No Court shall take cognizance of— (a) any offence punishable under Section 153-B or sub-section (2) or sub-section (3) of Section 505 of the Indian Penal Code, 1860 (45 of 1860), or (b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.] (2) No court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit [an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of Section 195 apply, no such consent shall be necessary. (3) The Central Government or the State Government may, before according sanction [under sub-section (1) or sub-section (1-A) and the District Magistrate may, before according sanction under sub-section (1-A)] and the State Government or the District Magistrate may, before giving consent under sub-section (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of Section 155.” 105 101. Again, for offences in the nature of promoting enmity between different groups on grounds of religion etc. or offences relatable to deliberate and malicious acts intending to outrage religious feelings or statements that create or promote enmity, hatred or ill-will between classes can only be taken cognizance of by courts with the previous sanction of the Central Government or the State Government. This procedural safeguard does not apply even when a similar offence may be committed over the internet where a person is booked under Section 66A instead of the aforesaid Sections. Having struck down Section 66A on substantive grounds, we need not decide the procedural unreasonableness aspect of the Section. Section 118 of the Kerala Police Act. 102. Learned counsel for the Petitioner in Writ Petition No. 196 of 2014 assailed sub-section (d) of Section 118 which is set out hereinbelow: “118. Penalty for causing grave violation of public order or danger.- Any person who,- 106 (d) Causes annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means; shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.” 103. Learned counsel first assailed the Section on the ground of legislative competence stating that this being a Kerala Act, it would fall outside Entries1 and 2 of List II and fall within Entry 31 of List I. In order to appreciate the argument we set out the relevant entries: “List – I 31. Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication. List – II 1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power). 2. Police (including railway and village police) subject to the provisions of entry 2A of List I.” 107 The Kerala Police Act as a whole would necessarily fall under Entry 2 of List II. In addition, Section 118 would also fall within Entry 1 of List II in that as its marginal note tells us it deals with penalties for causing grave violation of public order or danger. 104. It is well settled that a statute cannot be dissected and then examined as to under what field of legislation each part would separately fall. In A.S. Krishna v. State of Madras, [1957] S.C.R. 399, the law is stated thus: “The position, then, might thus be summed up : When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not.” (at page 410) 108 105. It is, therefore, clear that the Kerala Police Act as a whole and Section 118 as part thereof falls in pith and substance within Entry 2 List II, notwithstanding any incidental encroachment that it may have made on any other Entry in List I. Even otherwise, the penalty created for causing annoyance in an indecent manner in pith and substance would fall within Entry 1 List III which speaks of criminal law and would thus be within the competence of the State Legislature in any case. 106. However, what has been said about Section 66A would apply directly to Section 118(d) of the Kerala Police Act, as causing annoyance in an indecent manner suffers from the same type of vagueness and over breadth, that led to the invalidity of Section 66A, and for the reasons given for striking down Section 66A, Section 118(d) also violates Article 19(1)(a) and not being a reasonable restriction on the said right and not being saved under any of the subject matters contained in Article 19(2) is hereby declared to be unconstitutional. 109 Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. 107. Section 69A of the Information Technology Act has already been set out in paragraph 2 of the judgment. Under sub-section (2) thereof, the 2009 Rules have been framed. Under Rule 3, the Central Government shall designate by notification in the official gazette an officer of the Central Government not below the rank of a Joint Secretary as the Designated Officer for the purpose of issuing direction for blocking for access by the public any information referable to Section 69A of the Act. Under Rule 4, every organization as defined under Rule 2(g), (which refers to the Government of India, State Governments, Union Territories and agencies of the Central Government as may be notified in the Official Gazette by the Central Government)– is to designate one of its officers as the “Nodal Officer”. Under Rule 6, any person may send their complaint to the “Nodal Officer” of the concerned Organization for blocking, which complaint will then have to be examined by the concerned Organization regard being had to the parameters laid down in Section 69A(1) and after being so 110 satisfied, shall transmit such complaint through its Nodal Officer to the Designated Officer in a format specified by the Rules. The Designated Officer is not to entertain any complaint or request for blocking directly from any person. Under Rule 5, the Designated Officer may on receiving any such request or complaint from the Nodal Officer of an Organization or from a competent court, by order direct any intermediary or agency of the Government to block any information or part thereof for the reasons specified in 69A(1). Under Rule 7 thereof, the request/complaint shall then be examined by a Committee of Government Personnel who under Rule 8 are first to make all reasonable efforts to identify the originator or intermediary who has hosted the information. If so identified, a notice shall issue to appear and submit their reply at a specified date and time which shall not be less than 48 hours from the date and time of receipt of notice by such person or intermediary. The Committee then examines the request and is to consider whether the request is covered by 69A(1) and is then to give a specific recommendation in writing to the Nodal Officer of the concerned Organization. It is only thereafter that the 111 Designated Officer is to submit the Committee’s recommendation to the Secretary, Department of Information Technology who is to approve such requests or complaints. Upon such approval, the Designated Officer shall then direct any agency of Government or intermediary to block the offending information. Rule 9 provides for blocking of information in cases of emergency where delay caused would be fatal in which case the blocking may take place without any opportunity of hearing. The Designated Officer shall then, not later than 48 hours of the issue of the interim direction, bring the request before the Committee referred to earlier, and only on the recommendation of the Committee, is the Secretary Department of Information Technology to pass the final order. Under Rule 10, in the case of an order of a competent court in India, the Designated Officer shall, on receipt of a certified copy of a court order, submit it to the Secretary, Department of Information Technology and then initiate action as directed by the Court. In addition to the above safeguards, under Rule 14 a Review Committee shall meet at least once in two months and record its findings as to whether directions issued are in 112 accordance with Section 69A(1) and if it is of the contrary opinion, the Review Committee may set aside such directions and issue orders to unblock the said information. Under Rule 16, strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof. 108. Learned counsel for the petitioners assailed the constitutional validity of Section 69A, and assailed the validity of the 2009 Rules. According to learned counsel, there is no pre-decisional hearing afforded by the Rules particularly to the “originator” of information, which is defined under Section 2(za) of the Act to mean a person who sends, generates, stores or transmits any electronic message; or causes any electronic message to be sent, generated, stored or transmitted to any other person. Further, procedural safeguards such as which are provided under Section 95 and 96 of the Code of Criminal Procedure are not available here. Also, the confidentiality provision was assailed stating that it affects the fundamental rights of the petitioners. 113 109. It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution. 110. The Rules further provide for a hearing before the Committee set up – which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person” i.e. the originator is identified he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made. It is only an 114 intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of Section 69A. 111. Merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available does not make the Rules constitutionally infirm. We are of the view that the Rules are not constitutionally infirm in any manner. Section 79 and the Information Technology (Intermediary Guidelines) Rules, 2011. 112. Section 79 belongs to Chapter XII of the Act in which intermediaries are exempt from liability if they fulfill the conditions of the Section. Section 79 states: “79. Exemption from liability of intermediary in certain cases.—(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him. (2) The provisions of sub-section (1) shall apply if— (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not— 115 (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission; (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. (3) The provisions of sub-section (1) shall not apply if— (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.]” 113. Under the 2011 Rules, by Rule 3 an intermediary has not only to publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary’s computer resource but he has also to inform all users of the various matters set out in Rule 3(2). Since Rule 3(2) and 3(4) are important, they are set out hereinbelow:- 116 “3. Due diligence to be observed by intermediary.—The intermediary shall observe following due diligence while discharging his duties, namely:— (2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that— (a) belongs to another person and to which the user does not have any right to; (b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (c) harm minors in any way; (d) infringes any patent, trademark, copyright or other proprietary rights; (e) violates any law for the time being in force; (f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; (g) impersonate another person; (h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; 117 (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation. (4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through e-mail signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty-six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes.” 114. Learned counsel for the petitioners assailed Rules 3(2) and 3(4) on two basic grounds. Firstly, the intermediary is called upon to exercise its own judgment under sub-rule (4) and then disable information that is in contravention of sub-rule (2), when intermediaries by their very definition are only persons who offer a neutral platform through which persons may interact with each other over the internet. Further, no safeguards are provided as in the 2009 Rules made under Section 69A. Also, for the very reasons that Section 66A is bad, the petitioners 118 assailed sub-rule (2) of Rule 3 saying that it is vague and over broad and has no relation with the subjects specified under Article 19(2). 115. One of the petitioners’ counsel also assailed Section 79(3)(b) to the extent that it makes the intermediary exercise its own judgment upon receiving actual knowledge that any information is being used to commit unlawful acts. Further, the expression “unlawful acts” also goes way beyond the specified subjects delineated in Article 19(2). 116. It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69A. We have seen how under Section 69A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary. We have also seen how there are only two ways in which a blocking order can be passed – one by the Designated Officer after complying with the 2009 Rules 119 and the other by the Designated Officer when he has to follow an order passed by a competent court. The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69A read with 2009 Rules. 117. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). Unlawful acts beyond what is laid down in 120 Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3) (b). 118. The learned Additional Solicitor General informed us that it is a common practice worldwide for intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The knowledge spoken of in the said sub-rule must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid. 119. In conclusion, we may summarise what has been held by us above: (a)Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). 121 (b)Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. (c)Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. (d)Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2). All the writ petitions are disposed in the above terms. ….…..…..…………………………J. (J. Chelameswar) ….…..…..…………………………J. (R.F. Nariman) New Delhi, 122 March 24, 2015. 123

Domestic Violence Case can be filed against the women too SC Judgment

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10084 of 2016
(ARISING OUT OF SLP (CIVIL) NO. 9132 OF 2015)
HIRAL P. HARSORA AND ORS. …APPELLANTS
VERSUS
KUSUM NAROTTAMDAS HARSORA
AND ORS. …RESPONDENTS
J U D G M E N T
R.F. Nariman, J.
1. Leave granted.
2. The present appeal arises out of a judgment dated
25.9.2014 of a Division Bench of the Bombay High Court. It
raises an important question as to the constitutional validity of
Section 2(q) of the Protection of Women from Domestic
Violence Act, 2005, (hereinafter referred to as “the 2005 Act”).
3. On 3.4.2007, Kusum Narottam Harsora and her mother
Pushpa Narottam Harsora filed a complaint under the 2005 Act
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against Pradeep, the brother/son, and his wife, and two
sisters/daughters, alleging various acts of violence against
them. The said complaint was withdrawn on 27.6.2007 with
liberty to file a fresh complaint.
4. Nothing happened for over three years till the same duo
of mother and daughter filed two separate complaints against
the same respondents in October, 2010. An application was
moved before the learned Metropolitan Magistrate for a
discharge of respondent Nos. 2 to 4 stating that as the
complaint was made under Section 2(a) read with Section 2(q)
of the 2005 Act, it can only be made against an adult male
person and the three respondents not being adult male persons
were, therefore, required to be discharged. The Metropolitan
Magistrate passed an order dated 5.1.2012 in which such
discharge was refused. In a writ petition filed against the said
order, on 15.2.2012, the Bombay High Court, on a literal
construction of the 2005 Act, discharged the aforesaid three
respondents from the complaint. We have been informed that
this order has since attained finality.
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5. The present proceedings arise because mother and
daughter have now filed a writ petition, being writ petition
No.300/2013, in which the constitutional validity of Section 2(q)
has been challenged. Though the writ petition was amended,
there was no prayer seeking any interference with the order
dated 15.2.2012, which, as has already been stated
hereinabove, has attained finality.
6. The Bombay High Court by the impugned judgment dated
25.9.2014 has held that Section 2(q) needs to be read down in
the following manner:-
“In view of the above discussion and in view of the
fact that the decision of the Delhi High Court in
Kusum Lata Sharma’s case has not been disturbed
by the Supreme Court, we are inclined to read down
the provisions of section 2(q) of the DV Act and to
hold that the provisions of “respondent” in
section 2(q) of the DV Act is not to be read in
isolation but has to be read as a part of the scheme
of the DV Act, and particularly along with the
definitions of “aggrieved person”, “domestic
relationship” and “shared household” in clauses (a),
(f) and (s) of section 2 of the DV Act. If so read, the
complaint alleging acts of domestic violence is
maintainable not only against an adult male person
who is son or brother, who is or has been in a
domestic relationship with the aggrieved
complainant- mother or sister, but the complaint can
also be filed against a relative of the son or brother
including wife of the son / wife of the brother and
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sisters of the male respondent. In other words, in
our view, the complaint against the daughter-in-law,
daughters or sisters would be maintainable under
the provisions of the DV Act, where they are corespondent/s
in a complaint against an adult male
person, who is or has been in a domestic
relationship with the complainant and such corespondent/s.
It must, of course, be held that a
complaint under the DV Act would not be
maintainable against daughter-in-law, sister-in- law
or sister of the complainant, if no complaint is filed
against an adult male person of the family.”
7. The present appeal has been filed against this judgment.
Shri Harin P. Raval, learned senior advocate appearing on
behalf of the appellants, assailed the judgment, and has argued
before us that it is clear that the “respondent” as defined in
Section 2(q) of the said Act can only mean an adult male
person. He has further argued that the proviso to Section 2(q)
extends “respondent” only in the case of an aggrieved wife or
female living in a relationship in the nature of a marriage, in
which case even a female relative of the husband or male
partner may be arraigned as a respondent. He sought to assail
the judgment on the ground that the Court has not read down
the provision of Section 2(q), but has in fact read the proviso
into the main enacting part of the said definition, something that
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was impermissible in law. He has argued before us that the
2005 Act is a penal statute and should be strictly construed in
the event of any ambiguity. He further argued that in fact there
was no ambiguity because the expression “adult male person”
cannot be diluted in the manner done by the High Court in the
impugned judgment. He cited a large number of judgments on
the golden rule of literal construction, on how reading down
cannot be equated to re-reading in constitutional law, and on
how a proviso cannot be introduced into the main part of a
provision so as to distort its language. He also cited before us
judgments which stated that even though a statute may lead to
some hardship, that would not necessarily render the provision
unconstitutional nor, in the process of interpretation, can a
Court mend or bend the provision in the face of the plain
language used. He also cited judgments before us stating that
given the plain language, it is clear that it is only for the
legislature to make the changes suggested by the High Court.
8. Ms. Meenakshi Arora, learned senior counsel appearing
on behalf of the respondents, countered each of these
submissions. First and foremost, she argued that the 2005 Act
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is a piece of social beneficial legislation enacted to protect
women from domestic violence of all kinds. This being the
case, it is clear that any definition which seeks to restrict the
reach of the Act would have to be either struck down as being
violative of Article 14 of the Constitution or read down.
According to her, given the object of the statute, which is
discernible clearly from the statement of objects and reasons,
the preamble, and various provisions of the 2005 Act which she
took us through, it is clear that the expression “adult male
person” is a classification not based on any intelligible
differentia, and not having any rational relationship with the
object sought to be achieved by the Act. In fact, in her
submission, the said expression goes contrary to the object of
the Act, which is to afford the largest possible protection to
women from domestic violence by any person, male or female,
who happens to share either a domestic relationship or shared
household with the said woman. In the alternative, she argued
that the High Court judgment was right, and that if the said
expression is not struck down, it ought to be read down in the
manner suggested to make it constitutional. She also added
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that the doctrine of severability would come to her rescue, and
that if the said expression were deleted from Section 2(q), the
Act as a whole would stand and the object sought to be
achieved would only then be fulfilled. She referred to a large
number of judgments on Article 14 and the doctrine of
severability generally. She also argued that within the definition
of “shared household” in Section 2(s) of the Act, the
“respondent” may be a member of a joint family. She has
adverted to the amendment made to the Hindu Succession Act
in 2005, by which amendment females have also become
coparceners in a joint Hindu family, and she argued that
therefore the 2005 Act is not in tune with the march of statutory
law in other areas. She also countered the submission of Shri
Raval stating that the 2005 Act is in fact a piece of beneficial
legislation which is not penal in nature but which affords various
remedies which are innovative in nature and which cannot be
availed of in the ordinary civil courts. She added that Section 31
alone was a penal provision for not complying with a protection
order, and went on to state that the modern rule as to penal
provisions is different from that sought to be contended by Shri
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Raval, and that such rule requires the court to give a fair
interpretation to the provisions of these statutes, neither leaning
in favour of the accuser or the accused. She also added that
given the beneficial statute that we have to strike
down/interpret, a purposive construction alone should be given,
and as the offending expression “adult male person” is contrary
to such purpose and would lead to absurdities and anomalies, it
ought to be construed in tune with the Act as a whole, which
therefore would include females, as well, as respondents. She
also pointed out that, at present, the sweep of the Act was such
that if a mother-in-law or sister-in-law were to be an aggrieved
person, they could only be aggrieved against adult male
members and not against any opposing female member of a
joint family – for example, a daughter-in-law or a sister-in-law.
This will unnecessary stultify what was sought to be achieved
by the Act, and would make the Act a dead letter insofar as
these persons are concerned. She also argued that the Act
would become unworkable in that the reliefs that were to be
given would only be reliefs against adult male members and not
their abettors who may be females.
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9. Ms. Pinky Anand, learned Additional Solicitor General for
India, more or less adopted the arguments of the counsel who
appeared for the Union of India in the Bombay High Court. It
was her submission that in view of the judgment in Kusum
Lata Sharma v. State (Crl. M.C. No.75 of 2011 dated 2.9.2011)
of the Delhi High Court, laying down that the mother-in-law is
also entitled to file a complaint against the daughter-in-law
under the provisions of the 2005 Act, and the SLP against the
said judgment having been dismissed by the Supreme Court,
her stand was that it would be open to a mother-in-law to file a
complaint against her son as well as her daughter-in-law and
other female relatives of the son. In short, she submitted that
the impugned judgment does not require interference at our
end.
10. This appeal therefore raises a very important question in
the area of protection of the female sex generally. The Court
has first to ascertain what exactly is the object sought to be
achieved by the 2005 Act. In doing so, this Court has to see the
statement of objects and reasons, the preamble and the
provisions of the 2005 Act as a whole. In so doing, this Court is
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only following the law already laid down in the following
judgments.
11. In Shashikant Laxman Kale v. Union of India, (1990) 2
SCR 441, this Court was faced with the constitutional validity of
an exemption section contained in the Indian Income Tax Act,
1961. After referring in detail to Re: Special Courts Bill, 1979
2 SCR 476 and the propositions laid down therein on Article 14
generally and a few other judgments, this Court held:-
“It is first necessary to discern the true purpose or
object of the impugned enactment because it is only
with reference to the true object of the enactment
that the existence of a rational nexus of the
differentia on which the classification is based, with
the object sought to be achieved by the enactment,
can be examined to test the validity of the
classification. In Francis Bennion’s Statutory
Interpretation, (1984 edn.), the distinction between
the legislative intention and the purpose or object of
the legislation has been succinctly summarised at p.
237 as under:
“The distinction between the purpose or object of
an enactment and the legislative intention governing
it is that the former relates to the mischief to which
the enactment is directed and its remedy, while the
latter relates to the legal meaning of the enactment.”
There is thus a clear distinction between the two.
While the purpose or object of the legislation is to
provide a remedy for the malady, the legislative
intention relates to the meaning or exposition of the
remedy as enacted. While dealing with the validity
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of a classification, the rational nexus of the
differentia on which the classification is based has
to exist with the purpose or object of the legislation,
so determined. The question next is of the manner
in which the purpose or object of the enactment has
to be determined and the material which can be
used for this exercise. For determining the purpose
or object of the legislation, it is permissible to look
into the circumstances which prevailed at the time
when the law was passed and which necessitated
the passing of that law. For the limited purpose of
appreciating the background and the antecedent
factual matrix leading to the legislation, it is
permissible to look into the Statement of Objects
and Reasons of the Bill which actuated the step to
provide a remedy for the then existing malady. In A.
Thangal Kunju Musaliar v. M. Venkitachalam
Potti [(1955) 2 SCR 1196 : AIR 1956 SC 246 :
(1956) 29 ITR 349] , the Statement of Objects and
Reasons was used for judging the reasonableness
of a classification made in an enactment to see if it
infringed or was contrary to the Constitution. In that
decision for determining the question, even affidavit
on behalf of the State of “the circumstances which
prevailed at the time when the law there under
consideration had been passed and which
necessitated the passing of that law” was relied on.
It was reiterated in State of West Bengal v. Union of
India [(1964) 1 SCR 371 : AIR 1963 SC 1241] that
the Statement of Objects and Reasons
accompanying a Bill, when introduced in
Parliament, can be used for ‘the limited purpose of
understanding the background and the antecedent
state of affairs leading up to the legislation’.
Similarly, in Pannalal Binjraj v. Union of India [1957
SCR 233 : AIR 1957 SC 397 : (1957) 31 ITR 565] a
challenge to the validity of classification was
repelled placing reliance on an affidavit filed on
behalf of the Central Board of Revenue disclosing
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the true object of enacting the impugned provision
in the Income Tax Act.”
12. To similar effect, this Court held in Harbilas Rai Bansal v.
State of Punjab, (1996) 1 SCC 1, as follows:
“The scope of Article 14 has been authoritatively
laid down by this Court in innumerable decisions
including Budhan Choudhry v. State of Bihar [(1955)
1 SCR 1045 : AIR 1955 SC 191] , Ram Krishna
Dalmia v. Justice S.R. Tendolkar [1959 SCR 279 :
AIR 1958 SC 538] , Western U.P. Electric Power
and Supply Co. Ltd. v. State of U.P. [(1969) 1 SCC
817] and Mohd. Hanif Quareshi v. State of
Bihar [1959 SCR 629 : AIR 1958 SC 731] . To be
permissible under Article 14 of the Constitution a
classification must satisfy two conditions namely (i)
that the classification must be founded on an
intelligible differentia which distinguishes persons or
things that are grouped together from others left out
of the group and (ii) that differentia must have a
rational relation to the object sought to be achieved
by the statute in question. The classification may be
founded on different basis, but what is necessary is
that there must be a nexus between the basis of
classification and the object of the Act under
consideration.
The statement of objects and reasons of the Act is
as under:
“Statement of Objects and Reasons of the East
Punjab Urban Rent Restriction Act, 1949 (Act 3 of
1949).— Under Article 6 of the India (Provisional
Constitution) Order, 1947, any law made by the
Governor of the Punjab by virtue of Section 93 of
the Government of India Act, 1935, which was in
force immediately before 15-8-1947, is to remain in
force for two years from the date on which the
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Proclamation ceased to have effect, viz., 14-8-1947.
A Governor’s Act will, therefore, cease to have effect
on 14-8-1949. It is desired that the Punjab Urban
Rent Restriction Act, 1947 (Punjab Act No. VI of
1947), being a Governor’s Act, be re-enacted as a
permanent measure, as the need for restricting the
increase of rents of certain premises situated within
the limits of urban areas and the protection of
tenants against mala fide attempts by their landlords
to procure their eviction would be there even after
14-8-1949.
In order to achieve the above object, a new Act
incorporating the provisions of the Punjab Urban
Rent Restriction Act, 1947 with necessary
modification is being enacted.”
It is obvious from the objects and reasons quoted
above that the primary purpose for legislating the
Act was to protect the tenants against the mala fide
attempts by their landlords to procure their eviction.
Bona fide requirement of a landlord was, therefore,
provided in the Act — as originally enacted — a
ground to evict the tenant from the premises
whether residential or non-residential.
The provisions of the Act, prior to the amendment,
were uniformly applicable to the residential and
non-residential buildings. The amendment, in the
year 1956, created the impugned classification. The
objects and reasons of the Act indicate that it was
enacted with a view to restrict the increase of rents
and to safeguard against the mala fide eviction of
tenants. The Act, therefore, initially provided —
conforming to its objects and reasons — bona fide
requirement of the premises by the landlord,
whether residential or non-residential, as a ground
of eviction of the tenant. The classification created
by the amendment has no nexus with the object
sought to be achieved by the Act. To vacate a
premises for the bona fide requirement of the
landlord would not cause any hardship to the
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tenant. Statutory protection to a tenant cannot be
extended to such an extent that the landlord is
precluded from evicting the tenant for the rest of his
life even when he bona fide requires the premises
for his personal use and occupation. It is not the
tenants but the landlords who are suffering great
hardships because of the amendment. A landlord
may genuinely like to let out a shop till the time he
bona fide needs the same. Visualise a case of a
shopkeeper (owner) dying young. There may not be
a member in the family to continue the business and
the widow may not need the shop for quite some
time. She may like to let out the shop till the time
her children grow up and need the premises for
their personal use. It would be wholly arbitrary — in
a situation like this — to deny her the right to evict
the tenant. The amendment has created a situation
where a tenant can continue in possession of a
non-residential premises for life and even after the
tenant’s death his heirs may continue the tenancy.
We have no doubt in our mind that the objects,
reasons and the scheme of the Act could not have
envisaged the type of situation created by the
amendment which is patently harsh and grossly
unjust for the landlord of a non-residential
premises.” [paras 8, 9 &13]
13. In accordance with the law laid down in these judgments
it is important first to discern the object of the 2005 Act from the
statement of objects and reasons:-
STATEMENT OF OBJECTS AND REASONS
1. Domestic violence is undoubtedly a human rights
issue and serious deterrent to development. The
Vienna Accord of 1994 and the Beijing Declaration
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and the Platform for Action (1995) have
acknowledged this. The United Nations Committee
on Convention on Elimination of All Forms of
Discrimination Against Women (CEDAW) in its
General Recommendation No. XII (1989) has
recommended that State parties should act to
protect women against violence of any kind
especially that occurring within the family.
2. The phenomenon of domestic violence is widely
prevalent but has remained largely invisible in the
public domain. Presently, where a woman is
subjected to cruelty by her husband or his relatives,
it is an offence under section 498A of the Indian
Penal Code. The civil law does not however
address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping
in view the rights guaranteed under articles 14, 15
and 21 of the Constitution to provide for a remedy
under the civil law which is intended to protect the
woman from being victims of domestic violence and
to prevent the occurrence of domestic violence in
the society.
4. The Bill, inter alia, seeks to provide for the
following:-
(i) It covers those women who are or have been in a
relationship with the abuser where both parties
have lived together in a shared household and
are related by consanguinity, marriage or through
a relationship in the nature of marriage or
adoption. In addition, relationships with family
members living together as a joint family are also
included. Even those women who are sisters,
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widows, mothers, single women, or living with the
abuser are entitled to legal protection under the
proposed legislation. However, whereas the Bill
enables the wife or the female living in a
relationship in the nature of marriage to file a
complaint under the proposed enactment against
any female relative of husband or the male
partner, it does not enable any female relative of
the husband or the male partner to file a
complaint against the wife or the female partner.
(ii) It defines the expression “domestic violence” to
include actual abuse or threat or abuse that is
physical, sexual, verbal, emotional or economic.
Harassment by way of unlawful dowry demands
to the woman or her relatives would also be
covered under this definition.
(iii) It provides for the rights of women to secure
housing. It also provides household, whether or
not she has any title or rights in such home or
household. This right is secured by a residence
order, which is passed by the Magistrate.
iv) It empowers the Magistrate to pass protection
orders in favour of the aggrieved person to
prevent the respondent from aiding or committing
an act of domestic violence or any other
specified act, entering a workplace or any other
place frequented by the aggrieved person,
attempting to communicate with her, isolating any
assets used by both the parties and causing
violence to the aggrieved person, her relatives or
others who provide her assistance from the
domestic violence.
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(v)It provides for appointment of Protection Officers
and registration of non-governmental
organizations as service providers for providing
assistance to the aggrieved person with respect
to her medical examination, obtaining legal aid,
safe shelter, etc.
5. The Bill seeks to achieve the above objects. The
notes on clauses explain the various provisions
contained in the Bill.”
14. A cursory reading of the statement of objects and reasons
makes it clear that the phenomenon of domestic violence
against women is widely prevalent and needs redressal.
Whereas criminal law does offer some redressal, civil law does
not address this phenomenon in its entirety. The idea therefore
is to provide various innovative remedies in favour of women
who suffer from domestic violence, against the perpetrators of
such violence.
15. The preamble of the statute is again significant. It states:
Preamble
“An Act to provide for more effective protection of
the rights of women guaranteed under the
constitution who are victims of violence of any kind
occurring within the family and for matters
connected therewith or incidental thereto.”
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16. What is of great significance is that the 2005 Act is to
provide for effective protection of the rights of women who are
victims of violence of any kind occurring within the family. The
preamble also makes it clear that the reach of the Act is that
violence, whether physical, sexual, verbal, emotional or
economic, are all to be redressed by the statute. That the
perpetrators and abettors of such violence can, in given
situations, be women themselves, is obvious. With this object
in mind, let us now examine the provisions of the statute itself.
17. The relevant provisions of the statute are contained in the
following Sections:
“2. Definitions.—In this Act, unless the context
otherwise requires,—
(a) “aggrieved person” means any woman who is, or
has been, in a domestic relationship with the
respondent and who alleges to have been subjected
to any act of domestic violence by the respondent;
(f) “domestic relationship” means a relationship
between two persons who live or have, at any point
of time, lived together in a shared household, when
they are related by consanguinity, marriage, or
through a relationship in the nature of marriage,
adoption or are family members living together as a
joint family;
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(q) “respondent” means any adult male person who
is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved
person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file
a complaint against a relative of the husband or the
male partner.
(s) “shared household” means a household where
the person aggrieved lives or at any stage has lived
in a domestic relationship either singly or along with
the respondent and includes such a household
whether owned or tenanted either jointly by the
aggrieved person and the respondent, or owned or
tenanted by either of them in respect of which either
the aggrieved person or the respondent or both
jointly or singly have any right, title, interest or
equity and includes such a household which may
belong to the joint family of which the respondent is
a member, irrespective of whether the respondent
or the aggrieved person has any right, title or
interest in the shared household.
3. Definition of domestic violence.—For the
purposes of this Act, any act, omission or
commission or conduct of the respondent shall
constitute domestic violence in case it—
(a) harms or injures or endangers the health, safety,
life, limb or well-being, whether mental or physical,
of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse,
verbal and emotional abuse and economic abuse;
or
(b) harasses, harms, injures or endangers the
aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful
demand for any dowry or other property or valuable
security; or
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(c) has the effect of threatening the aggrieved
person or any person related to her by any conduct
mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether
physical or mental, to the aggrieved person.
Explanation I.—For the purposes of this section,—
(i) “physical abuse” means any act or conduct which
is of such a nature as to cause bodily pain, harm, or
danger to life, limb, or health or impair the health or
development of the aggrieved person and includes
assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual
nature that abuses, humiliates, degrades or
otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and
insults or ridicule specially with regard to not having
a child or a male child; and
(b) repeated threats to cause physical pain to any
person in whom the aggrieved person is interested.
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial
resources to which the aggrieved person is entitled
under any law or custom whether payable under an
order of a court or otherwise or which the aggrieved
person requires out of necessity including, but not
limited to, household necessities for the aggrieved
person and her children, if any, stridhan, property,
jointly or separately owned by the aggrieved person,
payment of rental related to the shared household
and maintenance;
(b) disposal of household effects, any alienation of
assets whether movable or immovable, valuables,
shares, securities, bonds and the like or other
property in which the aggrieved person has an
interest or is entitled to use by virtue of the domestic
relationship or which may be reasonably required by
the aggrieved person or her children or her stridhan
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or any other property jointly or separately held by
the aggrieved person; and
(c) prohibition or restriction to continued access to
resources or facilities which the aggrieved person is
entitled to use or enjoy by virtue of the domestic
relationship including access to the shared
household. Explanation II.—For the purpose of
determining whether any act, omission, commission
or conduct of the respondent constitutes “domestic
violence” under this section, the overall facts and
circumstances of the case shall be taken into
consideration.
17. Right to reside in a shared household.—
(1) Notwithstanding anything contained in any other
law for the time being in force, every woman in a
domestic relationship shall have the right to reside
in the shared household, whether or not she has
any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or
excluded from the shared household or any part of it
by the respondent save in accordance with the
procedure established by law.
18. Protection orders.—The Magistrate may, after
giving the aggrieved person and the respondent an
opportunity of being heard and on being prima facie
satisfied that domestic violence has taken place or
is likely to take place, pass a protection order in
favour of the aggrieved person and prohibit the
respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of
domestic violence;
(c) entering the place of employment of the
aggrieved person or, if the person aggrieved is a
child, its school or any other place frequented by the
aggrieved person;
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(d) attempting to communicate in any form,
whatsoever, with the aggrieved person, including
personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or
bank accounts used or held or enjoyed by both the
parties, jointly by the aggrieved person and the
respondent or singly by the respondent, including
her stridhan or any other property held either jointly
by the parties or separately by them without the
leave of the Magistrate;
(f) causing violence to the dependants, other
relatives or any person who give the aggrieved
person assistance from domestic violence;
(g) committing any other act as specified in the
protection order.
19. Residence orders.—
(1) While disposing of an application under
sub-section (1) of section 12, the Magistrate may,
on being satisfied that domestic violence has taken
place, pass a residence order—
(a) restraining the respondent from dispossessing or
in any other manner disturbing the possession of
the aggrieved person from the shared household,
whether or not the respondent has a legal or
equitable interest in the shared household;
(b) directing the respondent to remove himself from
the shared household;
(c) restraining the respondent or any of his relatives
from entering any portion of the shared household
in which the aggrieved person resides;
(d) restraining the respondent from alienating or
disposing of the shared household or encumbering
the same;
(e) restraining the respondent from renouncing his
rights in the shared household except with the leave
of the Magistrate; or
(f) directing the respondent to secure same level of
alternate accommodation for the aggrieved person
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as enjoyed by her in the shared household or to pay
rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be
passed against any person who is a woman.
(2) The Magistrate may impose any additional
conditions or pass any other direction which he may
deem reasonably necessary to protect or to provide
for the safety of the aggrieved person or any child of
such aggrieved person.
(3) The Magistrate may require from the respondent
to execute a bond, with or without sureties, for
preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed
to be an order under Chapter VIII of the Code of
Criminal Procedure, 1973 (2 of 1974) and shall be
dealt with accordingly.
(5) While passing an order under sub-section (1),
sub-section (2) or sub-section (3), the court may
also pass an order directing the officer-in-charge of
the nearest police station to give protection to the
aggrieved person or to assist her or the person
making an application on her behalf in the
implementation of the order.
(6) While making an order under sub-section (1),
the Magistrate may impose on the respondent
obligations relating to the discharge of rent and
other payments, having regard to the financial
needs and resources of the parties.
(7) The Magistrate may direct the officer-in-charge
of the police station in whose jurisdiction the
Magistrate has been approached to assist in the
implementation of the protection order.
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(8) The Magistrate may direct the respondent to
return to the possession of the aggrieved person
her stridhan or any other property or valuable
security to which she is entitled to.
20. Monetary reliefs.—
(1) While disposing of an application under
sub-section (1) of section 12, the Magistrate may
direct the respondent to pay monetary relief to meet
the expenses incurred and losses suffered by the
aggrieved person and any child of the aggrieved
person as a result of the domestic violence and
such relief may include but is not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage
or removal of any property from the control of the
aggrieved person; and
(d) the maintenance for the aggrieved person as
well as her children, if any, including an order under
or in addition to an order of maintenance under
section 125 of the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being
in force.
(2) The monetary relief granted under this section
shall be adequate, fair and reasonable and
consistent with the standard of living to which the
aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an
appropriate lump sum payment or monthly
payments of maintenance, as the nature and
circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for
monetary relief made under sub-section (1) to the
parties to the application and to the in-charge of the
police station within the local limits of whose
jurisdiction the respondent resides.
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(5) The respondent shall pay the monetary relief
granted to the aggrieved person within the period
specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to
make payment in terms of the order under
sub-section (1), the Magistrate may direct the
employer or a debtor of the respondent, to directly
pay to the aggrieved person or to deposit with the
court a portion of the wages or salaries or debt due
to or accrued to the credit of the respondent, which
amount may be adjusted towards the monetary
relief payable by the respondent.
26. Relief in other suits and legal proceedings.—
1. Any relief available under sections 18, 19, 20, 21
and 22 may also be sought in any legal
proceeding, before a civil court, family court or a
criminal court, affecting the aggrieved person
and the respondent whether such proceeding
was initiated before or after the commencement
of this Act.
2. Any relief referred to in sub-section (1) may be
sought for in addition to and along with any other
relief that the aggrieved person may seek in such
suit or legal proceeding before a civil or criminal
court.
3. In case any relief has been obtained by the
aggrieved person in any proceedings other than
a proceeding under this Act, she shall be bound
to inform the Magistrate of the grant of such
relief.
31. Penalty for breach of protection order by
respondent.—
(1) A breach of protection order, or of an interim
protection order, by the respondent shall be an
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offence under this Act and shall be punishable with
imprisonment of either description for a term which
may extend to one year, or with fine which may
extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as
practicable be tried by the Magistrate who had
passed the order, the breach of which has been
alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the
Magistrates may also frame charges under section
498A of the Indian Penal Code (45 of 1860) or any
other provision of that Code or the Dowry
Prohibition Act, 1961 (28 of 1961), as the case may
be, if the facts disclose the commission of an
offence under those provisions.”
18. It will be noticed that the definition of “domestic
relationship” contained in Section 2(f) is a very wide one. It is a
relationship between persons who live or have lived together in
a shared household and are related in any one of four ways –
blood, marriage or a relationship in the nature of marriage,
adoption, or family members of a joint family. A reading of
these definitions makes it clear that domestic relationships
involve persons belonging to both sexes and includes persons
related by blood or marriage. This necessarily brings within
such domestic relationships male as well as female in-laws,
quite apart from male and female members of a family related
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by blood. Equally, a shared household includes a household
which belongs to a joint family of which the respondent is a
member. As has been rightly pointed out by Ms. Arora, even
before the 2005 Act was brought into force on 26.10.2006, the
Hindu Succession Act,1956 was amended, by which Section 6
was amended, with effect from 9.9.2005, to make females
coparceners of a joint Hindu family and so have a right by birth
in the property of such joint family. This being the case, when a
member of a joint Hindu family will now include a female
coparcener as well, the restricted definition contained in Section
2(q) has necessarily to be given a relook, given that the
definition of ‘shared household’ in Section 2(s) of the Act would
include a household which may belong to a joint family of which
the respondent is a member. The aggrieved person can
therefore make, after 2006, her sister, for example, a
respondent, if the Hindu Succession Act amendment is to be
looked at. But such is not the case under Section 2(q) of the
2005 Act, as the main part of Section 2(q) continues to read
“adult male person”, while Section 2(s) would include such
female coparcener as a respondent, being a member of a joint
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family. This is one glaring anomaly which we have to address
in the course of our judgment.
19. When Section 3 of the Act defines domestic violence, it is
clear that such violence is gender neutral. It is also clear that
physical abuse, verbal abuse, emotional abuse and economic
abuse can all be by women against other women. Even sexual
abuse may, in a given fact circumstance, be by one woman on
another. Section 3, therefore, in tune with the general object of
the Act, seeks to outlaw domestic violence of any kind against a
woman, and is gender neutral. When one goes to the remedies
that the Act provides, things become even clearer. Section
17(2) makes it clear that the aggrieved person cannot be
evicted or excluded from a shared household or any part of it by
the “respondent” save in accordance with the procedure
established by law. If “respondent” is to be read as only an
adult male person, it is clear that women who evict or exclude
the aggrieved person are not within its coverage, and if that is
so, the object of the Act can very easily be defeated by an adult
male person not standing in the forefront, but putting forward
female persons who can therefore evict or exclude the
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aggrieved person from the shared household. This again is an
important indicator that the object of the Act will not be
sub-served by reading “adult male person” as “respondent”.
20. This becomes even clearer from certain other provisions
of the Act. Under Section 18(b), for example, when a protection
order is given to the aggrieved person, the “respondent” is
prohibited from aiding or abetting the commission of acts of
domestic violence. This again would not take within its ken
females who may be aiding or abetting the commission of
domestic violence, such as daughters-in-law and sisters-in-law,
and would again stultify the reach of such protection orders.
21. When we come to Section 19 and residence orders that
can be passed by the Magistrate, Section 19(1)(c) makes it
clear that the Magistrate may pass a residence order, on being
satisfied that domestic violence has taken place, and may
restrain the respondent or any of his relatives from entering
any portion of the shared household in which the aggrieved
person resides. This again is a pointer to the fact that a
residence order will be toothless unless the relatives, which
include female relatives of the respondent, are also bound by it.
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And we have seen from the definition of “respondent” that this
can only be the case when a wife or a common law wife is an
aggrieved person, and not if any other woman belonging to a
family is an aggrieved person. Therefore, in the case of a wife
or a common law wife complaining of domestic violence, the
husband’s relatives including mother-in-law and sister-in-law
can be arrayed as respondents and effective orders passed
against them. But in the case of a mother-in-law or sister-in-law
who is an aggrieved person, the respondent can only be an
“adult male person” and since his relatives are not within the
main part of the definition of respondent in Section 2(q),
residence orders passed by the Magistrate under Section 19(1)
(c) against female relatives of such person would be
unenforceable as they cannot be made parties to petitions
under the Act.
22. When we come to Section 20, it is clear that a Magistrate
may direct the respondent to pay monetary relief to the
aggrieved person, of various kinds, mentioned in the Section. If
the respondent is only to be an “adult male person”, and the
money payable has to be as a result of domestic violence,
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compensation due from a daughter-in-law to a mother-in-law
for domestic violence inflicted would not be available, whereas
in a converse case, the daughter-in-law, being a wife, would be
covered by the proviso to Section 2(q) and would consequently
be entitled to monetary relief against her husband and his
female relatives, which includes the mother-in-law.
23. When we come to Section 26 of the Act, the sweep of the
Act is such that all the innovative reliefs available under
Sections 18 to 22 may also be sought in any legal proceeding
before a civil court, family court or criminal court affecting the
aggrieved person and the respondent. The proceeding in the
civil court, family court or criminal court may well include female
members of a family, and reliefs sought in those legal
proceedings would not be restricted by the definition of
“respondent” in the 2005 Act. Thus, an invidious discrimination
will result, depending upon whether the aggrieved person
chooses to institute proceedings under the 2005 Act or chooses
to add to the reliefs available in either a pending proceeding or
a later proceeding in a civil court, family court or criminal court.
It is clear that there is no intelligible differentia between a
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proceeding initiated under the 2005 Act and proceeding initiated
in other fora under other Acts, in which the self-same reliefs
grantable under this Act, which are restricted to an adult male
person, are grantable by the other fora also against female
members of a family. This anomaly again makes it clear that
the definition of “respondent” in Section 2(q) is not based on
any intelligible differentia having any rational relation to the
object sought to be achieved by the 2005 Act. The restriction of
such person to being an adult male alone is obviously not a
differentia which would be in sync with the object sought to be
achieved under the 2005 Act, but would in fact be contrary to it.
24. Also, the expression “adult” would have the same effect of
stultifying orders that can be passed under the aforesaid
sections. It is not difficult to conceive of a non-adult 16 or 17
year old member of a household who can aid or abet the
commission of acts of domestic violence, or who can evict or
help in evicting or excluding from a shared household an
aggrieved person. Also, a residence order which may be
passed under Section 19(1)(c) can get stultified if a 16 or
17 year old relative enters the portion of the shared household
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in which the aggrieved person resides after a restraint
order is passed against the respondent and any of his
adult relatives. Examples can be multiplied, all of which would
only lead to the conclusion that even the expression “adult” in
the main part is Section 2(q) is restrictive of the object sought to
be achieved by the kinds of orders that can be passed under
the Act and must also be, therefore, struck down, as this word
contains the same discriminatory vice that is found with its
companion expression “male”.
25. Shri Raval has cited a couple of judgments dealing with
the provisions of the 2005 Act. For the sake of completeness,
we may refer to two of them.
26. In Sandhya Manoj Wankhade v. Manoj Bhimrao
Wankhade, (2011) 3 SCC 650, this Court, in a petition by a
married woman against her husband and his relatives,
construed the proviso to Section 2(q) of the 2005 Act. This
Court held:
“No restrictive meaning has been given to the
expression “relative”, nor has the said expression
been specifically defined in the Domestic Violence
Act, 2005, to make it specific to males only. In such
circumstances, it is clear that the legislature never
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intended to exclude female relatives of the husband
or male partner from the ambit of a complaint that
can be made under the provisions of the Domestic
Violence Act, 2005.” [Para 16]
27. In Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, the
appellant entered into a live-in relationship with the respondent
knowing that he was a married person. A question arose before
this Court as to whether the appellant could be said to be in a
relationship in the nature of marriage. Negativing this
contention, this Court held:
“The appellant, admittedly, entered into a live-in
relationship with the respondent knowing that he
was a married person, with wife and two children,
hence, the generic proposition laid down by the
Privy Council in Andrahennedige Dinohamy v.
Wijetunge Liyanapatabendige Balahamy [(1928) 27
LW 678 : AIR 1927 PC 185] , that where a man and
a woman are proved to have lived together as
husband and wife, the law presumes that they are
living together in consequence of a valid marriage
will not apply and, hence, the relationship between
the appellant and the respondent was not a
relationship in the nature of a marriage, and the
status of the appellant was that of a concubine. A
concubine cannot maintain a relationship in the
nature of marriage because such a relationship will
not have exclusivity and will not be monogamous in
character. Reference may also be made to the
judgments of this Court in Badri Prasadv. Director of
Consolidation [(1978) 3 SCC 527] and Tulsa v.
Durghatiya [(2008) 4 SCC 520] .
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We may note that, in the instant case, there is no
necessity to rebut the presumption, since the
appellant was aware that the respondent was a
married person even before the commencement of
their relationship, hence the status of the appellant
is that of a concubine or a mistress, who cannot
enter into relationship in the nature of a marriage.
The long-standing relationship as a concubine,
though not a relationship in the nature of a
marriage, of course, may at times, deserves
protection because that woman might not be
financially independent, but we are afraid that the
DV Act does not take care of such relationships
which may perhaps call for an amendment of the
definition of Section 2(f) of the DV Act, which is
restrictive and exhaustive.
Parliament has to ponder over these issues, bring
in proper legislation or make a proper amendment
of the Act, so that women and the children, born out
of such kinds of relationships be protected, though
those types of relationship might not be a
relationship in the nature of a marriage.” [Paras 57,
59 & 64]
28. It may be noted that in Badshah v. Urmila Badshah
Godse & Anr., (2014) 1 SCC 188, this Court held that the
expression “wife” in Section 125 of the Criminal Procedure
Code, includes a woman who had been duped into marrying a
man who was already married. In so holding, this Court held:
“Thus, while interpreting a statute the court may not
only take into consideration the purpose for which
the statute was enacted, but also the mischief it
seeks to suppress. It is this mischief rule, first
propounded in Heydon case [(1584) 3 Co Rep 7a :
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76 ER 637] which became the historical source of
purposive interpretation. The court would also
invoke the legal maxim construction of ut res magis
valeat quam pereatin such cases i.e. where
alternative constructions are possible the court must
give effect to that which will be responsible for the
smooth working of the system for which the statute
has been enacted rather than one which will put a
road block in its way. If the choice is between two
interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation
should be avoided. We should avoid a construction
which would reduce the legislation to futility and
should accept the bolder construction based on the
view that Parliament would legislate only for the
purpose of bringing about an effective result. If this
interpretation is not accepted, it would amount to
giving a premium to the husband for defrauding the
wife. Therefore, at least for the purpose of claiming
maintenance under Section 125 Cr.P.C, such a
woman is to be treated as the legally wedded
wife.”[Para 20]
29. We will now deal with some of the cases cited before us
by both the learned senior advocates on Article 14, reading
down, and the severability principle in constitutional law.
30. Article 14 is in two parts. The expression “equality before
law” is borrowed from the Irish Constitution, which in turn is
borrowed from English law, and has been described in State of
U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14, as the negative
aspect of equality. The “equal protection of the laws” in
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Article 14 has been borrowed from the 14th Amendment to the
U.S. Constitution and has been described in the same
judgment as the positive aspect of equality namely the
protection of equal laws. Subba Rao, J. stated:
“This subject has been so frequently and recently
before this court as not to require an extensive
consideration. The doctrine of equality may be
briefly stated as follows: All persons are equal
before the law is fundamental of every civilised
constitution. Equality before law is a negative
concept; equal protection of laws is a positive one.
The former declares that every one is equal before
law, that no one can claim special privileges and
that all classes are equally subjected to the ordinary
law of the land; the latter postulates an equal
protection of all alike in the same situation and
under like circumstances. No discrimination can be
made either in the privileges conferred or in the
liabilities imposed. But these propositions conceived
in the interests of the public, if logically stretched too
far, may not achieve the high purpose behind them.
In a society of unequal basic structure, it is well nigh
impossible to make laws suitable in their application
to all the persons alike. So, a reasonable
classification is not only permitted but is necessary
if society should progress. But such a classification
cannot be arbitrary but must be based upon
differences pertinent to the subject in respect of and
the purpose for which it is made.” [at page 34]
31. In Lachhman Dass v. State of Punjab, (1963) 2 SCR
353, Subba Rao, J. warned that over emphasis on the doctrine
of classification or an anxious and sustained attempt to
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discover some basis for classification may gradually and
imperceptibly deprive Article 14 of its glorious content. That
process would inevitably end in substituting the doctrine of
classification for the doctrine of equality. This admonition seems
to have come true in the present case, as the classification of
“adult male person” clearly subverts the doctrine of equality, by
restricting the reach of a social beneficial statute meant to
protect women against all forms of domestic violence.
32. We have also been referred to D.S. Nakara v. Union of
India, (1983) 1 SCC 305. This judgment concerned itself with
pension payable to Government servants. An office
Memorandum of the Government of India dated 25.5.1979
restricted such pension payable only to persons who had retied
prior to a specific date. In holding the date discriminatory and
arbitrary and striking it down, this Court went into the doctrine of
classification, and cited from Re: Special Courts Bill, (1979) 2
SCR 476 and Maneka Gandhi v. Union of India, (1978) 2
SCR 621, and went on to hold that the burden to affirmatively
satisfy the court that the twin tests of intelligible differentia
having a rational relation to the object sought to be achieved by
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the Act would lie on the State, once it has been established that
a particular piece of legislation is on its face unequal. The
Court further went on to hold that the petitioners challenged
only that part of the scheme by which benefits were admissible
to those who retired from service after a certain date. The
challenge, it was made clear by the Court, was not to the
validity of the Scheme, which was wholly acceptable to the
petitioners, but only to that part of it which restricted the number
of persons from availing of its benefit. The Court went on to
hold:
“If it appears to be undisputable, as it does to us
that the pensioners for the purpose of pension
benefits form a class, would its upward revision
permit a homogeneous class to be divided by
arbitrarily fixing an eligibility criteria unrelated to
purpose of revision, and would such classification
be founded on some rational principle? The
classification has to be based, as is well settled, on
some rational principle and the rational principle
must have nexus to the objects sought to be
achieved. We have set out the objects underlying
the payment of pension. If the State considered it
necessary to liberalise the pension scheme, we find
no rational principle behind it for granting these
benefits only to those who retired subsequent to
that date simultaneously denying the same to those
who retired prior to that date. If the liberalisation
was considered necessary for augmenting social
security in old age to government servants then
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those who, retired earlier cannot be worst off than
those who retire later. Therefore, this division which
classified pensioners into two classes is not based
on any rational principle and if the rational principle
is the one of dividing pensioners with a view to
giving something more to persons otherwise equally
placed, it would be discriminatory. To illustrate, take
two persons, one retired just a day prior and
another a day just succeeding the specified date.
Both were in the same pay bracket, the average
emolument was the same and both had put in equal
number of years of service. How does a fortuitous
circumstance of retiring a day earlier or a day later
will permit totally unequal treatment in the matter of
pension? One retiring a day earlier will have to be
subject to ceiling of Rs 8100 p.a. and average
emolument to be worked out on 36 months’ salary
while the other will have a ceiling of Rs 12,000 p.a.
and average emolument will be computed on the
basis of last 10 months’ average. The artificial
division stares into face and is unrelated to any
principle and whatever principle, if there be any, has
absolutely no nexus to the objects sought to be
achieved by liberalising the pension scheme. In fact
this arbitrary division has not only no nexus to the
liberalised pension scheme but it is
counter-productive and runs counter to the whole
gamut of pension scheme. The equal treatment
guaranteed in Article 14 is wholly violated inasmuch
as the pension rules being statutory in character,
since the specified date, the rules accord differential
and discriminatory treatment to equals in the matter
of commutation of pension. A 48 hours’ difference in
matter of retirement would have a traumatic effect.
Division is thus both arbitrary and unprincipled.
Therefore, the classification does not stand the test
of Article 14.” [para 42]
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33. We were also referred to Rattan Arya and others v.
State of Tamil Nadu and another, (1986) 3 SCC 385, and in
particular, to the passage reading thus:-
“We may now turn to S.30(ii) which reads as
follows:
“Nothing contained in this Act shall apply to any
residential building or part thereof occupied by
anyone tenant if the monthly rent paid by him in
respect of that building or part exceeds four
hundred rupees.”
By one stroke, this provision denies the benefits
conferred by the Act generally on all tenants to
tenants of residential buildings fetching a rent in
excess of four hundred rupees. As a result of this
provision, while the tenant of a non-residential
building is protected, whether the rent is Rs. 50, Rs.
500 or Rs. 5000 per month, a tenant of a residential
building is protected if the rent is Rs. 50, but not if it
is Rs. 500 or Rs. 5000 per month. Does it mean that
the tenant of a residential building paying a rent of
Rs. 500 is better able to protect himself than the
tenant of a non-residential building paying a rent of
Rs. 5000 per month? Does it mean that the tenant
of a residential building who pays a rent of Rs. 500
per month is not in need of any statutory protection?
Is there any basis for the distinction between the
tenant of a residential building and the tenant of a
non-residential building and that based on the rent
paid by the respective tenants? Is there any
justification at all for picking out the class of tenants
of residential buildings paying a rent of more than
four hundred rupees per month to deny them
the |rights conferred generally on all tenants of
buildings residential or non-residential by the Act?
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Neither from the Preamble of the Act nor from the
provisions of the Act has it been possible for us
even to discern any basis for the classification made
by S.30(ii) of the Act.”(Para 3)
34. In Subramanian Swamy v. CBI, (2014) 8 SCC 682, a
Constitution Bench of this Court struck down Section 6A of the
Delhi Police Special Establishment Act on the ground that it
made an invidious distinction between employees of the Central
Government of the level of Joint Secretary and above as
against other Government servants. This Court, after
discussing various judgments dealing with the principle of
discrimination (when a classification does not disclose an
intelligible differentia in relation to the object sought to be
achieved by the Act) from para 38 onwards, ultimately held that
the aforesaid classification defeats the purpose of finding prima
facie truth in the allegations of graft and corruption against
public servants generally, which is the object for which the
Prevention of Corruption Act, 1988 was enacted. In paras 59
and 60 this Court held as follows:
“It seems to us that classification which is made in
Section 6-A on the basis of status in government
service is not permissible under Article 14 as it
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defeats the purpose of finding prima facie truth into
the allegations of graft, which amount to an offence
under the PC Act, 1988. Can there be sound
differentiation between corrupt public servants
based on their status? Surely not, because
irrespective of their status or position, corrupt public
servants are corrupters of public power. The corrupt
public servants, whether high or low, are birds of the
same feather and must be confronted with the
process of investigation and inquiry equally. Based
on the position or status in service, no distinction
can be made between public servants against
whom there are allegations amounting to an offence
under the PC Act, 1988.
Corruption is an enemy of the nation and tracking
down corrupt public servants and punishing such
persons is a necessary mandate of the PC Act,
1988. It is difficult to justify the classification which
has been made in Section 6-A because the goal of
law in the PC Act, 1988 is to meet corruption cases
with a very strong hand and all public servants are
warned through such a legislative measure that
corrupt public servants have to face very serious
consequences. In the words of Mathew, J. in Shri
Ambica Mills Ltd. [State of Gujarat v. Shri Ambica
Mills Ltd., (1974) 4 SCC 656 : 1974 SCC (L&S)
381 : (1974) 3 SCR 760] : (SCC p. 675, paras
53-54)
“53. The equal protection of the laws is a pledge
of the protection of equal laws. But laws may
classify. …
54. A reasonable classification is one which
includes all who are similarly situated and none who
are not.”
Mathew, J., while explaining the meaning of the
words, “similarly situated” stated that we must look
beyond the classification to the purpose of the law.
The purpose of a law may be either the elimination
of a public mischief or the achievement of some
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positive public good. The classification made in
Section 6-A neither eliminates public mischief nor
achieves some positive public good. On the other
hand, it advances public mischief and protects the
crimedoer. The provision thwarts an independent,
unhampered, unbiased, efficient and fearless
inquiry/investigation to track down the corrupt public
servants.” [paras 59 and 60]
35. In a recent judgment, reported as Union of India v. N.S.
Ratnam, (2015) 10 SCC 681, this Court while dealing with an
exemption notification under the Central Excise Act stated the
law thus:-
“We are conscious of the principle that the
difference which will warrant a reasonable
classification need not be great. However, it has to
be shown that the difference is real and substantial
and there must be some just and reasonable
relation to the object of legislation or notification.
Classification having regard to microscopic
differences is not good. To borrow the phrase from
the judgment in Roop Chand Adlakha v. DDA [1989
Supp (1) SCC 116 : 1989 SCC (L&S) 235 : (1989) 9
ATC 639] : “To overdo classification is to undo
equality.” [para 18]
36. A conspectus of these judgments also leads to the result
that the microscopic difference between male and female, adult
and non adult, regard being had to the object sought to be
achieved by the 2005 Act, is neither real or substantial nor does
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it have any rational relation to the object of the legislation. In
fact, as per the principle settled in the Subramanian Swamy
judgment, the words “adult male person” are contrary to the
object of affording protection to women who have suffered from
domestic violence “of any kind”. We, therefore, strike down the
words “adult male” before the word “person” in Section 2(q), as
these words discriminate between persons similarly situate, and
far from being in tune with, are contrary to the object sought to
be achieved by the 2005 Act.
Having struck down these two words from the definition of
“respondent” in Section 2(q), the next question that arises is
whether the rest of the Act can be implemented without the
aforesaid two words. This brings us to the doctrine of
severability – a doctrine well-known in constitutional law and
propounded for the first time in the celebrated R.M.D.
Chamarbaugwalla v. Union of India, 1957 SCR 930. This
judgment has been applied in many cases. It is not necessary
to refer to the plethora of case law on the application of this
judgment, except to refer to one or two judgments directly on
point.
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37. An early application of the aforesaid principle is contained
in Corporation of Calcutta v. Calcutta Tramways Co. Ltd.,
[1964] 5 S.C.R. 25, in which a portion of Section 437(i)(b) of the
Calcutta Municipal Act, 1951 was struck down as being a
procedural provision which was an unreasonable restriction
within the meaning of Article 19(6) of the Constitution.
Chamarbaugwalla’s case was applied, and it was ultimately
held that only the portion in parenthesis could be struck down
with the rest of the Act continuing to apply.
38. Similarly, in Motor General Traders v. State of A.P.,
(1984) 1 SCC 222, Section 32(b) of the Andhra Pradesh
Buildings (Lease, Rent & Eviction) Control Act, 1960 which
exempted all buildings constructed on and after 26.8.1957, was
struck down as being violative of Article 14 of the Constitution.
This judgment, after applying Chamarbaugwalla’s case in para
27, and D.S. Nakara’s case in para 28, stated the law thus:-
“On a careful consideration of the above question in
the light of the above principles we are of the view
that the striking down of clause (b) of Section 32 of
the Act does not in any way affect the rest of the
provisions of the Act. The said clause is not so
inextricably bound up with the rest of the Act as to
make the rest of the Act unworkable after the said
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clause is struck down. We are also of the view that
the Legislature would have still enacted the Act in
the place of the Madras Buildings (Lease and Rent
Control) Act, 1949 and the Hyderabad House (Rent,
Eviction and Lease) Act, 1954 which were in force in
the two areas comprised in the State of Andhra
Pradesh and it could not have been its intention to
deny the beneficial effect of those laws to the
people residing in Andhra Pradesh on its formation.
After the Second World War owing to acute
shortage of urban housing accommodation, rent
control laws which were brought into force in
different parts of India as pieces of temporary
legislation gradually became almost permanent
statutes. Having regard to the history of the
legislation under review, we are of the view that the
Act has to be sustained even after striking down
clause (b) of Section 32 of the Act. The effect of
striking down the impugned provision would be that
all buildings except those falling under clause (a) of
Section 32 or exempted under Section 26 of the Act
in the areas where the Act is in force will be
governed by the Act irrespective of the date of their
construction.” [para 29]
39. In Satyawati Sharma v. Union of India, (2008) 5 SCC
287, Section 14(1)(e) of the Delhi Rent Control Act was struck
down in part, inasmuch as it made an invidious distinction
between bonafide requirement of two kinds of landlords, the
said ground being available for residential premises only and
not non residential premises. An argument was made that if the
Section was struck down only in part, nothing more would
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survive thereafter. This was negatived by this Court in the
following words:
“In view of the above discussion, we hold that
Section 14(1)(e) of the 1958 Act is violative of the
doctrine of equality embodied in Article 14 of the
Constitution of India insofar as it discriminates
between the premises let for residential and
non-residential purposes when the same are
required bona fide by the landlord for occupation for
himself or for any member of his family dependent
on him and restricts the latter’s right to seek eviction
of the tenant from the premises let for residential
purposes only.
However, the aforesaid declaration should not be
misunderstood as total striking down of Section
14(1)(e) of the 1958 Act because it is neither the
pleaded case of the parties nor the learned counsel
argued that Section 14(1)(e) is unconstitutional in its
entirety and we feel that ends of justice will be met
by striking down the discriminatory portion of
Section 14(1)(e) so that the remaining part thereof
may read as under:
“14. (1)(e) that the premises let for residential
purposes are required bona fide by the landlord for
occupation as a residence for himself or for any
member of his family dependent on him, if he is the
owner thereof, or for any person for whose benefit
the premises are held and that the landlord or such
person has no other reasonably suitable
accommodation;
***”
While adopting this course, we have kept in view
well-recognised rule that if the offending portion of a
statute can be severed without doing violence to the
remaining part thereof, then such a course is
permissible—R.M.D. Chamarbaugwalla v. Union of
India [AIR 1957 SC 628] and Lt. Col. Sawai
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Bhawani Singh v. State of Rajasthan[(1996) 3 SCC
105] .
As a sequel to the above, the Explanation
appearing below Section 14(1)(e) of the 1958 Act
will have to be treated as redundant.” [paras 41 –
43]
40. An application of the aforesaid severability principle would
make it clear that having struck down the expression “adult
male” in Section 2(q) of the 2005 Act, the rest of the Act is left
intact and can be enforced to achieve the object of the
legislation without the offending words. Under Section 2(q) of
the 2005 Act, while defining ‘respondent’, a proviso is provided
only to carve out an exception to a situation of “respondent” not
being an adult male. Once we strike down ‘adult male’, the
proviso has no independent existence, having been rendered
otiose.
41. Interestingly the Protection from Domestic Violence Bill,
2002 was first introduced in the Lok Sabha in 2002. This Bill
contained the definition of “aggrieved person”, “relative”, and
“respondent” as follows:
“2. Definitions.
In this Act, unless the context otherwise requires,-
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a) “aggrieved person” means any woman who is
or has been a relative of the respondent and who
alleges to have been subjected to acts of domestic
violence by the respondent;”
xxxx
i) “relative” includes any person related by
blood, marriage or adoption and living with the
respondent;
j) “respondent’ means any person who is or has
been a relative of the aggrieved person and against
whom the aggrieved person has sought monetary
relief or has made an application for protection
order to the Magistrate or to the Protection Officer,
as the case may be; and”
42. We were given to understand that the aforesaid Bill
lapsed, after which the present Bill was introduced in the
Lok Sabha on 22.8.2005, and was then passed by both
Houses. It is interesting to note that the earlier 2002 Bill
defined “respondent” as meaning “any person who is…..”
without the addition of the words “adult male”, being in
consonance with the object sought to be achieved by the Bill,
which was pari materia with the object sought to be achieved by
the present Act. We also find that, in another Act which seeks
to protect women in another sphere, namely, the Sexual
Harassment of Women at Workplace (Prevention, Prohibition
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and Redressal) Act, 2013, “respondent” is defined in Section
2(m) thereof as meaning a person against whom the aggrieved
woman has made a complaint under Section 9. Here again it
will be noticed that the prefix “adult male” is conspicuous by its
absence. The 2002 Bill and the 2013 Act are in tune with the
object sought to be achieved by statutes which are meant to
protect women in various spheres of life. We have adverted to
the aforesaid legislation only to show that Parliament itself has
thought it reasonable to widen the scope of the expression
“respondent” in the Act of 2013 so as to be in tune with the
object sought to be achieved by such legislations.
43. Having struck down a portion of Section 2(q) on the
ground that it is violative of Article 14 of the Constitution of
India, we do not think it is necessary to go into the case law
cited by both sides on literal versus purposive construction,
construction of penal statutes, and the correct construction of a
proviso to a Section. None of this becomes necessary in view
of our finding above.
44. However, it still remains to deal with the impugned
judgment. We have set out the manner in which the impugned
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judgment has purported to read down Section 2(q) of the
impugned Act. The doctrine of reading down in constitutional
adjudication is well settled and has been reiterated from time to
time in several judgments, the most recent of which is
contained in Cellular Operators Association of India v. TRAI,
(2016) 7 SCC 703. Dealing with the doctrine of reading down,
this Court held:-
“But it was said that the aforesaid Regulation
should be read down to mean that it would apply
only when the fault is that of the service provider.
We are afraid that such a course is not open to us in
law, for it is well settled that the doctrine of reading
down would apply only when general words used in
a statute or regulation can be confined in a
particular manner so as not to infringe a
constitutional right. This was best exemplified in one
of the earliest judgments dealing with the doctrine of
reading down, namely, the judgment of the Federal
Court in Hindu Women’s Rights to Property Act,
1937, In re [Hindu Women’s Rights to Property Act,
1937, In re, 1941 SCC OnLine FC 3 : AIR 1941 FC
72] . In that judgment, the word “property” in Section
3 of the Hindu Women’s Rights to Property Act was
read down so as not to include agricultural land,
which would be outside the Central Legislature’s
powers under the Government of India Act, 1935.
This is done because it is presumed that the
legislature did not intend to transgress constitutional
limitations. While so reading down the word
“property”, the Federal Court held: (SCC OnLine
FC)
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“… If the restriction of the general words to
purposes within the power of the legislature would
be to leave an Act with nothing or next to nothing in
it, or an Act different in kind, and not merely in
degree, from an Act in which the general words
were given the wider meaning, then it is plain that
the Act as a whole must be held invalid, because in
such circumstances it is impossible to assert with
any confidence that the legislature intended the
general words which it has used to be construed
only in the narrower sense: Owners of SS
Kalibia v.Wilson [Owners of SS Kalibia v. Wilson,
(1910) 11 CLR 689 (Aust)] , Vacuum Oil Co. Pty.
Ltd. v. Queensland [Vacuum Oil Co. Pty.
Ltd. v. Queensland, (1934) 51 CLR 677
(Aust)] , R. v. Commonwealth Court of Conciliation
and Arbitration, ex p Whybrow &
Co. [R. v. Commonwealth Court of Conciliation and
Arbitration, ex p Whybrow & Co., (1910) 11 CLR 1
(Aust)] and British Imperial Oil Co. Ltd. v.Federal
Commr. of Taxation [British Imperial Oil Co.
Ltd. v. Federal Commr. of Taxation, (1925) 35 CLR
422 (Aust)] .” (emphasis supplied)
This judgment was followed by a Constitution Bench
of this Court in DTC v.Mazdoor
Congress [DTC v. Mazdoor Congress, 1991 Supp
(1) SCC 600 : 1991 SCC (L&S) 1213] . In that case,
a question arose as to whether a particular
regulation which conferred power on an authority to
terminate the services of a permanent and
confirmed employee by issuing a notice terminating
his services, or by making payment in lieu of such
notice without assigning any reasons and without
any opportunity of hearing to the employee, could
be said to be violative of the appellants’
fundamental rights. Four of the learned Judges who
heard the case, the Chief Justice alone dissenting
on this aspect, decided that the regulation cannot
be read down, and must, therefore, be held to be
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unconstitutional. In the lead judgment on this aspect
by Sawant, J., this Court stated: (SCC pp. 728-29,
para 255)
“255. It is thus clear that the doctrine of
reading down or of recasting the statute can be
applied in limited situations. It is essentially used,
firstly, for saving a statute from being struck down
on account of its unconstitutionality. It is an
extension of the principle that when two
interpretations are possible—one rendering it
constitutional and the other making it
unconstitutional, the former should be preferred.
The unconstitutionality may spring from either the
incompetence of the legislature to enact the statute
or from its violation of any of the provisions of the
Constitution. The second situation which summons
its aid is where the provisions of the statute are
vague and ambiguous and it is possible to gather
the intention of the legislature from the object of the
statute, the context in which the provision occurs
and the purpose for which it is made. However,
when the provision is cast in a definite and
unambiguous language and its intention is clear, it
is not permissible either to mend or bend it even if
such recasting is in accord with good reason and
conscience. In such circumstances, it is not possible
for the court to remake the statute. Its only duty is to
strike it down and leave it to the legislature if it so
desires, to amend it. What is further, if the remaking
of the statute by the courts is to lead to its distortion
that course is to be scrupulously avoided. One of
the situations further where the doctrine can never
be called into play is where the statute requires
extensive additions and deletions. Not only it is no
part of the court’s duty to undertake such exercise,
but it is beyond its jurisdiction to do so. (emphasis
supplied)” [paras 50 and 51]
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45. We may add that apart from not being able to mend or
bend a provision, this Court has earlier held that “reading up” a
statutory provision is equally not permissible. In B.R. Kapur v.
State of T.N., (2001) 7 SCC 231, this Court held:
“Section 8(4) opens with the words “notwithstanding
anything in sub-section (1), sub-section (2) or
sub-section (3)”, and it applies only to sitting
members of Legislatures. There is no challenge to it
on the basis that it violates Article 14. If there were,
it might be tenable to contend that legislators stand
in a class apart from non-legislators, but we need to
express no final opinion. In any case, if it were
found to be violative of Article 14, it would be struck
down in its entirety. There would be, and is no
question of so reading it that its provisions apply to
all, legislators and non-legislators, and that,
therefore, in all cases the disqualification must await
affirmation of the conviction and sentence by a final
court. That would be “reading up” the provision, not
“reading down”, and that is not known to the law.”
[para 39]
46. We, therefore, set aside the impugned judgment of the
Bombay High Court and declare that the words “adult male” in
Section 2(q) of the 2005 Act will stand deleted since these
words do not square with Article 14 of the Constitution of India.
Consequently, the proviso to Section 2(q), being rendered
otiose, also stands deleted. We may only add that the
impugned judgment has ultimately held, in paragraph 27, that
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the two complaints of 2010, in which the three female
respondents were discharged finally, were purported to be
revived, despite there being no prayer in Writ Petition
No.300/2013 for the same. When this was pointed out, Ms.
Meenakshi Arora very fairly stated that she would not be
pursuing those complaints, and would be content to have a
declaration from this Court as to the constitutional validity of
Section 2(q) of the 2005 Act. We, therefore, record the
statement of the learned counsel, in which case it becomes
clear that nothing survives in the aforesaid complaints of
October, 2010. With this additional observation, this appeal
stands disposed of.
……………………J.
(Kurian Joseph)
……………………J.
New Delhi; (R.F. Nariman)
October 6, 2016.
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