Recent Supreme Court Judgment on Child Custody Case

Purvi Mukesh Gada Vs. Mukesh Popatlal Gada & ANR.

[Criminal Appeal No.1553 of 2017 arising out of SLP (CRL.) No. 1867 of 2016]


1. It is an unfortunate case where the parties, who are wife and husband, are having a bitter and acrimonious fight over the custody of their children. Such custody battles are always regrettable, not only for the spouses who resort to this kind of litigation, which is the offshoot of matrimonial discord and results in their separation from each other, but also for their child/children who become the subject matter of this kind of dispute. Failure of marriage generally leads to disputes of varied nature, either in the form of divorce or enforcement of conjugal rights or maintenance etc. and even criminal cases in the form of proceedings under Section 498A of the Code of Criminal Procedure, 1973 and so on.

However, in those cases where their togetherness as spouses had resulted in procreation of children, the war is extended by laying respective claims on the custody of those children as well. These minor children, for their proper upbringing, need the company of both the parents – mother as well as the father, for financial reasons, security reasons, psychological reasons, etc. They need the love of both their parents. Not only separation of their parents from each other deprives these children 24/7 company of both the parents, when it results in legal battle of custody in the courts, the situation becomes more traumatic for these children because of various obvious reasons. That is why such cases which seriously impact these children are the most unfortunate.

2. In the instant case, marriage between the parties as per Hindu rites and ceremonies was solemnised way back in November 1997. They lived together for number of years. Their first child, a boy named Taney, was born in the year 2000 and second child, a daughter named Varenya, was born in the year 2004. The appellant herein left the matrimonial home on February 18, 2013.

Thus, they were together for more than fifteen years when the desertion took place, though as per the allegations of the appellant she had suffered mental and physical torture at the hands of the respondent since the beginning of the marriage, but for the sake and well being of the children and also because of her financial dependency on the respondent she continued to live with the respondent. These allegations of maltreatment of the appellant are denied by the respondent. In any case, that is not the crux of the matter.

3. It so happened that when the appellant left her matrimonial home in Pune and came to her parents house in Mumbai, children remained in the custody of the respondent. Tanay was not at home as he was studying in a boarding school at Coimbatore at that time. Insofar as Varenya is concerned, the allegation of the appellant is that it is the respondent who did not allow the appellant to take her along to Mumbai. Some attempts were made thereafter for settlement of their disputes, which did not bear any results.

On September 18, 2014, the appellant filed a domestic violence case in the 38th Court of Additional ACMM, Ballard Estate, Mumbai on the ground of gross mental and physical cruelty, including verbal and physical abuse and occult practices. Three months after filing the said case, the appellant (arising out of SLP (Crl.) No. 1867 of 2016) moved an application therein praying for access to her minor children during Christmas vacation, which was allowed to be availed of in the respondent’s house in Pune.

4. In February 2015, Varenya was also admitted in a boarding school by the respondent. The appellant, at that juncture, moved an application for interim custody of the minor children as well as for maintenance. However, custody was not allowed on the ground that children were studying and it would not be proper to give custody during the midst of their academic year. At the same time, interim maintenance @ Rs.30,000/- per month was directed to be given to the appellant. In May 2015, when the summer vacations were approaching, the appellant filed an application praying for custody of children for half of the vacations.

Though this application was still pending and no orders passed thereon, the respondent himself handed over the custody of the children to the appellant on June 17, 2015. There are divergent stands of the parties behind such a move on the part of respondent in voluntarily giving custody of the children to the appellant. As per the respondent, even when there was no order of the Court, as a goodwill gesture, he gave custody of the children to the mother for a period of three days with clear understanding that custody of the children would be handed back to the appellant after three days.

On the other hand, the appellant claims that the respondent entrusted the children to her even when without any order of the Court, compelled by the circumstance inasmuch as Tanay had miserably failed in his Grade IX examinations while studying in the boarding school at Coimbatore and the respondent wanted the appellant to give coaching to him so that he could reappear and pass the examination in order to get promoted to Grade X without wasting an academic year.

5. The children were not given back to the respondent after the expiry of three days. Here again both the parties have their own version. According to the appellant, the children themselves refused to go back to the respondent. On the other hand, the respondent maintains that it is the appellant whose intentions became bad and, thereby, she refused to handover the custody of the children to him. Be that as it may, the respondent filed an application before the Court of Additional ACMM for restoration of custody of the children. The learned Additional ACMM called both the children in his Chambers and interacted with them.

Thereafter, he passed the orders dated July 01, 2015 vide which custody of the children was given to the appellant, rejecting the for restoration of their custody to the respondent. Appeal was filed against this order in the Sessions Court, which was also dismissed vide judgment dated August 06, 2016. Orders of the learned ACMM dated July 01, 2015 and that of the Sessions Court dated August 06, 2015, were challenged by the respondent in the form of writ petition filed in the High Court of Bombay. Disposing of this writ petition vide judgment dated February 17, 2016, the High Court has directed that custody of the children be restored with the respondent. It is this order which is the subject matter of challenge in the instant appeal.

6. Before stating the reasons which prevailed with the High Court in directing the custody of the children to the respondent, it is imperative to take note of certain proceedings before the High Court during the pendency of the writ petition.

7. Vide order dated January 29, 2015, the High Court directed day access on September 21 and 24, 2015. Again vide order dated November 11, 2015, overnight access for the coming weekend was accorded to the respondent. Identical overnight access was given by the High Court vide order dated November 23, 2015. However, the respondent could not avail the benefit of these orders. According to the respondent, the appellant had violated these orders, whereas the appellant has pleaded that on September 24, 2015 the respondent himself did not come to have the access of the children and insofar as order granting overnight access during weekends is concerned, the explanation of the appellant is that it is the children who refused to go to their father as they were petrified and, therefore, themselves took such a decision.

8. On December 11, 2015, the respondent was given seven days access during Christmas vacation with Counsellor’s help. For carrying out this order, the trial court called the children on December 23, 2015 where the respondent was also called. Again, as per the appellant’s version, the children, after remaining with the respondent for forty five minutes alone, ultimately told him that they did not wish to go with him. The respondent was to come to pick the children on December 25, 2015 and as per the appellant, he did not come to pick the children.

9. The respondent maintained that on all the aforesaid occasions it is the appellant who had refused to handover the custody to him and had, thus, violated the orders of the High Court. Accordingly, he filed an affidavit in the High Court for initiating contempt proceedings against the appellant. The appellant filed reply affidavit thereto refuting the allegations. Matter was finally heard and culminated in the judgment dated February 17, 2016.

10. With this, we come to the reasons which have weighed with the High Court in directing the custody of the children to be given to their father, namely, the respondent. After perusing the impugned judgment, these are summarised as below:

(i) Orders dated December 28, 2014 and March 04, 2015 were passed by the Additional ACMM, confirming the custody of the children with the respondent-father inasmuch as by these orders prayer for giving interim custody of children to the appellant-wife was rejected. Instead, the appellant was only given limited access during vacation to meet the children in the school at Pune whenever she desired.

(ii) Even though the appellant had moved application dated May 27, 2015 seeking access to the children during vacation, which was from June 13, 2015 to August 09, 2015, and no orders were passed in the said application, as per the respondent, as a humanitarian gesture and without there being any legal obligation or court directions, he went to the appellant’s residence at Mumbai on June 17, 2015 and left the children with the appellant with a clear understanding that he would pick them up by June 19, 2015.

The High Court has noted the stand of the appellant as well, but has mentioned that as per the respondent’s case when he went to take the custody of the children on June 19, 2015, the appellant refused to restore the custody. The High Court has given weightage to the fact that on June 17, 2015, the respondent had placed the children in the custody of the appellant even when there was no court order or legal obligation.

(iii) The High Court wanted to interact with the children in order to ascertain their wishes as well as to determine as to which course of action is appropriate in the welfare of the children. However, before doing so, the High Court deemed it appropriate to grant weekend access to the respondent. For this, directions were given (which have already been taken note of). As per the High Court, prima facie it appeared that the appellant was responsible for non-compliance of those orders and even if it is to be believed that the children did not show their unwillingness to go to their father, it indicates the extent of influence exerted by the mother upon her minor children.

(iv) As per the High Court, in the face of two detailed orders dated December 28, 2014 and March 04, 2015 passed by the Additional ACMM declining custody of minor children to the appellant and allowing the respondent to retain their custody, there was no reason not to restore the custody to the respondent on June 19, 2015. It has observed that subsequent orders of Additional ACMM declining to give the custody, which is upheld by the Sessions Court, are without application of mind.

(v) The High Court has discussed the law on custody of children and explained the ‘welfare principle’, which is the paramount consideration while deciding custody matters is to see where the welfare of children lies. Applying this principle, the direction is given to restore the custody of the children to the respondent after the end of academic term in April or May 2016.

11. We may say at the outset that though the ‘welfare principle’ is correctly enunciated and explained in the impugned judgment, no reasons are given as to how this principle weighed, on the facts and circumstances of this case, in favour of the respondent. Instead two main reasons which have influenced the High Court are:

(i) earlier detailed orders are passed by the Additional ACMM allowing the respondent to retain the custody; and

(ii) the appellant here had not given access of children to the respondent even during weekend, in spite of orders passed by the High Court.

12. After hearing the counsel for the parties at length, we are of the opinion that the matter is not dealt with by the High Court in right perspective. Before supporting these comments with our reasons, it would be apposite to take note of certain developments from June 17, 2015, the date on which the respondent had himself handed over the children to the appellant, till the passing of the orders by the High Court. It is also necessary to state the events which took place during the pendency of these proceedings.

13. Whether the respondent had handed over the custody of the children to the appellant on a humanitarian gesture or not, fact which is not in dispute is that Tanay had failed in his Grade IX examinations and he was to reappear for the same. It is also a fact that it is the guidance and tuition of the appellant that Tanay passed the examinations on reappearance and could be promoted to Grade X.

Another fact which needs to be noted here is that when the appellant left the matrimonial home, Tanay was not residing with the parties. He was admitted in a boarding school in Coimbatore, a far-away place from Pune. No doubt, the respondent claims that intention in admitting Tanay in a boarding school in Coimbatore was that he should get best education as the school in which he was admitted is a prestigious educational institution.

At the same time, it is also a fact that Tanay was not in the physical company of his father on day-to-day basis. It is also a harsh reality that he was not doing well in studies during the period his legal custody was entrusted to the respondent. His overall performance in most of the subjects was dismal and he had even failed in Grade IX.

At that stage when, within few days, there was a re-examination, handing over Tanay, along with Varenya, to the appellant, without even any court order, lends credence to the version of the appellant that the purpose was to give appropriate tuition to Tanay by the appellant so that his academic year is not wasted. Another fact which needs to be emphasised at this stage is that though the custody of Varenya was also with the respondent and request of the appellant to hand over interim custody of the children did not prevail with the Additional ACMM who rejected this request vide orders dated December 28, 2014 and March 04, 2015, even Varenya was admitted in a boarding school by the respondent thereafter.

This fact also gives some credence to the version of the appellant that because of his pre-occupation in the business or otherwise, the respondent was not in a position to take personal care of the children and, therefore, he put both of the children in the boarding schools.

14. After the children came to the appellant, they were admitted in a school in Mumbai. It is pertinent to note that Tanay’s academic performance has improved significantly. He is getting very high grades in the examinations. In fact, academic performance of Varenya has also gone up. This factor, though noted by the High Court, has been lightly brushed aside with the observations that if the children were not doing well earlier, blame cannot be put on the respondent as it could be the result of disputes between the parents. In the process what is ignored is that in spite of the said dispute still subsisting, the academic performance of the children, while in the custody of their mother, has gone up tremendously.

15. When the special leave petition had come up for hearing, on the first day itself the respondent had appeared through his counsel as a caveator. Children were also brought to the Court and this Court interacted with them. While issuing the notice, based on the interaction with the children, who desired to remain with their mother, directions contained in the impugned judgment were stayed. At the same time, the respondent was given access to these children as well as visitation rights.

Notice was issued on March 04, 2016. During the period of pendency of these proceedings for more than a year, the respondent has met the children regularly with the grant of visitation rights. This Court, just before final hearing, again met the children. Tanay is seventeen years of age and Varenya is thirteen years old. At this age, they are capable of understanding where their welfare lies. This Court has found that both the children are very comfortable in the company of their mother.

They have expressed their desire to stay with their mother. This Court also feels that welfare of the children lies by allowing the appellant to retain the custody of the children. Circumstances explained above provide adequate reasons for taking this course of action. Children at discernible age of seventeen and thirteen years respectively, are better equipped, mentally as well as psychologically, to take a decision in this behalf. It would be worthwhile to mention that during our interaction with these children, they never spoke ill of their father. In fact, they want to be with the respondent as well and expressed their desire to remain in touch with him and to meet him regularly.

They never showed any reluctance in this behalf. At the same time, when it came to choosing a particular parent for the purposes of custody, they preferred their mother. In fact, these were the reasons because of which the Additional ACMM had passed orders dated July 01, 2015 (after interviewing the children and ascertaining their wishes as well as welfare) rejecting the request of the respondent to restore custody to him.

Same course of action was adopted by the learned Sessions Court while dismissing the appeal of the respondent on August 06, 2015 and affirming the order of Additional ACMM dated July 01, 2015. The High Court has discarded these orders without giving any cogent reasons and on the spacious and tenuous ground that such orders could not have been passed in view of the earlier detailed orders of the Additional ACMM dated December 28, 2015 and March 04, 2015, thereby refusing the custody of the children to the appellant.

In this process, what is ignored by the High Court was that even those were interim orders and the custody was refused at that juncture because of the reason that children were in the mid-term of the academic session. Be that as it may, it was incumbent upon the High Court to find out the welfare of the children as on that time when it was passing the order. As pointed out above, apart from discussing the ‘welfare principle’, the High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely, giving custody to the appellant or to the respondent, is better and more feasible.

16. Learned counsel for the respondent had made a fervent plea to the effect that if custody is retained by the appellant, it would amount to giving her advantage of her own wrong as she took undue advantage of the gracious act of the respondent in voluntarily handing over the custody of the children, but only for three days. He also highlighted the conduct of the appellant, as discussed by the High Court, which has castigated the appellant in this behalf in not obeying the interim directions of giving access to the respondent.

17. In view of our aforesaid discussion, we do not find these arguments to be meritorious. It also needs to be emphasised that the Court, in these proceedings, is not concerned with the dispute between the husband and the wife inter se but about the custody of children and their welfare. A holistic approach in this behalf is to be undertaken. Scales tilt in favour of the appellant when the matter is examined from that point of view. Criminal Appeal No. of 2017 Page 16 of 19 (arising out of SLP (Crl.) No. 1867 of 2016)

18. As a result, this appeal is allowed, resulting in setting aside of the impugned order dated February 17, 2016 passed by the High Court in the writ petition and restoring the order dated August 06, 2015 passed by the Court of Sessions, Greater Mumbai, which affirmed the order dated July 01, 2015 passed by the Court of 38th Court of Additional ACMM, Ballard Estate, Mumbai. At the same time, weekend access given to the respondent by interim directions of this Court shall continue to prevail.

Moreover, during Dussehra, Diwali, Christmas or summer vacations etc., the respondent shall be entitled to avail the custody for half of the durations of those vacations. However, while effecting this arrangement, it shall be ensured that studies of the children are not affected. In case of any difficulty in working out the aforesaid modalities, the parties shall be at liberty to approach the trial court. Since the custody of the children is allowed to be retained by the appellant-mother, domicile certificates of the children as well as their passports which are with the respondent, shall be handed over to the appellant. No costs.

………………………………………J. (A.K. SIKRI)

………………………………………J. (ASHOK BHUSHAN)


SEPTEMBER 4, 2017.


Supreme Court Judgment/directions are called for to prevent the misuse of Section 498A


                                   IN THE SUPREME COURT OF INDIA
                                  CRIMINAL APPELLATE JURISDICTION
                                  CRIMINAL APPEAL NO. 1265 OF 2017
                      [Arising out of Special Leave Petition (Crl.) No.2013 of 2017]

          Rajesh Sharma & ors.                                         …Appellants
          State of U.P. & Anr.                                         …Respondents


Adarsh Kumar Goel, J.

1. Leave granted.

2. The question which has arisen in this appeal is whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in certain studies and decisions. The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned senior counsel to assist the Court as amicus. We place on record our gratitude for the assistance rendered by learned ASG Signature Not Verified Digitally signed by SWETA DHYANI Shri Nadkarni and learned senior counsel Shri Giri who in turn was Date: 2017.07.27 17:07:01 IST Reason:

ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.

3. Proceedings have arisen from complaint dated 2 nd December, 2013 filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant No.1. The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry. They started abusing the complainant. They made a demand of dowry of Rs.3,00,000/- and a car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, appellant No.1 was summoned under Section 498A and Section 323 IPC. Appellants 2 to 5 were not summoned. Order dated 14th July, 2014 read as follows:

“After perusal of the file and the document brought on record. It is clear that the husband Shri Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand. It appears that he has tortured the complainant.

So far as torture and retaining of the stri dhan and demanding 50,000 and a gold chain and in not meeting the demand the torture is attributable against Shri Rajesh Sharma. Rajesh Sharma appears to be main accused. In the circumstances, rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have not committed any crime and they have not participated in commission of the crime. Whereas, it appears that Rajesh Sharma has committed an offence under Section 498A323 IPC and read with section 3 / 4 DP act appears to have prima facie made out. Therefore, a summon be issued against him.”

4. Against the above order, respondent No.2 preferred a revision petition and submitted that appellants 2 to 5 should also have been summoned. The said petition was accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015. The trial court was directed to take a fresh decision in the matter. Thereafter, the trial court vide order dated 18th August, 2015 summoned appellants 2 to 5 also. The appellants approached the High Court under Section 482 CrPC against the order of summoning. Though the matter was referred to the mediation centre, the mediation failed. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal.

5. Main contention raised in support of this appeal is that there is need to check the tendency to rope in all family members to settle a matrimonial dispute. Omnibus allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be accused of demanding dowry or causing cruelty. To check abuse of over implication, clear supporting material is needed to proceed against other relatives of a husband. It is stated that respondent No.2 herself left the matrimonial home. Appellant No.2, father of appellant No.1, is a retired government employee. Appellant No.3 is a house wife. Appellant No.4 is unmarried brother and appellant No.5 is unmarried sister who is a government employee. Appellants 2 to 5 had no interest in making any demand of dowry.

6. Learned counsel for respondent No.2 supported the impugned order and the averments in the complaint.

7. Learned ASG submitted that Section 498A was enacted to check unconscionable demands by greedy husbands and their families which at times result in cruelty to women and also suicides. He, however, accepted that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple. Reference has been made to the statistics from the Crime Records Bureau (CRB) as follows:

“9. That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a total of 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law. While in 2009 for a total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law.

10. That according to Report of Crime in India, 2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs showed that for the year of 2012, a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. The Report further shows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However most surprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted.

11. That according to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.”

8. Referring to Sushil Kumar Sharma versus Union of India1, Preeti Gupta versus State of Jharkhand 2, Ramgopal versus State of Madhya Pradesh3, Savitri Devi versus Ramesh Chand4, it was submitted that misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse. The Madras High Court in M.P. No.1 of 2008 in Cr. O.P. No.1089 of 2008 dated 4th August, 2008 directed issuance of following guidelines:

“It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition 1 (2005) 6 SCC 281 2 (2010) 7 SCC 667 3 (2010) 13 SCC 540 4 ILR (2003) I Delhi 484 Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.”

9. Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5 in Bail Application No.1627/2008 directed issuance of following guidelines :

“2. Police Authorities:

(a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously.

(i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP.

(ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.

5 (2008) 151 DLT 691

(iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file.

(b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.

(c) FIR in such cases should not be registered in a routine manner.

(d) The endavour of the Police should be to scrutinize complaints very carefully and then register FIR.

(e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust.

(f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.”

10. In Arnesh Kumar versus State of Bihar 6, this Court directed as follows :

“11.1All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41Cr.PC;

11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

6 (2014) 8 SCC 273 11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; 11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”

11. Learned ASG suggested that there must be some preliminary inquiry on the lines of observations in Lalita Kumari versus Government of Uttar Pradesh7. Arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The offence should be made compoundable and bailable. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary enquiry report should be furnished to the accused.

12. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section 498Ashould be only after recording reasons and express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if 7 (2014) 2 SCC 1 the IO is convinced that arrest is necessary for fair investigation. In such cases impounding of passport or issuance of red corner notice should be avoided. Procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case under Section 498A.

13. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140 th Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.

14. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498Aalleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted 9. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the 8 Explanation to Section 498A 9 Preeti Gupta (supra) provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable. 15. Following areas appear to require remedial steps :-

i) Uncalled for implication of husband and his relatives and arrest.

       ii)     Continuation of proceedings in spite of settlement
               between     the  parties  since   the   offence     is

non-compoundable and uncalled for hardship to parties on that account.

16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable.10 Just and fair procedure being part of fundamental right to life,11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a 10 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para 47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs. Sudhir Batham(2012) 1 SCC 333 11 State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4 SCC 453- para-21 non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. 12 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.

17. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.

18. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned 12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC 364- para -14 trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.

19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-

i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

20. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018.

21. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action.

22. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions.


(Adarsh Kumar Goel) …………………………………….J.

(Uday Umesh Lalit) New Delhi;

27th July, 2017.

Section 66A of IT Act has been rpealed by Supreme Court






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

Substitute service when effective and the court is entitle to take judicial notice regarding newpaper publication

Andhra High Court
Maganti Krishna Durga, vs Maganti Anil Kumar, on 2 April, 2015




C.M.A.No.3385 OF 2004   


Maganti Krishna Durga,...appellant-Petitioner

Maganti Anil Kumar, .Respondent- Respondent.   

Counsel for the Appellant: M/s K. Chidambaram  Sri Y.V.Srinivasan

Counsel for respondent: Sri V.S.R.Anjaneyulu

<GIST :  ---

>HEAD NOTE  : ---  

? Cases referred:                                           :
1. AIR 1999 SC 3381 
2. AIR-1974-AP-1=ILR-1972-AP-421=1971(1)APLJ-56(SN)     
3.  1993(1)SCC 531 
4. AIR-2000-SC -3272 
5. AIR-1955-AP-112-(Paras 5 to 7)
6. AIR 2004 SC 4096 
7. 2004(6)SCC 325 
8. AIR-1956-SC-593=1956-SCR-451    
9. AIR-1994-SC-853 
10.AIR 1996 SC 2592-para 23  
11.AIR 2000 SC 1165  
13.2010 (8)SCC 383  
14.1956 All E.R.349
15. AIR 1994 SC 2151  
16. (1994) 2 SCC 481 
17. AIR-2003-SC-1706  
18. 2011(3) SCC 545(JJB) 
19. 2002(6) ALD 423 
20. AIR-1989-SC-1477  
21. AIR-1969-Madras-405  
22. HLR 521 Kerela 
23. AIR 1990 MP 217     
24. 1995(2) HLR 633 PH) 
25. AIR 1990 Bombay 84  
26 1987(1) HLR page 610  


C.M.A.No.3385 of 2004  
JUDGMENT (Per Honble Dr.Justice B.Siva Sankara Rao)   

Smt. Maganti Krishna Durga, who is no other than the wife of Maganti Anil Kumar, preferred the appeal under Section 28 of the Hindu Marriage Act (for brevity HM Act) and under Order XLIII Rule 1(d) of the Code of Civil Procedure (for brevity CPC), impugning the order dated 19.07.2004 dismissing her application filed under Order 9 Rule 13 CPC in I.A.No.928 of 2003, to set aside the ex-parte divorce decree dated 24.04.2002 in H.M.O.P.No.86 of 2001 on the file of the Senior Civil Judge, Machilipatnam, obtained by her husband Anilkumar.

2. Heard both sides and perused carefully the material on record including the documents marked for reference, viz., the Exs.C1-9 from record and the Ex.R1-6 additional material filed by the appeal respondent- husband in this appeal in CMAMP No.1647 of 2014, since allowed by order of this Court dated 12.02.2015 in support of his contention of he married again on 20.02.2003 and blessed with child in the second wedlock and in support of their respective rival contentions impugning the lower court`s order by the appellant-wife and supporting the order by the respondent-husband with reference to the provisions and propositions placed reliance by both.

3. Now the points for consideration are:

i). Whether the appellant-wife was not served with summons duly and the substitute service by publication in Janata paper in setting her exparte was not a mere irregularity in the service from improper mention of her name and address of the Mandal area of residence, without foundation for substitute service to obtain the order and also no merits in the exparte decree of divorce dated 24.04.2002 in H.M.O.P.No.86 of 2001 to set aside the same and even from the fact of the respondent-husband married again on 20.02.2003 and blessed with child in the second wedlock and if so, the impugned order of the lower court dated 19.07.2004 in dismissing her application filed under Order 9 Rule 13 CPC in I.A.No.928 of 2003 to set aside the exparte decree is unsustainable and requires interference by this court while sitting in appeal and if so with what observations and conclusions?

ii). To what result?

Pointi :

4.a. For sake of convenience the parties are being referred as arrayed in the divorce petition as petitioner-husband and respondent-wife. In deciding the appeal lis formulated supra, the factual background shows that: the H.M.O.P.No.86 of 2001 was filed against the wife under Section 13(1a) and (1b) of the HM Act on 03.08.2001 to dissolve their marriage took place on 22.05.1993 according to Hindu rites and caste customs at Musunur village of Krishna district (AP). It is after the O.P. was numbered, the trial Court on 24.08.2001, ordered summons to the respondent-wife returnable by 29.10.2001 through Court Process Server as per Order V Rule 1 CPC and simultaneously through registered post under Order V Rule 19-A CPC(as was in force). It is important to note that the summons were returned unserved viz.,(i). through the Court Process Server unserved for not residing in the given address & (ii). through registered Post unserved for left without instructions. It is therefrom the Court having felt the need ordered on 29.10.2001 to file batta for fresh summons returnable by 03.12.2001. As batta was paid only on 03.12.2001 with delay condonation petition, same was allowed to issue summons returnable by 31.12.2001. It was as not paid batta properly to issue, on 31.12.2001 the notice batta represented with a petition was allowed and ordered for issuing the summons returnable by 01.02.2002, however, it appears not properly complied with and thereby from 01.02.2002 it was posted to 5.03.2002 with observation notice to respondent batta received, issue summons returnable by 05.03.2002. It was on 05.03.2002, there was an endorsement by the Court clerk on the case docket that the petitioner filed substitute service petition instead of filing notice batta, hence for orders: it is pursuant to the above note put up by the Court clerk, instead of ordering fresh notice on payment of batta, the Court allowed the substitute service application for publication in Janata (paper) of Vijayawada (Edition) returnable by 24.04.2002. It was therefrom the case docket of 24.04.2002 reads that: publication in Janata of Vijayawada filed, respondent was called absent, set ex-parte and P.W.1 is examined. Claim proved. Petition is allowed with costs. Marriage of petitioner with the respondent is dissolved by decree of divorce.

4.b. In fact the trial Court from the above, did not properly conduct the proceedings. It casually ordered for the sake of mere asking the substitute service in a news paper by publication, without foundation as per O.V R.20 CPC of respondent avoids service, and even ordered fresh summons through Court and process not even properly filed in compliance of the orders and more particularly in matrimonial proceedings, summons must be as far as possible by personal service through court process server or registered post or other assured service and not by paper publication, that too even not a paper of wide circulation, besides no order to circulate in the area of respondent`s address at Musunur village of Musunur Mandal/Taluk.

4.c. Apart from it, the trial court though supposed to decide on merits, did not even go into merits of the lis and casually dissolved the marital tie for mere asking and for the following reasons:

4.c.(i). The divorce petition averments were that, since marriage respondent used to humiliate him for the reason they are superior in financial status to his family, she insulted him several times despite he was showing love and affection towards her with fond hope that there would be a change in the attitude of her, that she never treated him with affection, that she used to go to her parents house frequently even he was bringing her back many a time through mediators. It is also averred that even he is the only son, she developed disputes with his unhealthy mother with a demand to put up a separate family due to which his mother went away and was staying separately, that she took him to her parents house at Musunur village on the pretext to manage their properties and even there he was ill- treated pointing out his financial status, that he brought her back to his house where she stayed for about 15 days and left to her parents house along with the girl child-Mounika in the year 1998, that even he sent elders by names Vadlapatla Narayanarao, Maganti Kondaiah Chowdary and Jasti Vishnuprasad to demand her for joining him, she refused stating unwillingness to lead life with him and that she would leave the daughter to his custody if he pays Rs.1,00,000/-, that as a last resort he cause issued legal notices on 08.02.2000 and 07.02.2001 demanding her to join him that was returned unserved and having waited with a fond hope of she may change her attitude and join him, for no other alternative seeking divorce.

4.c.(ii). His exparte evidence of even date 24.04.2004 reads that: I am the petitioner herein. Respondent is this petition is my wife. As my marriage was stipulated on 22.05.1993 according our custom and the same was consummated. The respondent gave birth to a female child. Misunderstandings arose between me and respondent. She left me without any just and reasonable cause and she never treated me with affection. Always go to her parents house and left three years back without any reasonable cause. In spite of my efforts for reconciliation she did not cooperate for amicable settlement. As such I am constrained to file this petition. It is prayed that the petition may be allowed with costs dissolving my marriage with the respondent.

4.c.(iii). From the above pleadings and ex parte evidence of the petitioner-husband supra, the impugned order of the Court on even date reads that: Respondent called absent. Set ex-parte. PW1 examined. Claim proved. Petition allowed with costs. Marriage of petitioner with respondent is dissolved by way of decree of divorce. In the appendix of evidence, the petitioner is shown as P.W.1 with no other evidence oral and documentary.

4.d. The learned Senior Civil Judge, in passing the exparte decree did not assign any reason for grant of decree of divorce, not even discussed the pleadings and evidence as to the case made out for cruelty or for desertion and in particular as to relief granted is on the grounds of cruelty or desertion or on both grounds and as to what material on record that constitute cruelty or desertion or both. The learned Senior Civil Judge did not even draw his attention to the factum of the very divorce petition averments at para-4 clearly speak that he issued notice to the respondent twice on 08.02.2000 and on 07.02.2001 and those were returned unserved. That itself is an indication of she was not residing there at Musunuru village and even he has shown same address in his divorce petition and even the court process server endorsement on oath of non-service for she is not residing in the address and registered post also returned as addressee left the address without instructions, even court ordered fresh notice through court, no process filed duly to cause serve through court and having avoided to file process duly, filed substituted service petition and get paper publication order. Those facts not even drawn attention. The earlier notices he stated issued to her unserved not even filed by him and even in his Chief examination as P.W.1-reproduced above, he could not even make out any ground for desertion with animus-deserandi of two years continuous period nor any acts of cruelty which makes the petitioner/husband unbearable and unable to continue the marital life with the respondent.

5.a. It is not out of context to quote the erudite words of Lord Watley that The judgment is like a pair of scales and evidence like the weights, the Judge holds the balance in its hands in the noble cause of justice delivery, where there shall not even be a slightest jerk to make the lighter side appear heavier.

5.b. The reason is, if the Judge tips the scales of justice, its rippling effect would be disastrous and deleterious. The Judgeship is in fact an office of public trust and a Judge always keep in mind that he discharges a divine function, though he is not divine himself.

5.c. In Balraj Taneja Vs. Sunil Madan – the Apex Court well laid down as per(Or.XX & Sec.2(2&9)CPC)that: a judgement should be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the Judgement. Whether, it is a case which is contested by the defendants by filing a written statement, or a case which proceeds exparte and is ultimately decided as an exparte case, or is a case in which the written statement is not filed and the case is decided under Or.VIII R.10 CPC. The Court has to write a Judgement which must be in conformity with the provisions of the code or at least set out reasoning by which the controversy is resolved. Even if the definition was not contained in Sec.2(9) CPC, of the contents there of were not indicated in Or.XX R.1 CPC, the Judgement would still mean the process of reasoning by which a Judge decides a case in favour of one party and against the other. The whole process of reasoning has to be set out for deciding the case one way or the other. A Judge can not merely say Suit decreed or dismissed. In Judicial proceedings there cannot be any arbitrary orders.

5.d. Full Bench of this Court in Aziz Ahmed Vs. I.A. Patel (Kumarayya,C.J., Ekbote & Sambasiva Rao, JJ)-held referring to Or.XX,R.4(2) & Or.IX, R.6 CPC- on the exparte proceedings also that-While pronouncing judgment, Court should apply its mind to the facts of the case and the point at issue and give a reasoned judgment after duly evaluating the evidence adduced. Judgment without reasons and not in conformity with Or.XX, R.4 & 5 is not a binding Judgment.

5.e. The Apex Court in Rameshwar Dayal Vs. Banda(dead) through his L.Rs : held that even the order of a Small Causes Court dismissing or decreeing eviction suit exparte without rendering any findings on point in controversy for decision is no Judgement to bind anyone.

6. Leave about no merits for dissolving the marriage from what is referred supra in the cryptic order, it is important to mention that:

6.a. The divorce petition filed by the husband, mentioned the name of the petitioner as M. Anil Kumar and the respondents name as Maganti Krishna-Durga @ Kanaka-Durga and in the vakalath of him without any alias name, mentioned as M. Kanaka-Durga only – which is marked for reference as Ex.C1. Even in the divorce O.P. filed which enclosed the separate address memo with short and long cause titles of the parties, in the short cause title and long cause title of the respondent, her name is mentioned categorically as Krishna-Durga and not either as Kanaka-Durga much less Krishna-Durga @ Kanaka-Durga which are marked for reference as Exs.C2 and C3. Further in the long cause title description of the respondent, it was mentioned as (c/o) address of Smt. Veerapaneni Pitchamma, (not even her parents address) near police station, Musunur, Musunur Mandal. In the P.W.1`s chief examination supra there is no mention of respondent got alias name. The exparte decree of the trial Court in the cause title speaks Krishna-Durga@ Kanaka-Durga C/o Smt. Veerapaneni Pitchamma. Whereas, in the divorce petition in the short and long cause titles there was striking out of the words Kanaka among Kanaka-Durga and added Krishna-Durga so as to read it as Krishna-Durga@ Kanaka-Durga with writing of ball pen without even initials. On perusal of the main case docket proceedings, nowhere he filed petition regarding the name for said correction to strike out Kanaka-Durga and to interpolate or incorporate as Krishna-Durga@ Kanaka-Durga. When vakalath speaks Krishna-Durga, main divorce petition enclosed address form shows in long and short cause title only as Krishna- Durga and original petition shows Kanaka-Durga, even for said correction in the divorce petition, there must be a permission of the Court and requirement of petition under Order VI Rule 17 CPC that was not there much less any such endorsement of the correction made with permission of Court, apart from no neat copy filed if the correction was before filing in Court, besides not carried the correction in vakalath and petition enclosed address slip supra. The original petition carrying said correction in the short and long cause title is marked as Exs.C4 and C5 for reference and the original docket proceedings sheet of the Court right from filing of the petition on 03.08.2001 till the exparte decree passed by the Court on 24.04.2002 is marked for reference as Ex.C6 and the deposition of PW1 referred supra as Ex.C7 and the ex parte decree as Ex.C8. In this regard, it is important to note that the paper publication for the original not before the Court not sent by the lower Court with the record called for received by the Court from one of the learned counsel for the parties in open Court to mark for reference is marked as Ex.C9. The Ex.C9 paper publication reads the name of the respondent as Maganti kanaka-Durga C/o. Veerapaneni Pitchamma, near police station, Musunur, Nuziveedu Mandal, though it is in Musunur Mandal and without even mention of husbands name or father`s name or mother`s name and not even shown the care of address of parents at Musunur village. In the paper publication, name of the respondent is not even shown either as Krishna-Durga or even as Krishna-Durga@Kanaka- Durga but as Kanaka-Durga. Had the original petition corrected before representation, the publication must mention generally with @ name. The paper publication cause published by the petitioner-husband shows even ordered on 08.03.2002 cause published only on 23.04.2002 which is a day before the hearing date of 24.04.2002 to state any of the objections by 10.00 A.M. on 24.04.2002 before the Court. From this factual background, there is any amount of doubting the honesty of the petitioner/husband in cause publishing by said substitute service in the Janata paper, Vijayawada Edition with wrong name which is not correlating to name of respondent Krishna-Durga mentioned in Ex.C1 vakalath or Exs.C2 and C3 address memo of parties short and long cause title without any @ name therein or even in relation to the subsequently corrected by striking down Kanaka and adding Krishna Durga@ Kanaka Durga in the divorce petition at page 1 short and long cause titles Exs.C4 and C5. Even to say mistake was crept in the paper publication, for such explanation is not even available to give any credence to the submission that in the course of filing before representation of the return the correction was allegedly carried out in the original petition page 1 short and long cause title Exs.C4 and C5 as Krishna Durga@ Kanaka Durga. If that is true to give credence, the paper publication-Ex.C9 should have reflected Krishna Durga@ Kanaka Durga in the name of respondent, but it shows as if Kanaka Durga and not even the original name of respondent Krishna Durga as shown in Exs.C1-3. It is important to note further that as per the A.P. Civil Rules of Practice, Rule 11 Sub-Rule 2 if the address furnished of the respondent or of the petitioner in the original pleading is required to be changed for proper address of service, the party who desires so to change shall file a verified petition and the Court may direct the amendment of the record accordingly. It was not done in this case.

6.b. Even as per the Order V Rule 20(i) CPC, for ordering substituted service, it must be shown that the respondent is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way. It is only from such averment and on subjective satisfaction of the Court in relation thereto for reason to believe such averment, to order substitute service by affixing a copy of the summons on some conspicuous part of the house in which the respondent is known to have last resided or carries on business or personally works for gain and even for service by an advertisement in a newspaper, the notice to the respondent for appearance, further the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resides or carries on business or personally works for gain. In this case, as can be seen from the Ex.C6 docket order of the Court dated 05.03.2002 in allowing the petition for substitute service, that too even earlier ordered for payment of batta to send notice afresh through the Court or by registered post having not even filed and instead of insisting by Court so to file and without assigning any reasons for ordering substitute service, for the mere asking by the petitioner/husband, the Court ordered substitute service that too for publication in Janata of Vijayawada. It did not even mention for circulation in the locality of the address shown in the cause title of the respondent of Musunur village in Musunur Mandal. Even from Ex.C9 paper publication, it is difficult to conceive, whether it is any popular newspaper much less with circulation in the area of the so called residence of the respondent shown in the divorce petition of Musunur village in Musunur Mandal. The Court is entitled to take judicial notice under Section 56 of the Evidence Act of the fact that the said newspaper Janata is not at all in circulation much less within the locality shown in the cause title of the respondent/wife. The trial Court also went wrong in acting upon the said paper publication in ignorance of the mandate of the provisions of order V Rule 20(1) and (1a) not only in ordering said paper publication but also in such paper without any circulation much less to the notice of the respondent where she resides in that area.

6.c. It is also important to note that the Court ought not to have ignored the docket proceedings dated 29.01.2001 of Ex.C6 where, notice ordered through Court Process Server returned unserved with endorsement of the respondent is not residing in the given address. When such is the case, for fresh notice ordered instead of sending to the correct address, the respondent did not even file batta properly much less with correct and change of address and even it shows three more adjournments taken for said purpose including for representing batta with petition to receive by condoning delay for imperfect filing, without even complying managed to get substituted service which is contrary to law as referred supra.

6.d. In the factual matrix, it is nothing but not only fraud on the party-respondent (wife) to the divorce petition but also fraud on the Court as per the following settled expressions:

6.d.i). In Gram Panchayat of village Noulaka Vs. Ujaghar Signh it was held by the Apex Court referring to Sec.11 CPC (Resjudicata) and Sec.44 Evidence Act (collusive or fraudulent decree), that plea of decree passed in earlier proceeding was collusive or fraudulent can be raised even in a later proceedings. Filing a separate suit for declaration that decree was collusive or fraudulent is not a condition precedent for rising such plea. A contrary view would go against the provisions of Sec.44 Evidence Act which provides that any party to a suit or proceeding may show that any judgement, order or decree which is relevant u/s.40, 41 & 42 and which has been delivered by a court not competent to deliver it or was obtained by fraud or collusion It is also from the expression of this Court way back in Gurajada Vijaya Vs. Padmanabham

6.d.ii). In Ram Chandra Singh Vs. Savitri Devi , the Apex Court held that misrepresentation itself amounts to fraud and further held that fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. The said judgment was reconsidered and approved in Vice-Chairman, Kendriya Vidyalaya Sangathan vs. Girdharilal Yadav .

6.d.iii). In Nagubai Ammal Vs. B.Shama Rao the Apex Court-three Judge Bench-(AIYYAR, T.L. VENKATARAM; DAS, SUDHIRANJAN(CJ) & IMAM,SYED JAFFER)-laid down the distinction between a collusive and a fraudulent proceeding that, while the former was the result of an understanding between the parties, both the claim and the contest being fictitious, and the purpose is to confound third parties; in the latter the contest was real, though the claim was untrue, and the purpose is to injure defendant by a verdict of court obtained by practicing fraud in it.

6.d.iv). In S.P.Chengalvaraya Naidu(dead) by L.Rs. Vs. Jagannath (dead) by L.Rs – the Apex Court-two Judge Bench-(KULDIP SINGH & P.B.SAWANT, J.J): referring to Sec.2(2) CPC & Sec.44 Evidence Act held that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another, it is a deception in order to gain by another’s loss…it is a cheating intended to got an advantage. Withholding of a vital document or information relevant to litigation by a litigant is also fraud on Court and the guilty party is liable to be thrown out at any stage of litigation for the decree is vitiated by fraud.

6.d.v). The Apex Court in Indian Bank Vs.M/s. Satyam Fibres(India) Pvt.Ltd. held that: Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. In United India Insurance Company Ltd. v. Rajendra Singh – the Apex Court observed that Fraud and justice never dwell together (fraus et jus nunquam cohabitant) and it is a pristine maxim which has not lost temper over all these centuries.

6.d.vii). In Bhapurao Dagdu Paralkar Vs. State of Maharashtra at para-12 it was held by the Apex Court that Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. Fraud and justice never dwell together. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void abinitio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affairs with fraud cannot be perpetuated or saved by the application of any equitable doctrine including resjudicata.

6.d.viii). In Meghmala and others Vs. G.Narasimha Reddy at paras- 28-34 it is held by the Apex Court that when once fraud is proved, all advantages gained by playing fraud can be taken away. Suppression of material fact/document amounts to a fraud on the Court.

6.d.ix). In Lazarus Estate Ltd. Vs. Besalay -it was held without equivocation that no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything.

6.d.ix). In Andhra Pradesh State Financial Corporation v. M/s. GAR Re-Rolling Mills ; and State of Maharashtra v. Prabhu , the Apex Court has observed that even a writ Court, while exercising its equitable jurisdiction, should not act to prevent perpetration of a legal fraud as Courts are obliged to do justice by promotion of good faith. Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law.

6.d.x). The latin Maxims support the conclusion are:

i). Nemo ex dolo suo proprio relevetur, aut auxilium capiat=No one is relieved or gains an advantage by his own fraud.

ii). Lata culpa dolo aequiparatur=Gross fault or negligence is equivalent to fraud.

iii). Dolus et fraus nemini patrocinentur; patrocinari debent= Deceit and fraud shall excuse or benefit no man; they themselves need to be excused.

6.d.xi). In Collector Vs P.Mangamma -it was held that there is no statute of limitation for exercise of power under an Act where fraud is detected to correct it.

7. It is in this background, there was no any possibility of knowledge of the filing of the divorce proceedings and obtaining of the exparte decree against the respondent-wife unless she receives any decree or order of the Court. Though copy of the divorce decree and judgement is required to be sent to the parties as per Rules 16-B & C and it shall also be mentioned in the decree and at the end of judgment that the aggrieved party or the learned counsel has been informed of whether desires to appeal against the decree and any such statement of desire to appeal shall be an intimation to the opposite party of the intention of other party to go in appeal, same is not even complied in this case for nothing to show, free copy of the decree and order of divorce sent to the respondent. Rules also speak provisions of CPC applies to the extent possible to the matrimonial proceedings.

8. In this background, the respondent-wife filed the application in I.A.No.928 of 2003 to set aside the exparte decree of divorce dated 24.04.2002. She also filed another application in I.A.No.745 of 2003 under Section 5 of the Indian Limitation Act to condone the delay in filing said application in I.A.No.928 of 2003 to set aside the exparte divorce decree.

8.a. The averments in I.A.No.928 of 2003 to set aside the exparte decree (like in the application in I.A.No.745 of 2003 to condone delay in its filing) are that after the marriage performed at Musunur, dated 22.05.1993, she joined her husband at Gopavaram and in their wedlock blessed with a female child(Mounika) and after birth of the female child, her husband was demanding for additional dowry and did not stop ill-treatment of her even she brought Rs.50,000/-on four occasions from her parents and given to him as per his demands, that finally in March, 1999 he necked her out and with no alternative she went to her parents house at Musunur and later she joined as a student in charge of Sri Chaitanya Mahila Kalasala of Tadigadapa village of Penamalur Mandal(for short, Chaitanya College), Krishna district in the month of November, 1999 and while she was working there to his knowledge, she made efforts to join him through elders, which he did not heed and also threatened her with dire consequences. She further averred that, she came to know only 10 days prior to the filing of this application that her husband filed the divorce case by showing her with wrong address as well as wrong name even it is within his knowledge that she has been residing at Tadigadapa since November,1999; that he wantonly showed her address wrongly and cause published in a paper with wrong address and he intentionally shown the wrong address of her and managed to obtain an exparte decree against her dated 24.04.2002, that her husband played fraud on her in obtaining the decree and thereby prays to set aside the exparte order and decree dated 24.04.2002 and permit her to partake in the proceedings. She categorically pleaded that he played fraud by giving a wrong address and by giving wrong name and by managing to get a paper publication order and obtained the exparte decree behind her back.

8.b. It is important to note that the application in I.A.No.745 of 2003 to condone the delay was allowed after service of notice on him and from his no-contest, which is not even in dispute.

8.c. The counter filed by the husband as respondent to this application in I.A.No.928 of 2003 is with averments that the allegations of he wantonly shown the address of his wife wrongly with an intention not to serve the summons on her or played mischief in giving wrong address are not true, that he has given correct address of her and she purposefully avoided receiving summons and remained exparte and she was made exparte after satisfaction by the Court regarding service of summons and as such, the exparte decree dated 24.04.2002 is not required any interference and thereby sought for dismissal of the exparte decree set aside petition.

8.d. From above contents of the counter filed by the respondent in this I.A.No.928 of 2003, he did not deny or dispute her pleading specifically of she is residing since November, 1999 at Tadigadapa of Penamalur Mandal, where she is working as a student in-charge in Chaitanya College after she was necked out by him in March,1999 having stayed for some time at her parents house in Musunur and she made efforts through elders for joining him back even while residing at Tadigadapa which is well known to him and even knowing the same he intentionally mentioned a wrong address not even of her parents but as if the C/o. address of one Smt. Veerapaneni Pitchamma. It is no doubt the submission by the learned counsel for the respondent/husband in the appeal in the course of hearing that said Veerapaneni Pitchmma is her grandmother and she is residing with said Pitchamma. However, but for in the attempts now to say that she is maternal grandmother or so to his divorced wife, he did not chose to deny her averments specifically as required by Order VIII Rules 3-5 CPC to this application in I.A.No.928 of 2003 regarding said factum of she has been working by residing at Tadigadapa in Chaitanya college as a student in- charge by staying there from November,1999 even to his knowledge from the efforts made by her through elders for joining him while so stating which he refused even. Even according to his divorce petition averments at para-4 he stated that twice he sent notice in the years 2000-2001 that were returned unserved for not residing there. Thus he could have mentioned by enquiring her correct address in that divorce application at para-4. Even from the above when notices returned unserved for no such addressee, it was his duty to furnish correct address of her to serve the notice through court process server or regd. Post and even so ordered by Court he avoided compliance with no explanation for the same even now, had it been not his fraudulent intention to get the exparte decree behind her back.

8.e. It is also important to refer Article 123 of the Limitation Act, as per which the limitation period of 30 days to seek for seta side exparte decree is from date of her knowledge, which she claims just 10days before filing the petition she came to know and as such even application under Sec.5 Limitation Act not required. For that runs Article 123 reads that the period of limitation for an application to set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte is thirty days, the time of limitation starts to run from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. The explanation to it clearly speaks that- For the purpose of this Article, substitute service under Rule 20 of Order V CPC shall not be deemed to be a due service.

8.f. The Order IX Rule 13 CPC which requires reproduction reads that: In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also;

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.

8.g. No doubt, the learned Counsel for the respondent/husband to the appeal submits that there is only an irregularity in service and she got knowledge and thereby the exparte decree not required to set aside, that too after he married for second time and given birth to a child. He placed reliance on the expression of the Apex Court in Parimal Vs. Veena@Bharti . Therein wife filed the application under Order IX Rule 13 of CPC to set aside the exparte decree obtained by the husband by taking substituted service through paper publication under Order V Rule 20 CPC. The Apex Court observed that the second proviso to Order IX Rule 13 CPC makes it obligatory on the appellate Court not to interfere with exparte decree unless it meets the statutory requirements, showing non service of summons or where there is sufficient cause for her not appeared before the Court and the same when not dealt with by the High Court to set aside the finding even recorded by the trial Court; it was held therefrom that the High Court erred in not appreciating facts in correct perspective and only relied on post exparte divorce decree conduct of husband and even there is nothing to show any fraud or collusion between post man and husband for endorsement of refusal, besides there is presumption of due service by regd. Post at the address of the respondent and the disputed statement of the wife that she was resided at different addresses with her brother was not supported by him and that too, the news paper publication by substitute service affected in the National daily news paper called National herald is of the wide circulation in Delhi and in the area where the respondent wife was stated residing at her brother`s house.

8.h. Here, the facts are entirely different as it is not even a regular Telugu daily newspapers like Eenadu, Sakshi, Vartha, Andhraprabha, Andhrajyothi or Andhrabhoomi etc., of wide publication, as the so called paper Janata is practically with no circulation for the Court to take judicial notice under Section 56 of the Indian Evidence Act and that too in this case, the very pleading of the husband in his divorce petition para-4 is also very clear of his knowledge that the respondent was not residing in that address for even earlier he sent two notices to her that were also returned unserved as not residing and even that is the case he should have chosen to ascertain her correct and present address of her as directed by the court to file process/batta afresh to serve notice to her through court for earlier notices ordered by court returned unserved as no such address at the given address and without such compliance and without even complying to the order of the court by taken more than three adjournments to file batta with correct address properly, managed to get order of court for substitute service by paper publication of such a paper with no circulation and the court even unmindful of these facts and un-gauged the mischief and fraud of the husband ordered wit out even observing the court bench clerk endorsement of without filing batta for notice through court to issue to correct address he file substitute service application, by its ordering for mere asking, nothing more is required, besides other facts of wrong name and wrong address he furnished, to say he not only played fraud on the respondent wife in the divorce case, but also played fraud on the court in obtaining the exparte decree, behind back of wife and by avoiding service of notice to her purposefully.

8.i. Apart from it, he come with the petition for substitute service without even a factual foundation to show, she willfully avoiding service through court and registered post so to order, apart further from the publication order even obtained with sufficient time, only a day before hearing cause printed the news item for appearance on next day by morning hours before the Court. All these cumulatively establish the fraud he played on respondent and court in obtaining the exparte decree. Thus, the proposition laid down in that expression has no application to the present case for the reason and as discussed supra and more particularly for the facts on hand, it is not a mere irregularity in service much less in showing respondent got knowledge of the proceedings and date of hearing and having sufficient time to appear and answer and failed to appear which are the requirements as per the Order IX Rule 13 including from the second proviso, for not to set aside the ex parte decree. It is also for the reason that having shown her name correctly as Krishna Durga in the vakalath filed by him in the divorce application and also in the address form filed by him with the divorce application in short and long cause title Exs.C1 to C3, intentionally shows as if Kanaka Durga in the Ex.C9 paper publication that too a small paper not even a daily news paper and without any circulation and further the original divorce application petition page 1 without even correcting the address form and vakalath name of the wife as Krishna Durga corrected as Krishna Durga@ Kanaka Durga in the divorce application Exs.C4 and C5. Also it is not even his contention in the counter opposing her Order IX Rule 13 CPC petition that too, even she positively averred in her application that since November, 1999 she has been residing at Tadigadapa, Penamalur Mandal, by working in Chaitanya College for women and therefrom also she sent mediators for reconciliation and he very well knows the same having not even chosen to dispute the facts, though a specific denial is required as per Order VIII Rules 3 to 5 CPC, otherwise, it tantamount to admission if read with Section 58 Evidence Act, with no further proof. Thus, it is suffice to say he not only shown wrong address instead of showing she is residing in Tadigadapa, by working as student in- charge in Chaitanya College, but also shown such a wrong address not even by showing as C/o her parents at Musunur, where they were residing, but showing as C/o. address of an old lady by claiming in the appeal hearing as if that old lady is her maternal grandmother for nothing to show she was ever residing with her so called maternal grandmother at her house.

9.a. Despite all these facts borne by record, the impugned order dated 19.07.2004 passed by the learned Senior Civil Judge in dismissing the I.A.No.928 of 2003 referring to the facts from the pleadings in the petition as well as the counter of the respondent also by mention at para-7, is no way sustainable. The reasons assigned by the Lower Court for dismissal of the application by the impugned order are no way tenable, that too, by referring to the only decision in M.Narasimha Reddy Vs.Bagari samuel holding that summons not be served since defendant was not residing in the village and application of the plaintiff by substituted service when cannot be said to be due service of summons under law, order setting aside the exparte decree is just. The lower Court also not correct in its observation that the paper publication made with the name as Kanaka Durga C/o Veerapaneni Pitchamma and in the petition I.A.No.928 of 2003 she has shown her name as Krishna Durga and nowhere it is mentioned by her that she was not called as Kanaka Durga and notice was published in Janata daily newspaper having as if wide circulation and at para-10 that under the circumstances, the Court cannot agree her contention that publication in the newspaper was not proper one and the reasons assigned by her to set aside the ex parte decree on divorce are not cogent and convincing. The lower Court went wrong in not considering the vakalath of husband in main petition and also address form(Exs.C1-3) mentioned by her of her correct name as Krishna Durga. Thus, ignoring the same and putting again negative burden on the wife in saying as if she did not mention in her affidavit and petition that she was not called as Kanaka Durga, is not tenable, for no need to say when husband himself stated her name as Krishna Durga in (Exs.C1-3) supra, further in the publication shown as if Kanaka Durga and as if in Nuziveedu Mandal and as if care of an old lady and not even to her parents care of address, even he claimed in the divorce petition of she left to her parents house and did not come to him therefrom to join.

9.b. No doubt it is his contention that he married again on 20.02.2003 and blessed with child in the second wedlock, from the additional material filed by him in this appeal in CMAMP No.1647 of 2014, since allowed by order of this Court dated 12.02.2015 and marked Ex.R1-6 for reference; copy of his second marriage invitation Ex.R.1 dated 20.02.2003, with one Vijayalakshmi; Ex.R.2 Photostat copy of the receipt of said marriage performed at the temple of Mantada, Krishna district; Ex.R.3 birth certificate of the female child Yamini Krishna dated 22.12.2003 through the wife of second marriage; Ex.R.4 the maintenance case under Section 125 of the CrPC fled by the wife Krishna Durga and daughter Mounika in the year, 2013 showing there the then address as residing in Musunur village care of her mother and Ex.R.5 copy of plaint in O.S.17 of 2013 filed for partition by the daughter baby Mounika through guardian-mother Krishna Durga showing in the care of her parents and relatives at Musunur village. However, none of the documents in particular Exs.R.4 and R.5 maintenance case and the suit filed both of the year, 2013 the wife and daughter are residing at Musunur at the mother`s house of the wife, no way improve his contention much less to establish that in the year, 2001-2002 at the time he filed the divorce petition and sent summons, then also the wife was residing at Musunur village. The other document Ex.R.6 is his written statement in the Ex.R.5 suit filed by his daughter through the 1st wife for relief of partition against him. Though it is his contention that the additional evidence covered by Exs.R.1 to R.6 of he undergone the marriage with Vijayalakshmi and blessed with a female child are the additional grounds for non- interference with the dismissal order of the exparte decree set aside petition by the lower Court covered by the impugned order in I.A.No.928 of 2003; that contention cannot be given credence for what are the facts discussed supra and how he played fraud on his 1st wife and also on the Court.

9.c. Coming to the appeal maintainability and scope Section 15 of the HM Act and consequence of 2nd marriage, in fact Order IX Rule 13 CPC scope as referred supra equally of Article 123 of theLimitation Act, against the rejection of the application to set aside the ex-parte decree, an appeal lies under Order XLIII Rule 1(d) CPC apart from the appeal lies under Section 28 of Hindu Marriage Act. He claims that after decree of divorce and appeal time, he can marry again. For that, Section 15 of the HM Act reads that When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again. On its scope as held by the Apex Court in Latha Kamat Vs. Vilas , even after obtaining a decree for annulment or dissolution of marriage by one spouse, the appeal remedy of the other spouse does not take away much less appeal becomes infructuous due to any re-marriage. It was held way back by the Madras High Court in Vathsala Vs. Manoharan that where the application to set aside ex parte decree filed, any contact of second marriage by the opposite party before setting aside the exparte decree, will not render the pending proceedings infructuous and to say otherwise would mean by the act of a party he or she can successfully defeat the lawful remedy given to the aggrieved party. It is to mean despite re-marriage by the act of a party who obtained decree of divorce or annulment of marriage, the other party`s right and remedy to seek for setting aside the exparte decree or to file appeal against the decree as per the statutory provisions no way be taken away.

9.d. In this regard, it was also held by the Kerala High Court in the expression of Susheeladevi Vs. Padmanabhaiah (also held in similar lines by the other High Courts viz., Smt. Rajeshwari vs Jugal Kishore Gupta and Ujwal Sahari Vs. Ravi Sahari that where exparte decree of divorce against wife obtained by husband on 08.03.1984 and later husband married even after waiting more than one year on 20.12.1985 and blessed with a child in the second wedlock on 15.11.1984, when the first wife preferred appeal on 26.05.1986 even two years after the decree of divorce with application to condone the delay and the delay condonation application for entertaining the appeal filed will not become infructuous for the reason of husband`s re-marriage before, as once delay has been condoned it must be held that the period for filing the appeal is not expired. Section 15 of the Hindu Marriage Act, thus does not override Section 28 of the Act which provides the right of appeal, much less makes it otiose. The expressions of the Bombay High Court in SD Rana Vs. DD Rana is also on same lines. In Mithu Singh Vs. Saroj Kumar , on facts where the husband obtains a decree of divorce exparte by practicing fraud, it was held not open to the husband to take advantage of Section 15 of the Hindu Marriage Act and re- marry.

9.e. Thus, even the application filed by the wife on 01.05.2003, to set aside the exparte decree dated 24.04.2002 passed against her, as per Exs.R1 and R2 the husband as per the exparte decree married again on 20.02.2003, before she filed the application; once it is shown that she has no knowledge of the proceedings and not served with summons in filing application within one month from date of knowledge as per Article 127 of the Limitation Act, which says substitute service is no proper service so to construe and even otherwise filed the application to condone delay as a caution and delay is once condoned in I.A.No.745 of 2003 apart from the exparte decree set aside petition in I.A.No.928 of 2003 is entertained for the same not a bar from remedy of appeal also provided under Section 28 of the HM Act r/w. Order XLI CPC, for Order IX Rule 13 CPC is a parallel and other efficacious remedy to avail without going for appeal, to file application and seek to set aside the exparte decree, apart from such rejection prone to miscellaneous appeal remedy under Order XLIII Rule 1(d) and Rule 2 and Order XLI CPC r/w. Section 28 of the HM Act. It is also for what is the bar provided under Order IX Rule 13 of CPC is maintainability of an application under Order IX Rule 13 CPC where before maintaining such application if invoked already the doors of the appellate Court by appeal remedy also provided.

10. Thus, the order of the lower Court in dismissing the I.A.No.928 of 2003 in HMOP No.86 of 2001 is liable to be set aside and the exparte decree set aside application is to be allowed by setting aside the exparte decree of the divorce dated 24.04.2002 and restoring the HMOP No.86 of 2001 to the file of the Senior Civil Judge, Machilipatnam to receive counter of the respondent wife and decide the case after trial on merits. Point-ii:

11. In the result, the appeal is allowed with no costs and the impugned order of the lower Court dated 19.07.2004 in I.A.No.928 of 2003 is set aside and consequently the said application is allowed by setting aside the exparte decree of divorce dated 24.04.2002 by restoring the HMOP No.86 of 2001 to the file of the Senior Civil Judge, Machilipatnam to decide the same preferably within six months and on merits by receiving counter of the respondent-wife therein and by recording the evidence afresh of both sides.

___________________ R.SUBHASH REDDY,J _______________________ Dr.B.SIVA SANKARA RAO,J Appendix of evidence:

Documents marked for appellant:


Documents marked for respondent (as per orders in CMAMP No.1647 of 2014):

Ex.R.1 Wedding card,dt.20.02.2003 Ex.R.2 Receipt issued by Sri Kalyana Venkateswara Swamy Devasthanam, Mantada, dt.20.02.2003 Ex.R.3 Birth certificate issued by gram panchayat, Vuyyuru,dt.17.02.2004 Ex.R.4 Copy of Petition in Maintenance Case, Ex.R.5 Copy of the plaint in O.S.No.17 of 2013, Ex.R.6 Copy of Written Statement in O.S.No.17 of 2013 Documents marked by the Court for reference:

Ex.C.1 in the part of respondents name in the vakalath, Ex.C2 &3 Short and long cause title of respondent in the address memo filed in Divorce O.P.86 of 2001 Ex.C4 &5 The correction that was carried on in the long and short cause title of respondent in the 1st page of petition in O.P.86 of 2001 Ex.C.6 Original docket proceedings sheet of the Court right from filing of the petition on 03.08.2001 till the exparte decree passed by the Court on 24.04.2002, Ex.C.7 deposition of PW1 in O.P.No.86 of 2001, Ex.C.8 Ex parte decree dated on 24.04.2002, Ex.C.9 Photostat copy of paper publication.

___________________ R.SUBHASH REDDY,J ______________________ Dr.B.SIVA SANKARA RAO,J Date: 02-04-2015.