History Litigation

Robed and privileged – how advocates are protected against defamation proceedings for statements made by them in court

vijayaraghavannarasimhamMukul Rohatgi, the Attorney General for India, reportedly said during proceedings before the Supreme Court that the collegium had appointed many undeserving and inefficient judges to the apex court and high courts who went on to “create havoc” in the country. To argue that it was a myth that only judges could appoint good judges, he submitted in a closed envelope, a list of eight cases of what he called “bad appointments and selection” and referred to the questionable conduct of many judges.

Can proceedings be initiated against the Attorney General for these statements bordering on defamation? Do the affected lot have a remedy?

In many settings, if we called someone a liar, cheat or incompetent or worse, we might be on the receiving end of a defamation claim. If we need to say that during litigation, we’re generally protected by the litigation privilege. The litigation privilege confers absolute immunity from defamation claims for statements made during both judicial and quasi-judicial administrative proceedings. The privilege applies to attorneys, parties, judges and witnesses. To qualify for such privilege, the statement must meet two general tests. First, it must have some reference to the subject matter of the litigation. Second, it must be made in connection with a judicial proceeding.

This is the statement of law from American Jurisprudence. The privilege is traceable to the “public policy of securing to attorneys as officers of the court, the utmost freedom in their efforts to secure justice for their clients”. The privilege therefore, is absolute.

But for a subtle change made by the House of Lords recently in Arthur J.S Hall and Co. v. Simons, the British precedent would have been identical. Attorneys continue to enjoy absolute immunity in addressing courts during the proceedings from being sued either in civil law or under the criminal dispensation, but this case removed the immunity enjoyed by advocates from being sued for ‘negligence’.

Defended against a civil claim – many Madras High Court decisions

Closer home, on January 1, 1800, the legendary Eardley Norton was sued by Sullivan, a member of Madras Civil Service for defamatory conduct in addressing the members of the jury in a criminal trial. A full bench of five judges of the Madras High Court ruled that Norton enjoyed

The legendary Eardley Norton

The legendary Eardley Norton

absolute privilege from being sued in civil law for damages. In the absence of proof that Norton was actuated by malice and because the allegedly defamatory utterance was not alien or irrelevant to the matter in inquiry, the High Court accepted Norton’s defence, “I acted under my instructions: all I said and did was within the four corners of those instructions and my duty to my client compelled me to say what I said”.

On December 2, 1926, the Madras High Court relied on Sullivan v. Norton and decisions from the Bombay and Calcutta High Courts in Thiruvengada Mudali v. Thirupura Sundari Ammal and ruled that when the statement imputed with defamatory content was made in the course of a necessary line of submission to aid the cause of a client, then even the presence of malice will not override the presumption of good faith. Advocates who have been accused of defamatory conduct are also protected by the Bombay High Court’s decision in Navin Parekh v. Madhubala Shridhar Sharma, which in fact relied on the ninth exception to Section 499 of the Indian Penal Code, 1860.

When “imputation was made in good faith (which is always presumed) for the protection of interest of the person making it, or of any other person, or for the public good”, then such utterance would not amount to defamation. In February 2008, the Madurai Bench of the Madras High Court again rescued an advocate from facing criminal prosecution for allegedly making defamatory statements in the course of pleadings in a suit for partition.

A thinner defence against criminal defamation

All may not be lost for persons affected by such submissions. In its decision in Sanjay Mishra in March 2012, the Delhi High Court drew a subtle distinction between English and Indian law.
While in England, there is total immunity for a counsel for such conduct from being proceeded against either for damages in a civil action or under criminal law, that level of protection os confined to a civil action alone in India. Under the criminal law of defamation, the ninth exception to Section 499 actually enables parties to sue a counsel if they can demonstrate malice or a lack of good faith in the utterance or conduct. That, however, is too thin a line, especially in a case of the kind that the Attorney General was arguing – a one-off case, where the submissions were not too alien either.

Vijayaraghavan Narasimhan is an advocate practicing at the Madras High Court.


Human Rights Supreme Court of India

Intermediary liability – Has the Supreme Court missed an opportunity?

JSaiDeepakpicA lot has been written about the striking down of Section 66A of the Information Technology Act, 2000 (“IT Act”) since the Supreme Court’s verdict on March 24, and rightly so because, as Saikrishna Rajagopal – my senior in the profession – has put it, the provision was crying to be struck down given its draconian language and scope. While vagueness and unreasonableness were writ large on it, the other provision of the IT Act that was read down – Section 79(3)(b), whose constitutionality was challenged solely by the Internet and Mobile Association of India (“IAMAI”) in W.P. (C). 758/2014 in the same batch of petitions – required and still requires attention to nuance.

Not directly permissible under Section 66A? Should not be permitted indirectly under Section 79(3)

This provision, which applies to intermediaries, prior to being read down by the Court earlier this week, used intermediaries as buffers or proxies to impose content restrictions, whose nature and degree were constitutionally impermissible under Articles 19(2) and (6). The argument therefore, that had to be made on behalf of the intermediaries was that, if the nature of a direct restriction on an Internet user’s speech and expression through Section 66A is beyond the pale of Article 19(2) according to the Court, it stands to reason that similar restrictions imposed on a user indirectly through limitations on the content that an intermediary could host, is equally ultra vires Article 19(2). Simply stated, what was not directly permissible under Section 66A, could not be permitted indirectly through Section 79(3)(b) when viewed through the prism of Article 19(2) since the direct and immediate consequence of the restrictions under the latter too was the abridgment of rights under Article 19(1)(a).

To understand this proposition, let’s have a look at a few relevant provisions of the IT Act. The Act defines intermediaries as follows:

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

From the definition, it is clear that the services provided by intermediaries are critical to the use of the Internet, which as the Court rightly recognised in the judgment, has become a “market place of ideas”. The Internet has evolved to become the medium of choice for the expression of social, cultural, and political views outside of the mainstream media. Therefore, intermediaries who facilitate the use of the Internet must be treated as being integral to its ecosystem. Importantly, the Internet as we know it today is increasingly driven by content generated by users. The quantum and scale of such user-generated content has become monumental.

Sample these numbers- almost 360,000 tweets are published on Twitter, 30,000 edits are made to Wikipedia, Facebook users share 684,478 pieces of content and more than 100 hours of video are added to YouTube, all inside a minute. Given these numbers, it is practically impossible for intermediaries to pre-screen content or exercise any kind of ex ante editorial control. This also means that intermediaries cannot vouch for or take responsibility for the legality of the content being uploaded or transmitted or published on their platforms. And yet, in 2004, no less than the Chief Executive Officer of was arrested for an offer made by a user on that portal to sell an obscene video clip.

To address such instances and so that intermediaries are not held liable for the content created or published by their users, the definition of “intermediary” was amended through the Information Technology (Amendment) Act, 2008 to arrive at the current version of the definition. Importantly, Section 79 of the Act, which deals with immunity to intermediaries from liability for user-generated content, was amended to read as follows:


The unreasonableness of ‘actual knowledge’

The provision challenged by IAMAI was Section 79(3)(b), which has two limbs. The first limb relates to a takedown notice issued by a private individual or party, whereas the second envisages a “takedown notice” issued by a government or its authorised agency. Both these limbs give rise to different but equally grave concerns.

The first limb uses the term ‘actual knowledge’, which, although borrowed from the EU Directive on E-Commerce 2000/31/EC dated June 8, 2000, has not been defined in the Indian statute. The legal and operational challenges with the use of the term ‘actual knowledge’ are clinically captured in a study undertaken in the European Union, which was brought to my attention by Rohit Bhat, a Supreme Court advocate, and which was placed before the Court. It notes that the term has been interpreted in quite a few jurisdictions to mean that intermediaries are expected to sit in judgment over the legality or unlawfulness of content impugned in a takedown notice. Clearly, in most instances, it is beyond the wherewithal of intermediaries to evaluate the legality of content. This establishes the unreasonableness of this mandate. Acknowledging the validity of this concern, the Supreme Court read down ‘actual knowledge’ to mean that there had to be a court order directing the intermediary to expeditiously remove or disable access to the impugned content.

The Article 19(2) limitation on the executive’s power to order takedown of content

The second limb of Section 79(3)(b) suffers from the vesting of curial powers in the executive to determine the illegality of content. Importantly, the use of the term “unlawful” in Section 79(3)(b) enlarges the scope of restrictions to beyond the specific categories identified in Article 19(2). In response to this concern, the Court drew parity between the central government’s power to block content under Section 69A and the executive’s power to direct the takedown of content under Section 79(3)(b) and implicitly noted that the limitation of Article 19(2) applied to the executive’s power under both Sections 69A and 79(3)(b). This is perhaps the most positive outcome on the issue of intermediary liability because by reading in Article 19(2) to restrictions imposed on intermediaries under Sections 69A and 79(3)(b), the Court has accepted the argument of the intermediaries that the test to be applied to any law is whether it directly impacts free speech, regardless of who such restrictions may be applied through, which was done through intermediaries in this case. Importantly, even if such restrictions are imposed in return for immunity to intermediaries under Section 79(1), such perceived largesse to intermediaries does not legitimise the transgression of the boundaries set by Article 19(2). This, the Court recognised with abundant clarity.

The problem of executive competence to issue takedown notices without effective appeal

Having said that, although the Court limited the scope of the application of Section 79(3)(b) by the executive to the categories under Article 19(2), the fundamental question of the executive’s constitutional competence to direct such takedown was not addressed, perhaps because the Court was already convinced of such competence under Section 69A. Even if that be the case, the de minimis procedural safeguards provided for under Section 69A and the blocking rules made under that provision, or under Sections 95 and 96 of the Code of Criminal Procedure, 1973 ought to have been applied to Section 79(3)(b) as well, since there is no opportunity for a hearing either for the intermediary or for the creator of the content prior to the issuance of such a notice, nor is there a provision for appeal under the Act from an executive notification directing takedown (except for a writ petition). Having duly taken note in detail of the procedure laid down for blocking under Section 69A, the Court ought to have applied the same yardstick and due process to Section 79(3)(b).

Section 79 was designed as a safe harbour provision - one that protected Internet service providers from the consequences of their users' actions. The March 24 judgment has made this safe harbour more meaningful.

Section 79 was designed as a safe harbour provision – one that protected Internet service providers from the consequences of their users’ actions. The March 24 judgment has made this safe harbour more meaningful.

Critically, in its analysis of Section 66A, having recognised the reader’s right to receive information or content, the Court ought to have taken note of the adverse effect of an executive takedown notice, albeit within the metes and bounds of Article 19(2), on the right of the Internet audience to receive content. Had these concerns been addressed, the judgment would have been far more comprehensive as far as Section 79(3)(b) is concerned and importantly, it would have made India a much more attractive destination for investments by intermediaries given the potential of the internet economy and e-commerce.

No discussion on Rules 3(2)(b) and 3(2)(f) of the Intermediaries Guidelines

Apart from Section 79(3)(b), the IAMAI, along with, also challenged the Information Technology (Intermediaries guidelines) Rules. Specifically, Rule 3 was challenged since Rules 3(2)(b) and 3(2)(f) are near identical in their language to the various limbs of Section 66A, and Rule 3(4) prescribes the procedure for takedown mandated by Section 79(3)(b). To the extent that the Court has read down Rule 3(4) in the same manner and to the same extent as it did with Section 79(3)(b), it attracts the same pros and cons. As regards Rules 3(2)(b) and 3(2)(f), the Court could have struck them down for the very same reasons it has struck down Section 66A. However, there is no discussion on the content-related restrictions imposed by these sub-Rules despite them being extracted in Para 112 of the judgment. That said, since Section 66A has been struck down and since Section 79(3)(b) and Rule 3(4) have been encumbered by Article 19(2), effectively Rules 3(2)(b) and 3(2)(f) have also lost their potency.

Thus, although the Court has addressed some of the primary concerns of intermediaries relating to Section 79(3)(b) and made more meaningful the immunity granted to them under Section 79(1), the Court could have dealt with the other equally important concerns which have a concrete and critical bearing on the intermediary liability regime in India. Perhaps, the egregious language and consequence of Section 66A drew the Court’s attention much more than the layered issues posed by Section 79(3)(b) and the Intermediary Rules. After all, out of 122 pages of the judgment, 109 pages have been devoted to Section 66A and a like provision of the Kerala State Police Act. Only paragraphs 112 to 118 deal with the issue of intermediary liability. Paragraph 119 contains the Court’s conclusion.

This is not to deny that the judgment is a welcome one and is expected to further the democratisation of the Internet in a tangible manner. However, given the opportunity that these writ petitions represented in undertaking a comprehensive overhaul of the IT Act on a range of related issues, each of which has a critical bearing on freedom of speech and expression on the Internet, it appears that the Supreme Court has passed up a wonderful opportunity. One wonders whether such an opportunity will present itself again.

J. Sai Deepak, an engineer-turned-litigator, is a Senior Associate in the litigation team of Saikrishna & Associates. He is @jsaideepak on Twitter and the founder of “The Demanding Mistress” blawg. He was part of the team that represented a consortium of Internet intermediaries, namely the Internet and Mobile Association of India, in the Supreme Court of India in W.P.(C) 758/2014 which challenged Section 79(3)(b) and the Intermediary rules. Saikrishna Rajagopal of Saikrishna & Associates argued the petition. All opinions expressed above are academic and those of J. Sai Deepak.

Human Rights Supreme Court of India

“I know it, when I see it” – The limits of the law in finding illegality in obscenity

AparGupta_freedomofspeechThe recent legal prosecution of AIB, a stand-up comics collective, has thrown open the debate on obscenity standards. In its show, AIB used cuss words and made express sexual innuendos. It was plainly visible that they were challenging, even if unwittingly, not only the conventional social mores but also the thresholds of obscenity law. Many see their prosecution as unfair and unequitable and evidence of greater intolerance in Indian society. Many have also questioned the law that formed the basis for the prosecution. It has been described as vague, indeterminate, and providing a ground for complaint to the least tolerant.

This is properly a debate on the legal standards used to determine obscenity. As opposed to a debate on the necessity of the offence of obscenity itself. This article focusses on examining arguments for greater certainty in the legal tests for determining obscenity and seeks to build towards a more ambitious proposal, that legal tests and criteria cannot define obscenity to any reasonable certainty. Its moral desirability, even in the face of such subjectivity, is of course a choice left for the legislature.

The Hicklin test

The legal standards governing obscenity arise from the case of Ranjit Udeshi v. State of Maharashtra where the Supreme Court of India interpreted Section 292 of the Indian Penal Code, 1860. Though Section 292 only criminalises printed materials, its definition of obscenity is utilised in other criminal provisions such as Section 294, which criminalises obscene speech and songs. In Ranjit Udeshi, a five-judge bench of the Supreme Court of India adopted the Hicklin Test laid down in the case of Regina v. Hicklin by Justice Cockburn.

D.H. Lawrence's classic novel, the subject of controversy in Ranjit Udeshi's case.

D.H. Lawrence’s classic novel, the subject of controversy in Ranjit Udeshi’s case.

The test relies on gauging the content with respect to its tendency to deprave or corrupt. This depravity is reasoned to result from the content evoking or opening a person’s mind to any eroticism or sexual arousal. Finally, the test is not gauged from the perspective of an adult, but those minds which are open to such “immoral” influences. In a sense, its objective remains the infantilising of an adult mind. Our Supreme Court, while adopting this test, made slight modifications indicating that, “community standards” have an important bearing in adjudicating the legality of content as well. The case acknowledged that such obscenity can be part of a longer movie or song, but it had to, “remain in the shadows”. It is not without reason that old Bollywood movies contain visual innuendos, of a shaking bush or a rocking bed to represent love making.

The test by itself, on its very face, seems vague and incomprehensible and this seemed to be within the contemplation of the judges as well. They wrote in the decision itself that the “court must, therefore, apply itself to consider each work at a time.” In a sense, this revolts against the necessity of giving adequate notice to authors and artists.

This subjectivity became visible when the Supreme Court, in the case of C.K. Kakodar v. State of Maharashtra, applied the Hicklin Test. To gauge the obscenity in a story, it examined the theme of the story, the main protagonists, and the “artistic merit” in it. Explaining its approach, the Court stated that its duty was to “ascertain whether the book or story or any passage or passages offend the provisions of S. 292”. This implicitly recognises that it requires highly trained judicial minds which seek to balance competing interests to gauge whether a work is not obscene, and has, “artistic merit”. Again disposing of the petition and holding in favour of the author, the Court made reference to the contemporary morals of Indian society, which it also noticed, were “fast changing”. A convenient result therefore, backed by unfortunate reasoning.

Limiting the Hicklin test

It is not as if the criticisms of such an ad-hoc and content-by-content approach were not felt by the Court. In the same year as the Kakodar case, the Supreme Court made express reference to Udeshi’s case, when called to adjudge the legality of the pre-censorship of movies. The petitioners in K.A. Abbas v. Union of India argued that the mandatory certification necessary to any prior exhibition by the Cinematograph Act was unconstitutional as a prior-restraint. The Court, while holding the Act constitutional, laid down some guidelines that in its view, afforded reasonable safeguards. In its penultimate paragraph however, it contained some criticism that indicated a small but significant realisation that the law by and large contained vague obscenity standards. Its prescription revolted against any liberal conception of censorship, stating that Parliament should legislate more, as if to clinically separate the obscene from the moral. As we go along, we will discover the limits of law and of judicial eloquence to regulate the arts.


After an interregnum of about five years, the Supreme Court, in Samaresh Bose v. Amal Mitra, again faced its precedent and marked a significant departure from it by seeking to limit the applicability of the Hicklin test. Rather, it sought to make community standards the overreaching or controlling criteria to gauge obscenity. The Court in its inquiry, first focussed on certain prongs devised under a community standards grouping and only after this, did it proceeded to a pure analysis of obscenity under Section 292 and the Hicklin test. This was achieved by the Court stating that in order to determine the offence of obscenity, the judge should first place themselves in the position of the author to gauge the literary and artistic merit and thereafter place themselves in the position of a reader of every age group, not only children and those open to influences. Only after this should the inquiry on the Hicklin test proceed. This test or the tiered approach to gauge illegality appears persuasive, however again, in practice, requires subjective, content-by-content determinations.

bandit-queen-movie-poster-1994Even though the test in Samaresh Bose has not been followed, courts have evenly sought to apply its variations to gauge the artistic merit in a work while determining obscenity. In Bobby Art International, Etc v. Om Pal Singh Hoon, the Supreme Court, while adjudicating the appropriateness of the movie Bandit Queen being given a Central Board of Film Certification (“Censor Board”) certificate with an “A” rating, exhaustively analysed the theme of the movie. The Court held that the objections of the Censor Board that the movie depicted social evils could not be sustained as it was unavoidable in a movie which showed the consequent harm caused by it. Further, in Director General, Directorate v. Anand Patwardhan, the Supreme Court directed Doordarshan to screen the respondent’s documentary Father, son and Holy War and in doing so, sought to expressly apply “community standards” while not expressly overruling the Hicklin test.

The resultant confusion in standards which may be applied to obscenity is evident from the Supreme Court’s reasoning in Ajay Goswami v. Union of India. These tests, which are chronologically listed, are prefaced in the judgement as “broad principles”. Not only are these principles broad, but their girth seems to have increased with time. Though the judgement in terms of legal articulation correctly notices past precedent, it also makes it evident that India, for a long period of time, had several legal standards to gauge obscenity, permitting subjectivity and preventing adequate notice of illegality to artists and authors.

Express adoption of community standards

This position in law seems to have undergone a dramatic change last year, with the Supreme Court ruling in Aveek Sarkar v. State of West Bengal. The ruling expressly discards the Hicklin test, stating that it is not good law. In its place, it adopts the more liberally oriented “community standards” test. However, the manner in which the Court applies the community standards test itself gives cause for concern. If one reads the judgement, the Court again examines the content in question and the social merit in the publication. Again, the result may be liberal, but the reasoning itself may only be a modest improvement on the Hicklin Test.

This is not to say that the express adoption of the community standards test in the Aveek Sarkar case is not cause for hope, however its promise is limited. While it does signify an express statement from the Supreme Court recognising the need for the greater liberty of artists and authors, it maintains the necessity for “artistic merit” or social need. The application of the community standards test can also be criticised on several other grounds but the major criticism is that it again permits subjectivity and a value-driven assessment by our higher judiciary.

Again, it needs to be emphasised that the High Court of Delhi has in two recent cases, by the application of Aveek Sarkar, refused to prohibit the exhibition of movies with Censor Board certificates. In both instances however, the Court gave substantial credence to the legality of the movies on the basis of the certificate for exhibition issued by the Censor Board. In the first case, Nandini Tewari and Another v. Union of India, the Court was asked to prohibit the exhibition of the movie Finding Fanny due to the name of the movie itself. The Court examined the term “fanny” as well as the term as it appeared in the dialogues of other movies in the past. It not only applied the Aveek Sarkar case but even earlier precedent to implicitly form a “community interest” and an “anticipated danger” test.

In the second case, Ajay Gautam v. Union of India, the High Court examined the contents of the movie PK, which the petitioner complained, mocked the Hindu religion and hence should be prohibited from exhibition. The Court again substantively appreciated the movie in question, heavily relying on the prior existence of a Censor Board certificate, and the nature of the movie, that is, a parody. Though the case is not per se concerned with obscenity, precedent on obscenity is bundled with larger free speech jurisprudence including the, “clear and present danger” test.

The limits of law

A review of legal precedent suggests that both the Hicklin test and the community standards test are not only fallible in some isolated instances but by their very nature permit subjectivity and value-based assessments. It has been my firm belief that any moral harm that is supposed to originate from movies, songs, paintings, or any other form of creative art is illusory. This moral harm is at the core of any justification for the offence of obscenity. Even if such an outlook is not shared by others, it is evident that obscenity to a large degree is a vague concept which will rely on a case-by-case determination, dependent on the facts of each case, in which a judicially trained mind (as opposed to an artistically inclined one) will examine the artistic merits and the potential illegality.

Though Indian case law to a large degree has drawn inspiration from the First Amendment precedent of the United States Supreme Court, it has failed to notice the dissent of Justice Brennan in Paris Adult Theatre I v. Slaton. Justice Brennan’s eloquence lays evident the limits of law, as it seeks to balance any purported moral harm with the liberty of artists. To end it is quoted below:

“Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our [p84] failure to reach a consensus on any one standard. But, after 16 years of experimentation and debate, I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and, on the other, the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as “prurient interest,” “patent offensiveness,” “serious literary value,” and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we “know it when [we] see it,” Jacobellis v. Ohio, supra, at 197 (STEWART, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.”

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)

Human Rights Supreme Court of India

On Shreya Singhal: Section 66A is too broad, vague, and will chill free speech

GautamBhatia_SupremeCourtofIndiajpgIn the second half of December 2014, the Supreme Court began to hear a series of challenges to various provisions of the Information Technology Act of 2008 (“IT Act”). Hearings will commence again when the Court reopens in January after the winter break. The batch of petitions, clubbed under Shreya Singhal v. Union of India, impugn – inter alia – the constitutional validity of Section 66A of the IT Act.

Section 66A has attained a degree of notoriety in recent times, having been used to arrest people for posting (and liking) Facebook comments, for critical political speech, and so on. Section 66A is largely borrowed from the English Communications Act (the scope of which has been severely curtailed after allegations of abuse), and was originally intended to tackle spam and online harassment. It hardly bears repeating that its implementation has gone far beyond its objective. Beyond poor implementation, however, there is a strong case for the Court to hold at least part of Section 66A unconstitutional, on the ground that it violates the freedom of speech guarantee under Article 19(1)(a) of the Constitution.

Among other things, Section 66A criminalises the sending, by a computer resource or a communication device, any information that is “grossly offensive” or has a “menacing character” (S. 66A(a)), as well as the sending of “any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience.” The components of the offence, therefore, include online speech that is “grossly offensive”, “menacing”, or causes “annoyance” or “inconvenience”.

Legitimate restrictions permitted on the fundamental right in Article 19(1)(a)

The State’s authority to legitimately restrict speech can be sourced to Article 19(2) of the Constitution, which allows for the State to impose, by law, “reasonable restrictions on the freedom of speech 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.” S. 66A’s restrictions might be connected with three of these concepts: public order, decency or morality, and defamation.

In a series of cases, the Supreme Court has made it clear that the connection between “public order” and a free speech restriction ought to be proximate, like that of a “spark in a powder keg”, and not far-fetched or remote. Clearly, while certain forms of offensive or menacing speech might, at some point, lead to a public order disturbance, the connection is anything but proximate. Similarly, the “decency and morality” prong has been invoked to deal with cases of obscenity, where the offending work appeals solely to the prurient interest, as seen from the point of view of the reasonable, strong-minded person. And lastly, the ingredients of defamation are highly specific, and much narrower than causing offence or annoyance – they are limited to lowering the reputation of the plaintiff in society (subject to certain defences).

Over-breadth and disproportionate restrictions

IMediaLawst is therefore clear that certain terms of Section 66A suffer from the vice of “overbreadth”, that is, they authorise the restriction of expression that the government is entitled to prohibit, as well as that which it is not. In Chintaman Rao v. State of Madhya Pradesh, the Supreme Court, while striking down certain restrictions on agricultural labour under Article 19(1)(g) of the Constitution, held that “the law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. 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 void.” In other words, as far as fundamental rights are concerned, over-breadth is constitutionally fatal to a statute. This conclusion is further buttressed by the fact that in State of Madras v. V.G. Row, the Supreme Court also held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of the right alleged to have been infringed, the underlying purpose of the restrictions 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.” Proportionality and over-breadth are closely linked: if a statute proscribes conduct that is much broader than what is permitted under Article 19(2), on the ground that there is some – tenuous – connection between the two, there is good reason to argue that the restriction is disproportionate.


In addition to over-breadth, the provisions of Section 66A suffer from an additional problem: that of vagueness. “Menacing”, “annoyance”, “inconvenience” and “grossly offensive” are all highly subjective, and open to numerous varying interpretations depending upon individual and diverse standpoints. Their scope and boundary are both large and ill defined. Consequently, they create a zone of uncertainty for Internet users. What kind of speech might land you in trouble? It is hard to tell.

Vagueness is constitutionally problematic. In Kartar Singh v. State of Punjab, the Supreme Court – citing American precedent – observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values… 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.” Thus, the twin problems of uncertainty and impermissible delegation to the executive, are inextricably connected with vague statutes.

Image is from Tyler Menezes’ photostream on Flickr. CC BY-SA 2.0.

Vague and over-broad statutes are especially problematic when it comes to free speech, because of the chilling effect that they cast upon speech. As the Court put it in Kartar Singh, “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”.” When faced with uncertain, speech-restricting statutes, citizens are likely to self-censor, in order to ensure that they steer well clear of the prohibited line.

In the Shreya Singhal petitions, the Supreme Court will be faced with the choice of striking down Section 66A, or reading it down and (perhaps) issuing guidelines aimed at checking abuse. There is no doubt that the objectives of preventing scam and protecting Internet users against cyber-harassment and online bullying are important. But there are other parts of Section 66 that can be used to curtail such activities. If the Court is not minded to strike down Section 66A in its entirety, it ought to at least sever the words that have the greatest and most unbounded catchment area, and are most prone to abuse, and excise them from the statute.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)

Human Rights Supreme Court of India

Five instances where judges considered the use of criminal contempt for criticism of their integrity

PraptiPatelRecently, a Delhi High Court judge initiated contempt proceedings against a legal news magazine that published a report which claimed that a nightclub in the capital was allowed to remain open beyond the licensed closing time because the judge’s son had an interest in the club.

‘Criminal contempt’, defined under Section 2(c) of the Contempt of Courts Act, 1971 as a criminal offence, is the act of communicating, either through spoken or written words or other visible representations, something that, among other things,

scandalises, or tends to scandalise, or lowers, or tends to lower, the authority of any court. Under Section 12 of the Act, criminal contempt can be punished with simple imprisonment up to six months or a fine up to Rupees Two thousand or both.

The somewhat old-fashioned rationale behind this power is that in order for the judiciary to carry out its functions, it was essential for the courts to be perceived as fair and unbiased. Let us look at five instances where courts have used this power to penalise communication in the media that has been critical of the integrity of judges.

1. Perspective Publications v. State of Maharashtra (1968)

Blitz, a weekly newspaper, had lost a suit in which a firm of architects claimed damages of Rs. 3 lakhs from them. Justice Tarkunde of the Bombay High Court had passed the decree. Later, an article that appeared in a publication brought out by Perspective Publications and written by its editor, alleged that the judgment had been decided in favour of the firm because Justice Tarkunde’s father, brother, and other relatives were partners and had a large pecuniary interest in the firm. They were found guilty of contempt of court and sentenced to a month of simple imprisonment and a fine of Rs. 1000. “The publication of a disparaging statement”, Justice Mukherjee held “will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.”


2. In Re S. Mulgaokar (1978)

A letter was circulated among judges of the Supreme Court and the High Courts on drafting a code of ethics for judges. The Indian Express published the details of the letter and also commented on the character of the judges, specifically referring to some who lacked ‘moral courage’. The suit was dismissed and the article was not held to amount to contempt of court. Justice Krishna Iyer laid down six principles to determine if the publication of some matter amounts to contempt of court.

3. Court On Its Own Motion v. M.K. Tayal and Others (2007)

yksabharwalMid-Day published an article with a cartoon which alleged that Justice Y.K. Sabharwal, a former Chief Justice of India had headed a Supreme Court bench which passed certain orders in the matter of sealing off commercial establishments in residential areas even though the sons of the Chief Justice had a vested interest in those commercial establishments. The article cast aspersions on the soundness of the judgement and imputed that the sons had benefitted from it. Following the publication, senior advocate R.K. Anand had submitted a copy of the paper to the Court and accused the newspaper of scandalising the judge and the Court. The Court took suo moto cognizance of the matter and the newspaper’s editor, publisher, resident editor, and cartoonist were held guilty of contempt of court. “The manner in which the entire incidence has been projected”, the Court held, “gives the impression as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members. It tends to erode the confidence of the general public in the institution itself.”

4. Dr. Subramanian Swamy v. Arun Shourie (1990)


Justice Kuldip Singh, then a judge of the Supreme Court, was appointed the chairman of a commission of inquiry to probe into allegations of corruption against Ramakrishna Hegde, the former Chief Minister of Karnataka. When the commission released its report, it refuted all the allegations. The Indian Express published an article titled “If Shame Had Survived”, criticising the report for being “deferential” to the Chief Minister and accusing Justice Singh of “inventing theories and probabilities” to argue against the allegations. The article also highlighted how Justice Singh had failed to include the evidence of the key witness in the case and said that “If there had been any sense of honour or shame, a Judge would never have done any of this.” Subramanian Swamy filed a contempt petition against Arun Shourie, who was the editor of the newspaper, contending that the editorial was a scandalous statement in respect of a sitting judge of the Supreme Court. Even though the Court took suo moto cognizance of the matter, the petitions were dismissed, partly because the law was amended during the course of the proceedings to include truth as a defence and partly because Justice Singh, as member of a commission of inquiry, was not a court for the purposes of the contempt law.

5. Shri Surya Prakash Khatri & Another v. Smt. Madhu Trehan and Others, 2001

A fortnightly magazine called Wah India published an article listing fourteen judges of the Delhi High Court and evaluated them on parameters of punctuality, knowledge of the law, integrity, quality of judgments, manners in court, and receptiveness to arguments. The evaluation was apparently based on a survey that took in the opinions of fifty “senior lawyers”. The Delhi High Court issued a notice against the magazine’s Editor-in-Chief and directed the Delhi police to ensure that copies of the allegedly offensive issue were withdrawn from newsstands and the shops that sold it. Copies of the issue that had not been circulated were thus seized and confiscated. The Court held that prima facie contempt had been committed by the respondents because the ranking of the judges amounted to scandalising the judiciary. The Court also refused the apologies that were tendered by the accused.

The law on criminal contempt of court in India has been invoked against the press several times because of perceived insults to the judiciary. In Germany, France, Belgium, Austria, and Italy, however, there is no concept of criminal contempt of court and the only options that the judges have are in their personal capacity: either file a criminal complaint or institute an action for libel. In the United Kingdom, even though the criminal offence was only abolished in 2013, the last successful prosecution happened in 1931. Various Indian judgments on the issue have been quick to point out that “scandalising the judiciary” amounts to contempt under the statute but isn’t it time that the judiciary made a conscious move to give a more liberal interpretation to the law? Healthy debate and criticism are necessary in a democracy and there is no reason the judiciary should be above it.

(Prapti Patel is a student of the Indian Law Society’s Law College in Pune.)