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.)


Supreme Court wrong to cite contrary personal law as basis for rejecting a fundamental right to adopt

ShadanFarasat_SupremeCourtofIndiaIn a recent decision, Shabnam Hashmi v. Union of India, (2014) 4 SCC 1, a three-judge bench of the Supreme Court upheld the right of a Muslim couple to adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 (“JJ Act”). The question posed sharply before the Court was whether a Muslim couple should be allowed to adopt children under the JJ Act even though Muslim personal law as applicable in India only provides for the Kafala system, under which a child can be put under the care of a Kafil, who provides for the well-being and care of the child while the child remains the descendant of the biological parent and not the adoptive parents. The implication of adoption under the JJ Act is that the adoptive parent is treated just like the biological parent of the child and biological parent ceases to be the parent of the adopted child.

LR-BlogAdThe petitioner, a social activist, approached the Supreme Court directly under its writ jurisdiction by filing a PIL and seeking a dual declaration that:

1. Muslims can adopt a child with full rights as natural parents under the provisions of Section 41 of the JJ Act, and that

2. the right to adopt a child be declared a fundamental right.

Speaking for the Division Bench, Justice Ranjan Gogoi’s judgment answered the first question in the affirmative, holding that prospective parents can either employ the provisions of Section 41 to adopt a child or submit themselves to their applicable personal laws. Personal laws however, cannot dictate the operation of the provisions of an enabling statute like the JJ Act and cannot come in the way of a person who chooses to adopt a child under JJ Act. In effect, the Supreme Court gave Muslim parents the choice to adopt either according to their personal law or according to the JJ Act.

This approach, of giving the affected individuals an option to choose between the personal law and the applicable statutory law is a mechanism that can be easily used to harmonise many cases of conflicts between personal law and statutory law that go beyond the issue of adoption.

Despite having developed this methodology, surprisingly, the Court found its own approach to be an interim measure, until the professed goal of the Uniform Civil Code under Article 44 of the Constitution is achieved.  The court observed:

“To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.”

While this approach is sensitive to the country’s many faiths, it nevertheless presupposes that the UCC is a constitutional goal that should be achieved, even if in the distant future. Applying the same thread of reasoning, it answered the second question about whether the right to adopt is a fundamental right of all citizens under Article 21 in the negative. It reasoned that:

“The Fundamental Rights embodied in Part-III of the Constitution constitute the basic human rights, which inhere in every person and such other rights which are fundamental to the dignity and well being of citizens. While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country.”

The opt-in-or-opt-out approach should not have been treated by the Court as an interim measure towards the end of achieving the UCC. It is common knowledge that religious personal laws are strongly wedded to the religious-cultural identity of religious minorities in India, particularly the Muslims. Any attempt to change that using the UCC will be viewed by the concerned religious minority as a majoritarian excess and likely to create only conflict without in any manner enhancing the legal rights of the intended beneficiaries. The fact that the biggest vanguards of UCC in India are those on the extreme political right, whose support for UCC is intended to diminish the religious-cultural identity of the religious minorities rather than empower gender groups within them, calls for a substantial judicial and societal rejection of the UCC route to reform of personal laws.

ladakh - jammu kashmir - indiaThe reform of personal laws, on the issues where it is necessary, from within the Muslim community, in particular through pressure from Muslim women and men on the Personal Law Board, is possibly the most democratic and effective means to achieve the change in Muslim personal law in India. The mechanism of opt-in-or-opt-out of statutory law and personal law adopted by the Supreme Court can co-exist with the personal law without in any manner characterising it only as an interim measure.

For the same reason, the rejection of declaration of the right to adopt as a fundamental right because requisite consensus is not there, is in my view, not the ideal basis of rejecting this as a fundamental right. When the statue provides for a right, which can be accessed by one and all, there is no need to declare that right also as a fundamental right, unless there is a threat to that right from the legislature itself (which is not present in this case).

In fact, by allowing Muslim couples to adopt under statutory law despite the existence of a conflicting personal law, but using that same conflicting personal law as a basis for not declaring the right to adopt as a fundamental right shows the inherent contradiction in the judgment in answering the two questions posed before it.

Thus, if the Court did indeed have to decline from declaring the right to adopt as a fundamental right, the lack of necessity for such declaration, rather than existence of contrary personal law would have been a much better basis.

(Shadan Farasat is an Advocate-on-Record at the Supreme Court of India.)

Human Rights

A judgment very much in error — Part 2 (Dignity, privacy, and reasonableness)

Article21_ProtectionOfLifeAndPersonalLiberty_ConstitutionofIndia.jpgThe Delhi High Court had concluded that interpreting Section 377 to include consensual acts between adults violated Article 21. The Court had reasoned that not doing so would result in:

Violation of the right to dignity, which is part of the right to life, as interpreted by the Supreme Court. The High Court provided a Kantian colour to the meaning of ‘dignity’, stating that “at root of the dignity is the autonomy of the private will and a person’s freedom of choice and of action”, and that “Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.

NoticeAndStayAdityaVerma_SupremeCourtcolumnViolation of the right to privacy, which is part of the right to life, as interpreted by the Supreme Court, and internationally. The right to privacy thus has been held to protect a “private space in which man may become and remain himself”, and “privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to one’s sexuality is at the core of this area of private intimacy.

The law being unreasonable, as no compelling state interest was proved — this is a requirement under Article 21 as interpreted by the Supreme Court for validity of a law curtailing personal liberty. The high incidence of HIV/AIDS among male homosexuals and their medical treatment to ‘cure’ them of homosexuality were raised as arguments to show a compelling state interest in support of criminalisation. These arguments were rejected in the face of contrary evidence (from the National Aids Control Organisation and the Ministry of Health) that criminalisation actually increases health risks by driving affected individuals underground where they are susceptible to severe harassment, and psychological studies indicating that homosexuality is not a ‘disease’. ‘Reasonableness’ therefore, was not proved, especially as the State admitted that Section 377 was not enforced against homosexuals in practice, which betrayed the absence of a genuine public health interest. Popular morality against homosexuality, it was also argued, provided a compelling state interest in criminalising it. This argument was rejected as popular morality is distinct from constitutional morality, and only the latter can be used to restrict fundamental rights. Mere disapproval is not a sufficient reason for criminalising an activity.

Again, there were three distinct grounds (highlighted in bold above) in relation to life and personal liberty on the basis of which the High Court interpreted Section 377 to exclude carnal intercourse between consenting adults in private. In order to set aside the judgment of the High Court, it was necessary for the Supreme Court to conclude that each of these grounds was fallacious.

Analysis of the Supreme Court judgment in relation to life and personal liberty (Paragraphs 45 to 49 and 52 to 53)

In Paragraph 45, the judgment recognises that Article 21 requires laws to be just, fair, and reasonable. Paragraphs 46, 47, and 50 acknowledge that privacy and dignity are within the ambit of Article 21.

In Paragraph 48, a case is cited in the context of reproductive rights and abortion to demonstrate that while a woman has full control over her reproductive rights under Article 21, the right to abortion is not absolute. The conditions for abortion specified in the Medical Termination of Pregnancy Act, 1971 are reasonable given the “compelling state interest in protecting the life of the prospective child”. The judgment does not discuss how this case provides a sufficient analogy to establish a compelling state interest in criminalising consensual penile–non-vaginal intercourse.

In Paragraph 49, another case is cited in the context of the medical duty of confidentiality of patients. Recognising that although a patient has a general right of privacy, the duty of confidentiality does not prevent a doctor from informing the patient’s wife-to-be that he (the patient) is HIV+. Again, there is no discussion how this analogy is relevant in to consensual penile–non-vaginal intercourse.

Needless to say, in contrast to the examples in Paragraphs 48 and 49, the existence of consent and the absence of harm would be distinguishing factors.

Out of the three challenges under Article 21, the judgment only attempts to deal with ‘reasonableness’ and ‘existence of a compelling state interest’. The challenges under the right to privacy and the right to dignity are not refuted.

In Paragraphs 52 to 53, the judgment cites other cases to the effect that judgments from foreign jurisdictions need not necessarily be adopted by Indian courts. This is correct, The reliance on foreign judgments by the High Court however, was only to develop persuasive reasons within the framework of the requirements of the Indian Constitution, and not as an appeal to formal authority. Without addressing the arguments on privacy and dignity, disapproving the reliance on foreign judgments and using it to set aside the judgment of the High Court is a case of missing the forest for the trees.

There were six distinct constitutional challenges to the existing interpretation of Section 377 – three each under Articles 14 and 15 (which I wrote about in the first part of this article) on one hand, and Article 21 on the other. To set aside the judgment of the High Court, the Supreme Court had to refute each of these six challenges. To say it fell short of doing so in respect of any of them is an understatement.

Amidst signs of a possible political solution to negate the effect of the judgment, it is clearly not a stage where something like a ‘jail bharo’ campaign would appear to be a conscientious imperative to force a change in an unjust law. It would be ideal that the Supreme Court sets right this constitutional malady on its own in review or curative proceedings.

The next part of this article will look at the debate around the presumption of constitutionality of laws and judicial overreach.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

Human Rights Supreme Court of India

Koushal — An ADM Jabalpur moment for the Supreme Court

Manish_jimanishThe Supreme Court’s decision in Suresh Kumar Koushal v. Naz Foundation is a disappointing and dangerous failure to fulfil its obligation to uphold the Constitution and protect the fundamental rights of citizens. With shallow and unsatisfactory analysis, seemingly grounded in inexplicable and excessive deference to the legislature, the Court set aside the decision of the Delhi High Court. That decision had read down Section 377 of the Indian Penal Code, 1860, in its application to consenting adults, as being in violation of Articles 14, 15, and 21 of the Constitution of India.

Locus standi of the respondents

The very premise of the appeals was fragile. The respondents at the Delhi High Court (that is, the State) did not choose to appeal the decision. The point of locus standi of the various individuals who filed the appeal was raised in arguments before the Supreme Court, but the Court did not even consider this issue, despite good precedent existing for it to do so.

Baffling deference to legislative superiority

The judgment adopts an unusually — and, it is submitted, wholly incorrect — deference to legislative superiority, beginning with a warped discussion on the presumption of constitutionality. Strangely, the Supreme Court relies on the Criminal Law Amendment Act, 2013 to suggest that Parliament did not intend to amend Section 377 (Para 32).

The fact that the State had chosen not to appeal, and the submissions of the Attorney General (who argued as amicus curiae that the State did not find any error in the decision) (Para 21), seem to have been conveniently ignored. Why a Court that has stepped into the domain of the legislature and the executive, legislating and enforcing policy on several occasions, showed such reluctance to exercise what is undoubtedly its assigned Constitutional function — that of upholding the Constitution and protecting the fundamental rights of citizens — is beyond baffling.

Setback for the Court’s fundamental rights jurisprudence

The worst part of the Court’s reasoning is found in Paragraphs 42 and 43. In Paragraph 42, the Court blandly states, “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes…” As to what constitutes the acts in each category, the court gives us no indication whatsoever. The fact that there has to be an intelligible differentia, clearly does not seem to matter to the Court. According to the Court, there exists some classification and that seals the question of any violation of Article 14. The arbitrariness doctrine is not dealt with. The Court does not even bother with Article 15(1) — notwithstanding that the Delhi High Court had made a significant Constitutional point in treating sexual orientation as an “analogous ground” to sex.

More follows in the next paragraph:  “…the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.” In one fell swoop, the Court demolishes over sixty years of jurisprudence and constitutional values, suggesting that minorities are second-rate citizens, not entitled to any constitutional protection under Part III.


Besides setting a dangerous precedent in terms of taking a majoritarian view in respect of Constitutional protection, the judgment has worrying implications. Another Bench of the Supreme Court has reserved judgment in a writ petition seeking the recognition of transgender rights. It is unclear what impact the decision in Koushal will have on that case. Further, Section 377 is a cognizable offence, and in light of the recent Constitution Bench judgment in Lalita Kumari that made FIR registration mandatory, re-criminalising it opens the door to frightening possibilities of misuse and intimidation (factors that, incidentally, the Court dismissed as irrelevant in Koushal).

The most inexplicable part of the judgment is the reasoning on Article 21. From Paragraphs 45 to 50, the Court devotes considerable space to this, quoting generously from several of its previous judgments. Then, abruptly, it moves on, without any conclusion whatsoever. Whether there was a paragraph that was accidentally deleted, or whether the Court deliberately chose to leave this question hanging, we will probably never know.

The Supreme Court also berates the High Court for its reliance on international and comparative jurisprudence in what it terms “anxiety to protect so-called rights of LGBT persons”. The careless and hurtful wording aside, it is extremely disappointing that the Supreme Court never bothers to substantively engage with the reasoning of the High Court, much of which drew from Indian precedent and the Constituent Assembly Debates while interpreting the Constitution.

Pratap Bhanu Mehta, writing in the Indian Express, termed the decision “morally regressive” and “constitutionally dubious”, stating that it would be “remembered in infamy as one of those decisions that, like Dred Scott, show how liberal democracies can sometimes give rein to a regime of oppression and discrimination under the imprimatur of law”. A press release by LGBT organisations suggested that it was the Supreme Court’s ADM Jabalpur moment of the twenty-first century.

At the time of writing this, efforts to file a review petition against the decision were in progress. Meanwhile, the ruling political coalition was reported to have opposed the order, and an ordinance is apparently being considered to amend Section 377. It will be a sad day indeed for the Supreme Court if it is Parliament that shows greater resolve in protecting fundamental rights and upholding the Constitution.

(Manish is a Researcher at the National Law University, Delhi.)

Human Rights Supreme Court of India

Section 377 — Supreme Court has failed in its fundamental duty to protect fundamental rights

Today, one day after World Human Rights Day, India’s most progressive and respected institution has stained its proud record of protecting and advancing citizens’ rights — perhaps indelibly.

In 2009, the Delhi High Court in an inspired verdict, that decriminalised homosexuality, had said:

“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality, which will foster the dignity of every individual.”

Today, after a long, convoluted appeals process that stretched over four years, the Supreme Court of India overturned the Delhi High Court’s 2009 judgment, thereby re-criminalising gay relationships. In doing so, the Supreme Court of India stands apart — in disgraced isolation — from the judiciary in every other democracy in the world — including developing countries like South Africa, Nepal, Mexico, and Brazil.

In throwing the ball back to the executive branch, the judges sought to couch their decision in terms of showing constitutional deference for the role of the executive. The Supreme Court however, has never shown hesitation in striking down central and state laws and has been perfectly willing to create laws (mostly good) out of thin air, such as the recent judgment banning criminals from contesting elections. In this particular case, the Indian government’s final submission supported the repeal of Section 377 (that is, supported decriminalisation of gay relationships). This would indicate that the deference to executive authority was a fig leaf — enabling the justices to render a regressive and prejudiced decision without overtly appearing to do so. The news media rightly greeted the ruling with headlines like “SC: Gay sex illegal” and “Gay Sex is a criminal offense rules Supreme Court”. For once, the media’s inability to handle nuance is working in favour of truth.


While India’s brave community of LGBT activists and their heterosexual allies will continue to fight for equality — one that they will doubtless win in the long run; in the short term, this decision does real damage to the lives of gay people who are out or in the closet. It will expose lesbians and gays to even more harassment and persecution from the police; give fresh institutional cover to discriminatory practices in every aspect of life — housing and employment among others, and could shrink the already rather limited spaces that the LGBT community has carved out for themselves in public life.

Today, the Supreme Court of India has abjectly failed in its fundamental duty to protect the fundamental rights of an individual and of minorities. Here’s hoping Justices Singhvi and Mukhopadhyaya will see the repudiation of their reasoning by the same Supreme Court in their lifetimes.

(Abhay Prasad is a graduate of IIT Bombay and IIM Ahmedabad and a former volunteer editor of Trikone Magazine, the oldest South Asian LGBT magazine in the U.S. His blog is here.)