IN THE SUPREME COURT OF INDIA

WP(Crl.) No. 167/2012

Shreya Singhal
vs.
Union of India & Ors.

Written submissions of Senior Counsel, Soli J Sorabjee

on behalf of the Petitioner, Shreya Singhal

1. Section 66A of the Information Technology Act, 2000 [the said Act] is
unconstitutional because it violates the fundamental rights of freedom
of speech and expression guaranteed by Article 19(1)(a) of the
Constitution.

2. (a) “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.” [see Sakal Papers Ltd. vs. UOI, 1962 (3) SCR 842 at 866]

(b) “Freedom of the Press is the Ark of the Covenant of Democracy

because public criticism is essential to the working of its institutions.
Never has criticism been more necessary than today, when the weapons
of propaganda are so strong and so subtle. But, like other liberties, this
also must be limited.” [see Bennett Coleman & Co. vs. Union of India, 1973
(2) SCR 757 at 829]

(c) “Very narrow and stringent limits have been set to permissible
legislative abridgement of the right of free speech and expression, and

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 this was doubtless due to the realisation that freedom of speech and of
the press lay at the foundation of all democratic organizations…” [see
Romesh Thapar vs. State of Madras, 1950 SCR 594 at 602]

(d) “It is indisputable that by freedom of the press is meant the right
of all citizens to speak, publish and express their views. The freedom of
the press embodies the right of the people to read. The freedom of the
press is not antithetical to the right of the people to speak and express”
[see Bennett Coleman & Co. vs. Union of India, 1973 (2) SCR 757 at 829]

3. “There is nothing in el. (2) of Art. 19 which permits the State, to abridge
this right on the ground of conferring benefits upon the public in general
or upon a section of the public. It is not open to the State to curtail or
infringe the freedom of speech of one for promoting the general welfare
of a section or a group of people unless its action could be justified
under a law competent under el. (2) of Art. 19.” [see Sakal Papers Ltd. vs.
Union of India, 1962 (3) SCR 842 at 862]

4. Restrictions which can be imposed on freedom of expression can be

only on the heads specified in Article 19(2) and none other.
Restrictions cannot be imposed on the ground of ‘interest of general
public’ contemplated by Article 19(6) [See Sakal Papers (P) Ltd. vs.
Union of India, 1962 SCR (3) 842 at 868].

5. Section 66A penalizes speech and expression on the ground that it

causes annoyance, inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred or ill will. These grounds are
outside the purview of Article 19(2). Hence the said Section is

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 unconstitutional [See Secretary, Ministry of I&B vs. Cricket Assn. of
Bengal, 1995 (2) SCC 161 at 226-227].

6. Section 66A also suffers from the vice of vagueness because

expressions mentioned therein convey different meanings to different
persons and depend on the subjective opinion of the complainant and
the statutory authority without any objective standard or norm. [See
State of M.P. vs. Baldeo Prasad, 1961 (1) SCR 970 at 979; Harakchand
Ratanchand Banthia vs. Union of India, 1969 (2) SCC 166 at 183 para21;
K.A. Abbas vs. Union of India, 1970 (2) SCC 780 at 799 para 45-46;
Burstyn vs. Wilson, 96 L ed 1098 at 1120-1122; Secretary, Ministry of I&B
vs. Cricket Assn. of Bengal, 1995 (2) SCC 163 at 199-200]

7. In that context enforcement of the said Section is an insidious form of

censorship which is not authorised by the Constitution. [See Leonard
Hector vs. Attorney General Antigua-Barbuda, 1990 (2) All ER 103].

8. There are numerous instances about the arbitrary and frequent

invocation of the said Section which highlight the legal infirmity
arising from uncertainty and vagueness which is inherent in the said
Section. (emphasis added)

9. The said Section has a chilling effect on freedom of speech and

expression and is thus violative of Article 19(1)(a) [See R. Rajgopal vs.
State of Tamil Nadu, 1994 (6) SCC 632 at 647; S. Khusboo vs.
Kanniammal, 2010 (5) SCC 600 at 620].

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10. Freedom of speech has to be viewed also as a right of the viewers
which has paramount importance, and the said view has significance
in a country like ours” [See Secretary, Ministry of I&B vs. Cricket Assn. of
Bengal, 1995 (2) SCC 161 at 229].

11. The impugned heads of restrictions are inextricably linked with other
provisions of the said Section and are not severable. Hence the entire
Section 66A is unconstitutional. [see R.M.D. Champarbaugwalla vs.
Union of India, 1957 SCR 930 at 950-951]

….

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 Index of Cases referred in the Written Submissions: W.P. (C)

167/2012- SHREYA SINGHAL VS. UOI.

Sr. No. Case

1. Sakal Papers Vs. Union of India; 1962 3 SCR 842

2. Bennett Coleman Vs. UOI, 1973 2 SCR 757

3. Romesh Thapar Vs. State of Madras 1950 SCR 594

4. Secretary, Ministry of I & B Vs. Cricket Assn. of Bengal 1995

2 SCC 161

5. State of MP Vs. Baldeo Prasad 1961 1 SCR 970

6. Harakchand R. Banthia Vs. UOI 1969 2 SCC 166

7. K. A. Abbas Vs. UOI 1970 2 SCC 780

8. Burstyn Vs. Wilson 96 L ed 1098

9. Leonard Hector Vs. A.G. 1990 2 ALL ER 103

10. R. Rajagopal vs. State of Tamilnadu 1994 6 SCC 632

11. S. Khushboo Vs. Kanniammal 2010 5 SCC 600

12. R.M.D. Chamarbaugwalla Vs. UOI 1957 SCR 930.

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