Andhra Pradesh High Court - Amravati
Dr. Chegudi Ashok Babu Alias Joshua ... vs Karunakar Sugguna, on 2 August, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HIGH COURT OF ANDHRA PRADESH
****
WRIT PETITION (PIL) No.80 OF 2019
Between:
Rev. Dr. Chegudi Ashok Babu @ Joshua Daniel and another
... Petitioners
And
Karunakar Sugguna and 7 others
... Respondents.
JUDGMENT PRONOUNCED ON 02.08.2019
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment?
2
HACJ & MSM,J
WP(PIL)_80_ 2019
* THE HON'BLE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ WRIT PETITION (PIL) No.80 of 2019
% 02.08.2019
# Rev. Dr. Chegudi Ashok Babu @ Joshua Daniel and another
....Petitioners
v.
$ Karunakar Sugguna and 7 others
.... Respondents
! Counsel for the Petitioner : Dr.Ch.Ashok Babu - Party-in-person.
Counsel for Respondents:
<Gist :
>Head Note:
? Cases referred:
(1) AIR 2015 SC 460
(2) 2015 (5) SCC page 1
(3) (2014) 2 SCC 1
(4) 1957 AIR 620
(5) (1989) 2 SCC 574
(6) 1986 (4) SCC 632
(7) 1995 All.L.J. 534
(8) (1996) 9 SCC 309
(9) (2004) 2 SCC 150
(10) (2008) 2 SCC 280
3
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THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION (PIL) No.80 OF 2019
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) Rev. Dr. Chegudi Ashok Babu @ Joshua Daniel and Rev. Dr.Nallapu Johnson filed this writ petition under Article 226 of Constitution of India as pro bono publico/Public Interest Litigation claiming Writ of Mandamus declaring the action of the respondent Nos.1 and 2 as violation of Freedom of Religion provided under Article 25 of Constitution of India and to direct the respondent Nos.3 to 6 to take necessary action against the respondent Nos.1 and 2 and to direct the respondent Nos.7 and 8 to take action against the respondent Nos.1 and 2 for releasing the abusive teaser against the belief of the Christian Community by deleting the teaser from "YouTube" Channel and to stop release of the Short Film, which is scheduled to be released on 27th day of April 2019.
The petitioners alleged that they are Pastors of churches and having membership in their fellowship to protect their rights. They are the followers of Jesus Christ and they believe Jesus Path. The churches and the pastors having membership and fellowship are having clear circulars and rules regarding their maintenance for the protection of their fellowship, establishments and community. They never interfered into any community issues in the society and leading a peaceful life with all rights provided by the Indian Constitution and they never even tried to disturb rights of other individuals, institutions or any organizations. The petitioners never disturbed any particular community in any aspect and moreover they are having respect towards the communities in the country. They established 4 HACJ & MSM,J WP(PIL)_80_ 2019 their fellowship, registered under the Societies Registration Act. One of the objects of the society is to protect and safeguard their religious rights. Recently on 04.03.2019 one teaser (Trailer) was released by a production named "Siva Sakthi Creations" i.e. respondent Nos.1 and 2 through the Electronic Media, having title as "Nene Devunni" with a caption "antha abaddam" and one Karunakar Sugguna is the writer and director and the same was released in a web site https://shivashakthi.org virally all over the world defaming their religious, devotional feelings about Jesus. In the trailer "2nd coming of Jesus" was shown in a different way i.e. totally contradicting the Holy Bible which was followed by Crores of people throughout the world. The basic motive of the Producer and Director in releasing such teaser is to divert the devotees mind set from the scriptures given by the Holy Bible. The said teaser is created by its Producer and Director is only to defame the inner feelings of particular religious people and the intention of the Producer and Director is clearly shown in the teaser and they wantonly gathered some other bigots and created the short film with an intention to create religious disturbances in the society during election time and to create nuisance between two communities.
The said teaser is wholly contrary to the Holy Bible and its object is different in toto. It is clear that if the short film created by the above said "Siva Sakthi Creations" is allowed to be released through the web site link, it is dangerous to the society and damage to a particular religion and also hurts the feelings of the Christians, non-Christians and the followers of Jesus Christ.
It is the specific contention of the petitioners that practicing of particular religion or following particular religion is a fundamental 5 HACJ & MSM,J WP(PIL)_80_ 2019 right guaranteed under the Constitution of India, but the respondent Nos.1 and 2 in utter violation of their fundamental right guaranteed under the Constitution of India, are trying to release teaser which humiliate and insult the religious faith in the secular state, which was provided under the constitution.
The petitioners approached the respondent Nos.3 to 7 with various representations to take necessary action against the act of the respondent Nos.1 and 2, but they have not deleted the abusive teaser released by the respondent Nos.1 and 2 in violation of their duty as public servant. Therefore, the petitioners sought a direction as stated above.
At the stage of admission, we heard the petitioner No.1 as party-in-person. The main grievance of the petitions before this Court is that the teaser released by respondent Nos.1 and 2 in respondent No.7 - YouTube Channel wounds the religious feelings of particular community as a whole as the respondent Nos.1 and 2 described the Jesus in a different way, which is totally contrary to the object of Holy Bible and thus, infringed the fundamental right guaranteed under the Article 25 of Constitution of India. Despite lodging report with respondent Nos.3 to 7, no action has been taken to prevent the release of short film scheduled to be released on 27.04.2019 and requested this Court to issue necessary directions to the respondents to take necessary action.
In support of the contentions of the petitioners, they produced printouts of screenshots, in all the printouts of screenshots, the short film titled as "Nene Devunni Telugu Cinema Trailer" and name of the producer are appearing and similarly two persons - one person 6 HACJ & MSM,J WP(PIL)_80_ 2019 resembling features of Jesus and common man are appearing. Strangely, in one photo the person resembling the features of Jesus was with a woman in Saree with word "my sweet darling" are appearing. But the Tele teaser is not placed on record before this Court. But none of the printouts of screenshots did not disclose the actual conversation recorded in the trailer to establish prima facie that the person imitated Jesus and the conversation is directly pointing out a particular religion, which amounts to defaming particular community at large. In the absence of any prima facie material basing on the printouts of screenshots produced before the Court along with Writ Petition, it is difficult to conclude that those tele teaser or short film, which was scheduled to be released on 27.04.2019 violates the fundamental right guaranteed under Article 25 of the Constitution of India.
Article 25 of Constitution of India guarantees freedom of conscience and free profession, practice and propagation of religion. Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Article 26 of Constitution of India guarantees freedom to manage religious affairs. The object and purpose of enacting Article 26 is to protect the rights conferred therein on a 'religious denomination' or a section thereof. However, the rights conferred under Article 26 are subject to public order, morality and health and not subject to any other provision of Part III of the Constitution as the limitation has been prescribed by the law makers by virtue of Article 7 HACJ & MSM,J WP(PIL)_80_ 2019 25 of the Constitution of India (vide: "Dr.Subramanian Swamy v. State of Tamil Nadu1") In the present facts of the case, the petitioners' grievance is that the respondent Nos.1 and 2 released tele teaser i.e. trailer of short film "Nene Devunni" and they allegedly criticized particular religion indirectly, but it is difficult for this Court to accept such contention in the absence of Tele Teaser appeared in YouTube channel allegedly. Moreover, printouts of screenshots at best disclosed appearance of two persons i.e. one in the style of Jesus and the other is a common man and there are few sentences appearing in those screen shots as "(inner voice) who is provoking these people to revolt?" "Are you really jesus" "My sweet darling". But none of these words infringing the fundamental rights guaranteed under Article 25 of the Constitution of India to a particular religion in the secular state, if it directly pointing out a particular religion subject to exceptions contained under Article 25 of the Constitution of India, exhibition of such trailer "Nene Devunni" may wound the religious feelings of a particular community. But for one reason or the other, no material is produced before this Court to show prima facie that the conversation in the teaser would directly criticizing Christianity or any particular religion, infringing the fundamental right guaranteed under Article 25 of the Constitution of India.
Even assuming for a moment that respondent Nos.1 and 2 released such teaser in the website of "YouTube", such release is governed by provisions of the Information Technology Act, 2000 (for short "the Act").
1 AIR 2015 SC 460 8 HACJ & MSM,J WP(PIL)_80_ 2019 Section 66 of the Information Technology Act, 2000 deals with "computer related offences". Section 66A of the Information Technology Act prescribed punishment for sending offensive messages through communication service etc. Any person who sends, by means of a computer resource or a communication device, any information that is grossly offensive or has menacing character or 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 computer resource or a communication device, or 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. For the purpose of section, "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.
Therefore, the said teaser falls within the definition of electronic mail or electronic mail message as per explanation to Section 66A of the Information Technology Act, 2000.
The Hon'ble Apex Court in "Shreya Singhal v. Union of India2" struck down the Section 66A of the Information Technology Act as it is violative of Article 19 (a) Constitution of India relating to Freedom of Speech and Expression. In view of the judgment in 2 2015 (5) SCC page 1 9 HACJ & MSM,J WP(PIL)_80_ 2019 "Shreya Singhal v. Union of India" (referred supra) Section 66A of the Information Technology Act is deemed to be non-existing in the statute book. Therefore, comments on social networking or releasing any audio or video will not constitute an offence under the Information Technology Act unless constitute offence under the provisions of the Indian Penal Code.
The main grievance of the petitioners is that the act of respondent No.7 permitting respondent Nos.1 and 2 to upload Tele teaser "nene devunni" violates the fundamental right guaranteed under the Article 25 of the Constitution of India, but this cannot accepted in view of the law declared by the Apex Court in "Shreya Singhal v. Union of India" (referred supra), but still it constitutes an offence punishable under Section 295-A of I.P.C., which reads as follows:
"295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.-- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Therefore, the alleged act committed by the respondent Nos.1 and 2 is cognizable offence as per schedule I of Cr.P.C. When a cognizable offence is committed or brought to the notice of Station House Officer, the duty of the Station House Officer is to register the 10 HACJ & MSM,J WP(PIL)_80_ 2019 same as crime in view of the law rendered in "Lalita Kumari v. Government of Uttar Pradesh3"
In fact, the petitioners did not bring commission of such offence to the notice of respondent Nos.3 to 6 or 8 by lodging any report with the police, in such case, failure to take action by respondent Nos.3 to 6 and 8 does not amount to failure to discharge the duty by the official respondents.
A letter was addressed to the authorities, YouTube Customer Care, Google Indian Pvt. Ltd., Block-1, Divya Sree Omega, Survey No.30, Kondapur Village, Hyderabad, complaining about the offensive material uploaded in the website and requested to block the teaser and take necessary action against the release of short film or teaser through YouTube or in any other source. But the respondent No.7 did not respond to such request despite letter dated 09.04.2019.
It appears from the record that on 06.03.2019 a complaint was lodged with the Station House Officer, Cyber Crime Police Station, Visakhapatnam obtained receipt No.70 of 2019, to take action against the person, who released trailer in YouTube abusing Christianity. Since the act of respondent Nos.1 and 2 does not fall within the provisions of the Information Technology Act, 2000, the same is treated as Non-cognizable. When the complaint was received and no action was taken by police, the remedy open to the petitioners is elsewhere, but based on such complaint, Cyber Crime Police is not expected to take any action as it is non-cognizable offence and Section 66 A of the Information Technology Act is deemed to be non- existing.
3 (2014) 2 SCC 1 11 HACJ & MSM,J WP(PIL)_80_ 2019 The petitioners appear to have lodged another report on 06.03.2019 with Central Complaint Cell, Office of Commissioner of Police, Visakhapatnam City and obtained receipt bearing No.111/19 and the gist of the complaint is that the respondent Nos.1 and 2 abusing Jesus Christ and insulting the public by uploading the trailer by name "Nene Devvuni" in YouTube. Therefore, lodging a report with the Central Complaint Cell and Cyber Crimes are of no use when the alleged release of teaser or trailer "Nene Devunni" do not fall within the provisions of Information Technology Act in view of declaring Section 66A as unconstitutional by the Apex Court in "Shreya Singhal v. Union of India" (referred supra) and the petitioners ought to have lodged a report with the Law and Order Police Station to take necessary action for the offence punishable under Section 295A of I.P.C. but no report was lodged by the petitioners for one reason or the other with the Law and Order Police Station to take necessary action against the respondent Nos.1 and 2. Thereby, the question of their taking action by registering crime and issuing F.I.R., and conducting investigation, based on such report does not arise.
Inaction of respondent Nos.3 to 6 does not amount to failure to discharge their lawful duties.
Petitioners addressed a letter to the respondent No.7 dated 09.04.2019 with a request to block the teaser "Nene Devunni" and prevent "Shiva Shakthi" channel from releasing the short film "Nene Devunni". The said letter was addressed to "the Authorities, YouTube Customer Care, Google India Pvt. Ltd., Block1, Divya Sree Omega, Survey No.13, Kondapur Village, Hyderabad." The respondent No.7 is only intermediary. YouTube is a subsidiary of Google. Therefore, addressing letter to the respondent No.7 is in accordance with the 12 HACJ & MSM,J WP(PIL)_80_ 2019 procedure. Moreover, YouTube issued Hate Speech Policy, which is as follows:
"Hate speech is not allowed on YouTube. We remove content promoting violence or hatred against individuals or groups based on any of the following attributes:
• Age • Caste • Disability • Ethnicity • Gender Identity • Nationality • Race • Immigration Status • Religion • Sex/Gender • Sexual Orientation • Victims of a major violent event and their kin • Veteran Status
If you see content that violates this policy, please report it. Instructions for reporting violations of our Community Guidelines are available here. If you have found multiple videos, comments, or a user's entire channel that you wish to report, please visit our reporting tool, where you will be able to submit a more detailed complaint.
If you're posting content Don't post content on YouTube if the purpose of that content is to do one or more of the following.
• Encourage violence against individuals or groups based on any of on the attributes noted above. We don't allow threats on YouTube, and we treat implied calls for violence as real threats. You can learn more about our policies on threats and harassment.
• Incite hatred against individuals or groups based on any of the attributes noted above.
Other types of content that violates this policy Educational content Examples Here are examples of hate speech not allowed on YouTube. • "I'm glad this [violent event] happened. They got what they deserved [referring to persons with the attributes noted above]."
• "[Person with attributes noted above] are dogs" or "[person with attributes noted above] are like animals."
More examples Please remember these are just some examples, and don't post content if you think it might violate this policy.
What happens when content violates this policy If your content violates this policy, we'll remove the content and send you an email to let you know. If this is the first time you've posted content that 13 HACJ & MSM,J WP(PIL)_80_ 2019 violates our Community Guidelines, you'll get a warning with no penalty to your channel. If it's not, we'll issue a strike against your channel. Your channel will be terminated if you receive 3 strikes. You can learn more about our strikes system here.
If we think your content comes close to hate speech, we may limit YouTube features available for that content. You can learn more about limited features here.
• The importance of context • Recent transparency report • Limited features for certain videos"
The said policy makes it clear that the officials of the respondent No.7 do not undertake any responsibility for posting such hate speeches. If anybody posted any content violating the said policy for the first time, a warning will be given without penalty. If it is posted second time, the authorities of respondent No.7 strike the same. If any channel receives 3 strikes, the said channel will be terminated.
In any view of the matter, no notice was sent to the Google Inc. at United States, which is having control over the posting of such hate speeches. Respondent No.7 herein is only intermediary inviting advertisements in India and the respondent No.7 is not responsible for such posting of hate speeches.
Clause (w) of sub-section (1) of Section 2 of the Act defined the word "intermediary" 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."14
HACJ & MSM,J WP(PIL)_80_ 2019 Intermediary cannot be equated with an agent under the Indian Contract Act since there is specific definition in the Information Technology Act for the word 'intermediary'. Intermediaries are third party organizations that offer intermediation services between the parties trading amongst themselves. Such organizations act as ducts for services offered by a supplier to the relevant consumer. Value addition to the service in question is a key aspect of the trading platform offered by such intermediaries, which is highly improbable if the trading is done directly. Provision of a trading platform for any kind of electronic commerce is the key link of the existence of an intermediary. Even to such intermediary service, certain safeguards have to be provided by the main service provider.
To decide the liability of intermediary in India, Section 79 of Information Technology Act is relevant, which reads as follows:
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--
(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-- 15
HACJ & MSM,J WP(PIL)_80_ 2019
(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." A bare look at Section 79 after introduction of Section 3 (b), it is clear that the provisions of sub-section (1) shall not apply if the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; 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.
In Shreya Singhal v. Union of India", (referred supra) the Apex Court applied Rule 3 of the Information Technology Rules framed thereunder, which reads as follows:
"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:16
HACJ & MSM,J WP(PIL)_80_ 2019
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;
(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 17 HACJ & MSM,J WP(PIL)_80_ 2019 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.
Learned counsel for the plaintiff assailed Rules 3 (2) and 3 (4) on two basis 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."
In view of the law declared by the Apex Court in "Shreya Singhal v. Union of India", (referred supra), it is for the intermediary to prove that it had exercised due diligence in allowing posting of any content on the web-blog. Here, the Gate keeping theory is applicable to the Internet, it has already been discussed in detail by more than one scholar Jonathan Zittrain, in his book History of Online Gate keeping and Harvard Journal of Law and Technology 2 (2006), where authors described the intermediaries as Gatekeepers and concluded that making gatekeepers liable for enforcing law is a common choice within legal frameworks. It has been explored in some detail by Reinier Kraakman, who distinguishes it from other kinds of collateral or third party liability by explaining that gatekeepers are private parties who are in a position to 'disrupt misconduct by withholding their cooperation from wrongdoers' in his book the Anatomy of a Third-Party Enforcement Strategy.
But the theory of gatekeeper attached more responsibility to the intermediary and it is only an effort to control online content by leveraging the position of the gatekeepers to flow of information online.
In "Shreya Singhal v. Union of India", (referred supra) the Apex Court pointed out that it is difficult to attach liability to the 18 HACJ & MSM,J WP(PIL)_80_ 2019 intermediaries and propounded the theory of due diligence based on Section 79 (3) of the Act and the law declared by the Apex Court in "Shreya Singhal v. Union of India", (referred supra) is binding on the courts in India.
Various theories of liability like strict liability standard cannot be applied to the provisions of Information Technology Act.
The law in India on the intermediaries liability is not yet developed except for the first time in "Shreya Singhal v. Union of India", (referred supra) by the Apex Court. In "Shreya Singhal v. Union of India" (referred supra) the Apex Court adverting to Section 79 (3) (b) as amended by the Act concluded that in paragraph No.122 observed as follows:
"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 Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b)."
In view observations recorded by the Apex Court in "Shreya Singhal v. Union of India" (referred supra) it is difficult to any intermediary to keep watch on millions of postings and requests by the users of internet.
19
HACJ & MSM,J WP(PIL)_80_ 2019 The order of the day in our country is that most of the websites are being mis-used by the general public for one reason or the other and internet users creating fake accounts both in the Face book and other internet service providers like Google and posting sexually explicit material and sometimes defamatory statements inviting comments from the net users, as such it is difficult for the service provider or intermediary to keep watch on such accounts of net users, which are in millions everyday. Moreover, such fake statements i.e. sexually explicit material and defamatory statements would cause incalculable damage to the reputation of the individuals, which reduces the image of the individual in the society and sometimes it would adversely effect the key position occupied by such person in the society. But the Information Technology Act produced some leverage to such intermediaries subject to attributing actual knowledge as required under Section 79 (3) (b) of Information Technology Act and proof of exercise of due diligence by the intermediary as per Rule 3 of rules framed thereunder. Sometimes, even after issue of notice of cease and desist, intermediary expressing its inability to remove or block those defamatory contents or sexually explicit material only on the ground that it has no control over it and the internet service provider directing the parties to approach the Court and obtain order for removal of such material; indirectly it amounts to encouraging the net users to post such defamatory content or sexually explicit material including child pornography in the websites and it will be continued on the website till a direction was issued by competent Court for removal of such content. It is also a known fact how much delay is being caused in the present adversarial system in Indian Courts and sometimes it will take years together and by the time 20 HACJ & MSM,J WP(PIL)_80_ 2019 direction was issued by the Courts, total reputation of such person against whom such defamatory content was posted would be greatly effected in the eye of the society and sometimes personal attacks against such persons and exposing those persons by sexually explicit material by morphing etc., would seriously effects the character and image of such person. Therefore, the Courts should give preference to such suits or petitions filed before the Courts and grant instant relief by way of interim orders to block or removal of such defamatory or sexually explicit content against the internet service provider, otherwise approaching Court for such relief is nothing but a futile exercise even if a direction is given after lapse of few years and it would not serve any purpose and the loss caused to such persons would not be compensated in monetary terms, but the present law under Information Technology Act is not able to provide such immediate reliefs to the person aggrieved by such defamatory or sexually explicit content or hate speeches etc. Therefore, the Legislature has to take necessary steps to provide safeguards in the interest of public at large on account of such defamatory content, sexually explicit material or pornography or hate speeches etc. by creating fake accounts by the net users and to provide stringent punishment to such net users, who created fake accounts and posted such material, by necessary amendment to the Information Technology Act and Rules.
In view of the principle laid down by the Apex Court in "Shreya Singhal v. Union of India" (referred supra), the remedy open to the petitioner is to issue notice of "cease and desist" to the YouTube, which is subsidiary of Google and Google having control over the postings and in case the said authority did not remove the content 21 HACJ & MSM,J WP(PIL)_80_ 2019 and failed to take any action against the respondents, the petitioners are entitled to approach the Court for removal of such offended content or disable the access to certain material.
Fundamental right guaranteed under Article 25 of the Constitution of India has to be read in conjunction with Article 19 of the Constitution of India. From harmonious interpretation of Articles 25 and 19, it is clear from a reading of these provisions that the rights under Article 25 are subject to the other provisions of Part III, which means they are subject to Article 19(1). It is not clear how the exhibition of the film will interfere with anyone's freedom of conscience or the right to profess, practise and propagate a particular religion. In "Ramji Lal Modi v The State Of U.P.4" it was contended before the Supreme Court that law interfering with the freedom of speech and expression and imposing punishment for its breach, the attack being to Section 295 A of the Indian Penal Code, is ultravires since it interferes with the Article 19 (1) (a) of the Consitution. The Supreme Court held that it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interest of public order. The Supreme Court further held that having regard to the ingredients of the offence created by the impugned section, there cannot be any possibility of this law being applied for purposes not sanctioned by the Constitution. The Court opined that how the same will hold in sustaining the impugned order. The test is whether the space occupied by the 'speech' or 'expression' is that of individual freedom or one of criminal behaviour. The Supreme Court said that 4 AIR 1957 SC 620 22 HACJ & MSM,J WP(PIL)_80_ 2019 when it is a criminal act, the rights' boundaries are crossed, and the safeguard of Article 19 (1) is not there. But in the facts of the said case, the petitioners' right to protection is available, as is clear from the response of the Catholic Bishops' Conference of India and the Certificate granted for exhibition of the film. The suspension of exhibition of the film is an assertion of Power exercised by self- appointed arbiters of what can be exhibited and what cannot be exhibited, who may be Officers of the State or members of the public representing a particular group. The Censor Board which granted the certificate was well aware of the restriction subject to which a certificate under Section 5 is granted and yet, granted the certificate and therefore, we must reject the submission that by protecting the freedom of expression of the writ petitioners', the right under Article 25 is violated. (Vide:Sony Pictures Releasing of India Ltd., v. The State of Tamil Nadu [2006 (4) CTC 193])"
Following the said judgment, the learned Single Judge of Madras High Court in "M/s. Hindu Dharma Sakthi v. The Government of India [W.P.No.7224 of 2012 and M.P.Nos.1 and 2 of 2012]" held that release of trailer would not infringe any fundamental right of an individual. The learned Single Judge also referred to a judgment of the Hon'ble Supreme Court in "S.Rangarajan vs. P.Jagjivan Ram and others5", wherein the Hon'ble Supreme Court was pleased to lay down, that the right of communication of ideas through any medium, newspaper, magazine or movie is subject to reasonable restrictions in the larger interests of the community and country as set out under Article 19(2). The Hon'ble Supreme Court was pleased to observe, that there should be a compromise between the interest of 5 (1989) 2 SCC 574 23 HACJ & MSM,J WP(PIL)_80_ 2019 freedom of expression and social interests. The freedom of expressions 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 interests. It should be inseparably locked up with the action contemplated like the equivalent of "spark in a power keg".
In "M/s. Hindu Dharma Sakthi v. The Government of India"
(referred supra) a Writ of Mandamus was sought not to certify the feature films for public exhibition, which have the scenes depicting Hindu Religious Sanyasis, Spiritual Gurus or leaders in a bad taste or defaming, insulting or abusing them or making/creating them as an object of mockery/comedy. In the facts of the present case also some screen shots disclosed that a person resembling Jesus was with another woman in Saree with word "my sweet darling." Basing on such screen shots, it is difficult to hold that such act intrinsically dangerous to the public interest. Mere remote danger is not sufficient to issue Writ of Mandamus.
Yet issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
In "State of Kerala v. A.Lakshmi Kutty6", the Hon'ble Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce 6 1986 (4) SCC 632 24 HACJ & MSM,J WP(PIL)_80_ 2019 the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
In "Raisa Begum v. State of U.P.7", the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.
In "State of U.P. and Ors. v. Harish Chandra and Ors.8" the Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."
In "Union of India v. S.B. Vohra9" the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish 7 1995 All.L.J. 534 8 (1996) 9 SCC 309 9 (2004) 2 SCC 150 25 HACJ & MSM,J WP(PIL)_80_ 2019 his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
In "Oriental Bank of Commerce v. Sunder Lal Jain10" the Supreme Court held thus:
"The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every 10 (2008) 2 SCC 280 26 HACJ & MSM,J WP(PIL)_80_ 2019 case a discretion dependent upon all the surrounding facts and circumstances."
When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied) In view of the principles laid down in the above judgments, Writ of Mandamus cannot be issued in the present facts of the case since the alleged release of teaser "Nene Devunni" would not infringe the fundamental right guaranteed under Article 25 of Constitution of India and there is no remote danger to the society at large on account of release of teaser"Nene Devunni" or short film.
In view of our foregoing discussion, we are not inclined to admit the writ petition in view of striking down of Section 66A of the Act by the Apex Court in "Shreya Singhal v. Union of India" (referred supra). However, it is left open to the petitioner to lodge appropriate 27 HACJ & MSM,J WP(PIL)_80_ 2019 report with the police for the offence punishable under Section 295-A of the I.P.C. and issue notice of "cease and desist" to the headquarters of YouTube, which is subsidiary of Google calling upon them to block teaser and short film by name "Nene Devunni" and in the event of failure to comply with the demand made by the petitioners, the petitioners may approach the Civil Court and seek a direction against the respondent No.7 to block the teaser "Nene Devunni" and block access to short film "Nene Devunni". If any such order is passed by the competent Civil Court, it is for the respondent No.7 to take appropriate action.
With the above direction, the writ petition is disposed of at the admission stage. No order as to costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
_______________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY 02.08.2019 Ksp