1

CASE BOOK

Shubhankar Anand Kulkarni,

III B.A LL.B, 3223
Diploma in Corporate Laws,
ILS Law College, Pune. (Autonomous Program)

The cases regarding digital laws that changed the landscape of the
Indian Legislations.
 2

SHREYA SINGHAL V. UNION OF INDIA

It is a judgement by a two-judge bench of the Supreme Court of
India in 2015, on the issue of online speech and intermediary
liability in India. The Supreme Court struck down Section 66A
of the Information Technology Act, 2000, relating to restrictions
on online speech, as unconstitutional on grounds of violating the
freedom of speech guaranteed under Article 19(1)(a) of
the Constitution of India. The Court further held that the Section
was not saved by virtue of being a 'reasonable restriction' on the
freedom of speech under Article 19(2).
The Supreme Court also read down Section 79 and Rules under
the Section. It held that online intermediaries would only be
obligated to take down content on receiving an order from a
court or government authority. The case is considered a
watershed moment for online free speech in India1.

Background—
Section 66A of the Information Technology Act, 2000
made it a punishable offence for any person to send 'grossly
offensive' or 'menacing' information using a computer
resource or communication device. The provision also
made it punishable to persistently send information which
the sender knows to be false for annoyance, inconvenience,
danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred or ill will. Additionally, Section 66A made
1
. "Gautam Bha a, The Striking Down of Sec on 66A". 26 March 2015
 3

it punishable to send an 'electronic mail message' for the

purpose of causing annoyance, or inconvenience, or to
deceive or to mislead the recipient about the origin of the
message.
The vague and arbitrary terms used in the Section led to
much misuse of both personal and political nature, with
several criminal cases being instituted against innocuous
instances of online speech, including political commentary
and humour2. Section 66A and 79 of the IT Act, as well as
rules made under the Act3, created an onerous liability
regime for internet intermediaries.

Analysis—
In a 52-page judgement, the Supreme Court struck down
Section 66-A of the Information Technology Act, read
down Section 79 of the Information Technology Act and
the related rules, and affirmed the constitutionality of
Section 69A of the Act.
Speaking for the Court, Justice Nariman discussed the
various standards which are applicable to adjudge when
restrictions on speech can be deemed reasonable, under
Article 19(2) of the Indian Constitution. The Court held
2
"Sec on 66A: Seven instances of alleged abuse on social media". Indian Express. 24 March 2015.

3
Informa on Technology (Intermediaries Guidelines) Rules, 2011, (h p://dispur.nic.in/itact/it-intermediaries-
guidelines-rules-2011)
 4

that Section 66-A was vague and over-broad, and therefore

fell foul of Article 19(1)(a), since the statute was not
narrowly tailored to specific instances of speech which it
sought to curb. Importantly, the Court also considered the
'chilling effect' on speech caused by vague and over-broad
statutory language as a rationale for striking down the
provision. Further, the Court held that the 'public order'
restriction under Article 19(2) of the Constitution would
not apply to cases of 'advocacy', but only to 'incitement',
specifically incitement which has a proximate relation to
public disorder.
On the equal protection challenge Article 14 of the
Constitution of India, the Court held that "we are unable to
agree with counsel for the petitioners that there is no intelligible
differentia between the medium of print, broadcast and real live
speech as opposed to speech on the internet. The intelligible differentia
is clear – the internet gives any individual a platform which requires
very little or no payment through which to air his views." 4 This
argument might be considered as sufficiently logical.
The Supreme Court further read down Section 79 and Rule
3(4) of the Intermediaries Guidelines, under the Act,
which deals with the liability of intermediaries, mostly
those which host content and provide online services.

4
Para 98, Shreya Singhal v Union of India.
 5

Whereas the Section itself uses the term 'receiving actual

knowledge', of the illegal material as the standard at which
the intermediary is liable for removing content, the Court
held that it must be read to mean knowledge received that
a Court order has been passed asking it to take down the
infringing material.
Finally, the Court also upheld the secret blocking process
under Section 69A of the Act, by which the Government
can choose to take down content from the Internet,
holding that it did not suffer from the infirmities in Section
66A or Section 79, and is a narrowly drawn provision with
adequate safeguards.

Significance/ Impact—
While the decision of the Supreme Court is of immense
significance in protecting online free speech against
arbitrary restrictions, Section 66A, which was declared
unconstitutional, has continued to be used as a punitive
measure against online speech in several cases.
 6

CHRISTIAN LOUBOUTIN SAS V. NAKUL BAJAJ &

CO..

This is a landmark judgment delivered by the Delhi High

Court on November 2, 2018. The judgment tried to
reiterate and clarify the responsibilities, duties and
liabilities of a company who may be working as an
intermediatory of Intellectual property rights for
infringement of trademarks. It was the first time when an
Indian court has given a judgment related to trademark
infringement by an e-commerce platform.

Background—
The Defendant was offering for sale of different products,
mainly luxury shoes in the brand name of “Christian
Louboutin”. He operated these products through a
website in the name of www.darvey.com. According to the
Plaintiff, Christian Louboutin SAS, the website used by
the defendant may make an impression on its visitors or
customers as if they were sponsored or authorized for sale
of their products by authorization by the Plaintiff.
According to the Plaintiff, there was a trademark
infringement and cessation of the luxury status as was
enjoyed by them before this act by the Defendant. The
 7

Defendant during the trial claimed that the website he

used was merely an intermediary for booking of the luxury
products and was not involved in any direct sale of
products of the Plaintiff, and also that the bookings of the
products were only on the behalf of the authorized seller,
who used these online bookings to sell goods Defendant
also argued that the goods displayed on their platform on
sellers’ behalf only and that they were entitled to
protection under the IT Act, 2000, Section 79.
The main dispute between the parties were that which one
of them sold genuine products in the company’s name as
being genuine. Only good factor was that during the
pronouncement of the judgment, no parties sold their
products, so it was then easy for the Court to only decide
upon the issues related to Section 79.

Analysis—
The High Court examined that the website took full
responsibility for marking the authenticity of products
and that the products were checked by their commissions,
then they initiate the final procedure of purchasing/
buying of the products from third party and then arranged
the products for delivery.
 8

Also, the Court observed that invoices were directly raised

without any intervention of the website of Defendant.
They also provided for the guarantees and authenticity.

The Court applied similar logic as to given in the case

Tiffany (NJ) Inc. v. eBay Inc, 5where the Plaintiff sued the
online marketing company for infringement of trademark,
also that the website promoted counterfeit products of the
luxury brand products of “Tiffany” was alleged by the
company. After appeals too, the courts decided on the
Defendant’s side.
The Court also wisely observed that there is a certain
liability of the online marketplace responsible for the sale
of different goods, or while as acting as an intermediary, if
they neglect the provisions of IPR, i.e the trademark,
copyright or patent or any other type of intellectual
property, or by any instance are felt to be planning or
supporting or abetting unlawful sale, such an online
marketplace might be excluded from the protection given
by the Section 79(3)(a) of the IT Act.
The Court also reminded about the “Intermediaries
Guidelines” brought in 2011 under Section 79(3)(b) about

5
Tiffany (NJ) Inc. v. eBay Inc, 600 F.3d 93 (2nd Cir. 2010), US Court of Appeals for the Second
Circuit.
 9

the due diligence to be observed by these marketplaces all

the time.
Though this case in Delhi HC was first of its kind in India,
the decision given is undoubtedly very analytic. Although
even after the arguments of the Defendant, the court ruled
that it may not be protected under Section 79 as an
intermediary and may be subject to similar suing if any
other person thinks that the product he purchased may be
a fake or counterfeit or copy of the original product, the
court is ought to entertain such suit, no matter even if the
product shipped was genuine. The protection may also not
be granted against any Company too, which is
understandable.
This case has acted as a landmark for the determining of
the online marketplaces and their roles and
responsibilities.
 10

SHAMSHER SINGH VERMA V. STATE OF HARYANA

This case came upon the Bench of Justice Prafulla C Pant

and Justice Dipak Misra in the Supreme Court (appeal)
directed against the order dated 25.8.2015, by the High
Court of Punjab and Haryana at Chandigarh. This case
highlighted the importance of how any electronic or
digital device can play an important role for case and also
wisely pointed out how the lower courts have
misinterpreted the words given in the CrPC and Evidence
Act for ‘Document’, and that he was deprived of his right
to defense. An exhibit, no matter how minor it may be
considered but may contain some crucial points which can
help an innocent be acquitted, and cannot be denied right
to defense.

Background—
The Accused had petitioned to the Hon. Supreme Court
challenging the decision given by the previous court and
the order of not accepting a compact disc (CD) as an
exhibit for evidence, also the HC, Punjab and Haryana had
rejected the application of the accused for proving the
exhibit from the Forensic Science Laboratory. The
Appellant (Petitioner) Shamsher Singh Verma was
 11

accused of molesting his niece, who was a minor (S. 354A

& S. 376). According to the Appellant, this was a faux
complaint and that it was a counter reaction to their land
dispute by the Respondent, and that the compact disc
contained all the satisfactory evidence to remove the
charges upon the Appellant. In addition to this, the
Respondent was able to convince the trial court that the
accused was trying to prolong the trial procedure and
violating the Section 294 of CrPC. An application was also
given to the Supreme Court with Petition regarding this.

Analysis—
The accused has examined 4 witnesses and an
application purported to have been moved under Section
294 CrPC filed before the trial court with following
prayer: -
“In view of the submissions made above it is therefore prayed that the
said gadgets may be got operated initially in the court for preserving
a copy of the text contained therein for further communication to
F.S.L. for establishing their authenticity. It is further prayed that the
voice of Sandeep Verma may kindly be ordered to be taken by the
experts at FSL to be further got matched with the recorded voice
above mentioned.” In said application dated 19.2.2015, it is alleged
that there is recording of conversation between Sandeep Verma
 12

(father of the victim) and Saurabh (son of the accused) and Meena
Kumari (wife of the accused). The application appears to have been
opposed by the prosecution. Consequently, the trial court rejected the
same vide order dated 21.2.2015 and the same was affirmed, vide
impugned order passed by the High Court. Learned counsel for the
appellant argued before us that the accused has a right to adduce the
evidence in defence and the courts below have erred in law in denying
the right of defence.”
The argument of the complainant was also overruled since
there was lingering act done by the accused in a sensitive
matter of POCSO case since he was in jail. The object of
Section 294 is to fasten the trial without bringing up
unwanted evidences. The previous courts rejected the
compact disc stating it against the object of S. 294. But in
a case where a similar kind of evidence was considered
even when its form was not defined in the Evidence Act.
In Ziyauddin Barhanuddin Bukhari vs. Brijmohan
Ramdass Mehra and others6, it was held by this Court that
tape-records of speeches were “documents”, as defined
by Section 3 of the Evidence Act, which stood on no
different footing than photographs, and that they were
admissible in evidence on satisfying the following
conditions:
6
(1976) 2 SCC 17 : 1975 (Supp) SCR 281
 13

“(a) The voice of the person alleged to be speaking must be

duly identified by the maker of the record or by others who
know it.
(b) Accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory
evidence, direct or circumstantial, had to be there so as to
rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be
relevant according to rules of relevancy found in
the Evidence Act.”
Also, in the case of R.M. Malkhani v. State of
Maharashtra7, the Court had observed that video tapes can
be examined through voice identification and that the
issue of erasing of tape would not arise and can be
admissible in these kinds of matters.

Conclusion—
The Bench accepted that the court below had erred in their
order for not allowing the compact disc as an exhibit, no
matter if it has little to do as evidence, and hence the Court
allowed examination of the CD by the Forensic Science
Laboratory, and hence allowed the appeal.

7
(1973) 1 SCC 471 : 1973 (2) SCR 417
 14

Significance/ Impact—
This case is considered as a landmark case since
considering a compact disc and any other forms of
evidence as exhibits in courts, encouraging the digital
evidences to be presented in the courts. A similar case in
the Madras HC before Justice R. Sudhakar and Justice P.N.
Prakash (K. Ramajayam v. Inspector of Police) 8cited this
case as a precedent for mentioning of a CD as evidence and
proper implementation of Section 294 of the CrPC.

8
1/2015, Cr A 110/2015 : Chennai ((2014) 2 MLJ (Crl) 41)
 15

SMC PNEUMATICS (INDIA) Pvt. Ltd v. JOGESH

KWATRA

The SMC case has been a very important case in the Indian
legal system. The case highlighted the new term ‘cyber
defamation’ and was the first one of its kind case. The case
was filed by R.K. Malhotra, the Managing Director of SMC
Pneumatics Pvt. Ltd. in the Delhi District Court against
Jogesh Kwatra for allegedly sending vulgar e-mails to the
company’s employees, and harming the company’s
reputation. The defendant was also an employee of the
plaintiff company, upon such e-mails he was removed from
his job and a complaint was filed.

Background—
The plaintiff and his employees received various vulgar,
obscene and defamatory e-mails from a computer which
was located upon investigation of a cyber café in New
Delhi. After further investigating with help of
photographs, the café attendant identified the sender
(defendant). He had sent e-mails to even the higher
officials of the subsidiaries of the company worldwide. He
especially sent those e-mails to employees in Australia
where he had previously worked with and then forwarded
 16

them to other MDs of those subsidiaries to defame the

plaintiff 2, the MD of the company.

So the Plaintiff took the copies of the e-mails and

complained to the Police for trying to defame by cyber
means and to end his professional career. The defendant
was removed from his job on the day of filing of the
complaint, 11 May 2001. When he sent those e-mails, he
was in employment with the Plaintiff (1&2).

Analysis—
The defendant argued that the plaintiffs had not come to
the court with clean hands and were framing him without
any proof, and that the evidences presented were all
fabricated and not original or genuine. And that they had
failed to retrieve proper time, network and the e-ails from
the server of the cyber café, the origin of its generation or
the landline phone to which the servers were connected to.
Of all the e-mails only one was able to trace. Since they
were sent from the cyber café’s ID, it was difficult to
identify, still by a photograph from a picnic, the attendee
of the café identified the defendant, but that photo used for
identification was not attached to the records, so maybe
the defendant counsel’s argument that the plaintiff had not
 17

come with clean hands was a valid argument and hence

couldn’t have got relief. Also, plaintiff counsel argued that
since the e-mails mentioned the company name, they
assumed that it was the defendant who had sent them and
hence their cause of action arises. And that they thought
that it was the defendant who sent them because the
things mentioned in the e-mails were only known to the
MD and defendant upon their conversation upon the same
before his removal, this was their principal argument. Also
that they only got 1 e-mail as evidence because of court’s
interim injunction, the other e-mails were hence blocked.

According to the court, only a single e-mail cannot rise the

cause of action from the plaintiff, and that they cannot
accuse the defendant of being the author just because he
was aware of the facts mentioned in the arguments
presented by the plaintiff counsel as retrieved from the e-
mail. So because of unsatisfactory evidences and infit
according to Section 65B of the Evidence Act, the
defendant was acquitted. The other two issues if they
should get the relief and if they were with clean hands was
also as a result rejected by the court, so it was decided that
the plaintiffs will get no relief since they were not “with
clean hands”. This decision was given by the court was on
 18

the basis of not having satisfactory evidences, which seems

logical, since they were circumstantial only and not direct.

Significance/ Impact—
This case gave birth to a new term of ‘cyber defamation’.
New angles were explored under the case
 19

JUSTICE K.S. PUTTASWAMY (Retd) & Anr. v.

UNION OF INDIA & Ors

This case is popularly known as the Right to Privacy

verdict by the Supreme Court of India. The Petitioner was
former Judge at the High Court of Karnataka. The verdict
was delivered by a nine-judge bench consisting of J. S.
Khehar, J. Chelameswar, S. A. Bobde, R. K. Agrawal, R. F.
Nariman, A. M. Sapre, D. Y. Chandrachud, S. K. Kaul,
and S. A. Nazeer. They unanimously decided on the
petition that “Right to Privacy is protected as an intrinsic
part of the Right to Life and Personal Liberty under Article
21 and as a part of freedoms stated in Part III of the
Constitution.9

Background—
When Meta acquired WhatsApp in 2014, it was a task in
front of Supreme Court if Right to Privacy should be
enforced against these entities, or if they could enforce.
Also, Union Government had taken the stance that right
to privacy was a common law right, earlier judgments had
failed to prove it as a fundamental right and hence, the 3-
judge bench hearing the case regarding AADHAR Card
9
"9-judge bench Archives". SCC Blog. Retrieved 16 May 2019.
 20

referred this case to the 9- Judge bench if it was a

fundamental right or not.
The then Attorney General of India K.K. Venugopal took
the stance that there should be no elevation of right to
privacy as a fundamental right, while the previous
Attorney General opposed the right to privacy completely,
also, CJI Khehar was informed of previous decisions by
benches of eight and six judges respectively who had
rejected the status of fundamental right to right to privacy
upon arguments and suggestions of AG Rohatgi and
Venugopal. So, he decided to constitute a nine-judge
bench to decide upon the matter chaired by himself.

Analysis—
The Bench ruled that it was a fundamental right, the bench
also prescribed a three staged test to test whether a
legislation is violating such a fundamental right –
 Legality, that is existence of certain law.
 Necessity, if that specific legislation’s objective is
really necessary.
 Proportionality, which includes a rational
connection between the objective and the required
means to get to that objective.10
10
"Cons tu onality of Aadhaar Act: Judgment Summary". Supreme Court Observer. Retrieved 2 September 2023.
 21

Another argument of the court was that prior to the

making of the Constitution, people had rights
(fundamental), they had the dignity and liberty and they
were not ‘so-called’ rights but actual rights. They were
founded on the sound constitutional doctrine and not on a
majoritarian doctrine or a non-majoritarian doctrine, they
inhere the right to life. Privacy is also a part of a human life,
there choices might defer, but this is how liberty works,
and also keeping that preference or principle or ideology
without anyone interfering in it is the basic idea behind
privacy. So privacy is more like a subset in the legal term
of right to life, and hence, cannot be denied.

While stating upon sexual orientation, the bench held that

it is purely an essential attribute of privacy, and
discrimination of someone based on these attributes can
be deeply offensive and may harm their self-worth and that
individual’s dignity. Their orientation’s protection is what
equality doctrine aims at. So the Court held that-
“ The right to privacy and the protection of sexual orientation lie at
the core of the fundamental rights guaranteed by Articles 14, 15, and
21 of the Constitution, Equal protection demands protecting the
identity of every individual without discrimination”.11

11
AIR 2017 SC 4161
 22

Mentioning the ADM Jabalpur case, Justice D.Y.

Chandrachud, whose judgment was upheld by the whole
bench said –
“Justice Khanna was right in holding that the recognition of the right
to life and personal liberty under the Constitution does not denude the
existence of that right, apart from it nor can there be a fatuous
assumption that in adopting the Constitution the people of India
surrendered the most precious aspects of the human persona, namely,
life, liberty and freedom to the State on whose mercy these rights
would depend. Such a construct is contrary to the basic foundation of
the rule of law which imposes restraints upon the powers vested in the
modern state when it deals with individual liberties”
Hence, upon reading this, we can say that the court had
adopted a liberal stance on fundamental rights, holding
that individual liberty must extend to digital spaces and
individual autonomy, and hence privacy must be
protected.12

Conclusion--
The Right to Privacy was hence to be treated as every other
fundamental rights mentioned in Part III of the
Constitution [ Articles 14, 19, 21]. This Judgment also left

12
"Supreme Court Observer -". www.scobserver.in
 23

open the path for decriminalizing Homosexual intercourse

challenging provisions in Section 377 of IPC, sating that it
was purely a personal matter of preference and that no
person shall curb or try to curb any individual’s privacy.

Impact/ Significance—
The judgement was interpreted as paving the way for the
eventual decriminalization of homosexuality in the case
of Navtej Singh Johar v. Union of India13 (2018) and adultery in
the case of Joseph Shine v. Union of India14 (2018).

13
2018 INSC 790
14
AIR 2018 SC 1676