IN THE HIGH COURT OF DELHI AT NEW DELHI

EXTRAORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION [CIVIL] NO. OF 1998

 

 

 

In the matter of:

A writ petition under Article 226 the Constitution

 

And

In the matter of:

Articles 19 (1) (a) and 19 (1) (g) of the Constitution

 

And

In the matter of:

The blocking of access to certain Web sites by the respondent, amounting to illegal censorship and a violation of the petitioner's Fundamental Rights

 

And

In the matter of:

Dr. Arun Mehta ..... Petitioner

 

Versus

 

V. S. N. L. ..... Respondent

 

To the chief justice and his companion justices of the High Court of Delhi at New Delhi

 

The petitioner above-named respectfully states as follows:

 

1. This writ petition challenges the action of the respondent in blocking access to the Internet (Web) sites of some companies. As a result the petitioner is unable to access these Web sites. This also prevents him from sending electronic mail (Email) messages to the employees of these companies. It is the contention of the petitioner that this action of the respondent is wholly without basis in law and amounts to arbitrary and illegal censorship of the petitioner's Fundamental Right to freedom of speech, expression and information as well as an illegal denial of his right to freedom to practice his chosen profession. The action of the respondent is neither permitted by any statutory provision nor saved by Article 19 (2) or 19 (6) of the Constitution.

 

2. The petitioner is a software professional who is directly affected by the impugned action of the respondent. However, in the nature of his challenge is inherent a very powerful public interest. The nature of this public interest is elaborated herein below.

 

3. The Internet is a global network of close to 100 million people. It provides a vast range of telecommunication services including electronic mail, the World Wide Web and, more recently, telephony. With appropriate software that can be downloaded free, users who are logged onto the Internet can talk to each other anywhere in the word at no additional cost. Recently some companies have started services that allow such users to even talk to people who do not have an Internet connection, but only a regular phone, at a cost far below regular long distance charges.

 

4. Internet telephony is the cheapest and fastest way to provide affordable basic telecom services, which is why this technology enjoys phenomenal growth rates worldwide. According to InfoWorld Electric dated 29 Aug 97, analysts have predicted that shortly after the turn of the century, 50% of the world's communications will be carried over the Internet. Currently, a significant proportion of electronic communications consists of voice and fax, which are affected by the ban imposed by the respondent.

 

5. Voice applications make it possible, for instance, for people without access to a personal computer to send and receive voice mail, where sender and recipient only need to have access to a telephone. This has tremendous implications for India, where currently the Internet is effectively usable only by the very small subset of people who are rich enough to own a computer, and are fluent in English. These new developments can open up some parts of the Internet to the large majority of Indians who are poor, illiterate, or don't know English. Another very useful voice application involves the conversion of text to spoken speech. This is very easy with the aid of computers. Using such technologies people who cannot read or are mobile could benefit, at least to a limited extent, from the wealth of information available on the Internet.

 

6. Clearly, there is immense potential for software development in this new area, which bridges the large networks of conventional telephony and the Internet. India has a thriving software industry, which could take advantage of this. The VSNL ban is preventing this industry from keeping up with international developments since it effectively prevents such software development from taking place in India.

 

7. The facts of the case, relevant for a decision on the issues raised herein, are briefly stated below.

 

i) By a communication dated 5th January 1998 the respondent sent an Email message to all subscribers of its Internet service stating that:

"As you are aware, the usage of Telephony on the Internet is not permitted as per the terms and conditions of your Internet subscription and the Indian rules and regulations."

The message also stated that:

"You are advised not to use the Internet connection for Telephony or Fax applications. VSNL would be monitoring the use of Internet and those subscribers who are found to be violating the conditions of subscription, would be permanently debarred from using Internet services."

A copy of this message is annexed hereto, marked annexure P-1.

 

ii) The petitioner was not directly affected by this missive since he, in any case, did not use his Internet connection for "telephony" etc. However, as a software professional he is deeply interested in 'internet-telephony' as an "application" and the immense possibilities for developing software to exploit its full potential. Besides this, he moderates a discussion on the Internet carried out via the free mailing list - india-gii@cpsr.org - which has about 300 subscribers world-wide, and looks at developments in India relating to the global information highway.

 

iii) The petitioner, in the course of his work, sought to access Web sites on the Internet which, inter alia, provide information with regard to developments and software relating to 'internet-telephony'. (It is pertinent to note that these 'sites' do not need to be accessed in order to use "internet-telephony".) The petitioner found himself unable to access any of these Web Sites, or to send Email to the employees of the companies that own these sites. On complaining to the respondent about this he was first informed that this was probably a temporary fault or some error on his part in stating the address (URL) of the Web sites in question.

 

iv) On persisting with his efforts the petitioner discovered that his inability to access these sites was directly attributable to the respondent. On 1.4.98 he therefore wrote an Email to the "Internet help desk" of the respondent pointing out that the blocking of sites on the Internet was completely illegal and asking that the same be stopped forthwith. A copy of this letter is annexed hereto, marked annexure P-2.

 

v) On the same date the "Help Desk" of the respondent wrote back to the petitioner stating:

" Sir,

this site is not accessable (sic) from vsnl"

A copy of this reply is annexed hereto, marked annexure P-3.

 

vi) The petitioner had sent a similar letter (e-mail) to the office of the General Manager, Internet Services, Bombay. By letter dated 5.4.98 he too replied in the same vein, i.e.:

"As part of the contract terms and conditions, we don't encourage voice over ip."

A copy of this reply is annexed hereto, marked annexure P-4.

 

vii) It is pertinent to note that both the responses evaded the point raised by the petitioner. Namely, what was the raison d’ etre of blocking access to Internet sites. Instead, they both side-step the issue raised by pretending as if the petitioner was seeking to avail of "internet-telephony" services through the connection provided by the respondent.

 

viii) The petitioner filed a complaint dated 2.4.98, with the Telecom Regulatory Authority of India (TRAI, in brief), New Delhi, on the subject of censorship of Internet sites. The petition sought the intervention of the TRAI to determine whether VSNL is authorised to censor the Internet, what procedures if any are followed by VSNL in deciding which sites to censor, whether the user can appeal to any authority against such censorship in specific cases such as the one the petitioner was now facing, and asking VSNL to explain how the information on the ‘Vocaltec’ site could be a threat to national security, relations with friendly countries, in the public interest, or otherwise authorised under the Indian Telegraph Act of 1885. A copy of the said petition is annexed hereto, marked annexure P-5.

 

    1. The above petition was sent under cover of a letter addressed to the Chairman of the TRAI. This letter posed four questions that arise from the blocking of the Web sites by the respondent. These are:

 

"1) Is VSNL authorised to censor the Internet.

2) What procedures if any are followed by VSNL in deciding which sites to censor.

3) Can I, (the petitioner) as a user, appeal to any authority against such censorship in specific cases such as the one I am now facing.

4) Can VSNL explain how the information on the Vocaltec site would be a threat to national security, relations with friendly countries, or any of the other eventualities foreseen in the Indian Telegraph Act of 1885, which I presume is the basis for such censorship?"

 

x) Thereafter, over two months and several reminders later, the petitioner received a communication from the TRAI informing that in its reply the VSNL (respondent herein) has stated that:

"VSNL had claimed that in accordance with its terms and conditions on GIAS services and Indian Telegraph Act 1885, Internet telephony was banned, and VSNL advised its customers to desist from using telephony services on the Internet"

Once again the respondent evaded the real issue - of censorship – and replied as if access to certain Internet Web sites was synonymous with "internet-telephony". Further, despite the statement that the TRAI had sought ‘further clarifications’ from the respondent, there has been no further communication from the TRAI till date. A copy of the letter sent by the VSNL is annexed hereto, marked annexure P-6.

 

xi) In the meanwhile, by his letters dated 10.5.98 and 14. 5.98, the petitioner once again tried to elicit a straight answer to his above stated queries, directly from the respondent. However, no response has been received till date. Copies of the two letters are annexed hereto, marked annexure P-7, collectively.

 

xii) In the meanwhile, the respondent has announced that it is itself experimenting with Internet telephony and fax services in Bombay! This announcement makes it clear that the ban on Internet telephony (and the blocking of Web sites dealing with the subject) is wholly based upon the anxiety of the respondent to preserve its monopoly power.

 

8. Fundamental Rights jurisprudence is fairly well developed in this country. It is well settled that these rights must be broadly construed. In other words they must be construed in a way that furthers the interests of the citizens whose rights they guarantee rather than the short sighted monopoly interests of a State run enterprise. The Supreme Court, in the case reported as LIC vs. Manubhai D. Shah, 1992(3) SCC 637, has held that:

"A constitutional provision is never static, it is ever-evolving and ever-changing and, therefore, does not admit of a narrow, pedantic or syllogistic approach. If such an approach had been adopted by the American Courts, the First Amendment - (1791) - "Congress shall make no law abridging the freedom of speech, or of the press" - would have been restricted in its application to the situation then obtaining and would not have catered to the changed situation arising on account of the transformation of the print media. It was the broad approach adopted by the Court which enabled them to chart out the contours of ever-expanding notions of press freedom.... It will thus be seen that the American Supreme Court has always placed a broad interpretation on the constitutional provisions for the obvious reason that the Constitution has to serve the needs of an ever-changing society….. ….

…………………………………………………………………..

7.The same trend is discernible from the decisions of the Indian courts also. It must be appreciated that the Indian Constitution has separately enshrined the fundamental rights in Part III of the Constitution since they represent the basic values which the people of India cherished when they gave unto themselves the Constitution for free India. ... They, therefore, considered it of importance to protect specific basic human rights by incorporating a Bill of Rights in the Constitution in the form of fundamental rights. These fundamental rights were intended to serve generation after generation. They had to be stated in broad terms leaving scope for expansion by courts. Such an intention must be ascribed to the Constitution-makers since they had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution-makers employed a broad phraseology while drafting the fundamental rights so that they may be able to cater to the needs of a changing society. It, therefore, does not need any elaborate argument to uphold the contention that constitutional provisions in general and fundamental rights in particular must be broadly construed unless the context otherwise requires. It seems well settled from the decisions referred to at the Bar that constitutional provisions must receive a broad interpretation and the scope and ambit of such provisions, in particular the fundamental rights, should not be cut down by too astute or too restricted an approach………………………………………………

…………………………………………………………………...

8.The words "freedom of speech and expression"…. therefore, includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. ... subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. ...It cannot be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution….".

 

9. Information and communication are the flip side of "propagation", so far as freedom of speech and expression is concerned. None can exist without the others. Consequently a restriction upon access to sources of information and/or a restriction on the right to communicate with others is a violation of the right to freedom of speech and expression. Electronic mail cannot be distinguished from any other form of mail or communication. The concept is the same, only the medium has changed. This censorship can only be permitted if justified on the grounds (and for the reasons) permitted under Article 19(2). Guidelines or terms and conditions of contract or even statutory provisions can not stand in the face of this right unless they are covered within the four corners of Article 19(2). In the present case, it is submitted, there is no such justification for the blocking of access to the Web-sites mentioned above.

 

10. The denial of access to Web sites containing information on Voice

Applications over the Internet, is completely indefensible. As a nation we lag behind the affluent and technologically developed countries in almost every field. Software is one area where Indians have shown a natural aptitude. With relatively no infrastructure or support the Indian software industry has lifted itself by its bootstraps and achieved a position of some eminence. Voice applications over the Internet are one of the cutting edges of the ever expanding and evolving revolution in communications worldwide. Whether India permits or bans Internet telephony the application itself is here to stay. Even if the average Indian is to be denied the fruits of the latest technology "in the interests of the general public" the nation needs every rupee that it can earn from the development and sale, worldwide, of software and its applications. However because of the blocking of access to sites which provide vital information about the latest situation and trends in voice applications over the Internet software developers in India are greatly hampered in their efforts to develop quality software in this area. Such blockage can never be justified under either Article 19(2) or Article 19(6) of the Constitution.

 

11. The petition filed before the TRAI is not a bar to the filing of the present

petition. The said petition is not an "alternate remedy" in the generally accepted sense of the phrase. The TRAI, as its name suggests, is a regulatory authority and adjudication of claims arising out of the petitioner's constitutional or legal rights is not within its scope. It is doubtful whether the TRAI is competent to even interpret a statutory provision so as to lay down "law". A challenge to this effect, initiated by the Union of India, is in fact presently pending decision before this hon'ble court. In the circumstances the petitioner is fully justified in stating that he has no other equally efficacious remedy but to move this hon'ble court for relief.

 

  1. A grave miscarriage of justice will result in case the impugned action of

    2. the respondent is not struck down.

     

  2. The petitioner has not filed any other petition before this hon'ble court or

    3. any other court of competent jurisdiction seeking the same reliefs.

     

  3. The petitioner submits that he has no other equally efficacious remedy but

to move this hon'ble court for relief.

 

 

 

PRAYER

 

In the facts stated above, and the submissions made thereupon the petitioner prays that this hon’ble court be pleased to:

 

    1. issue a writ, order or direction in the nature of quo warranto asking the respondent to explain before this court the precise ‘warrant’ for the blockage of certain web sites on the Internet;

    2. in case no sufficient ‘warrant’ is forthcoming, issue a writ, order or direction in the nature of mandamus restraining the respondent from illegally blocking access to Web-sites on the Internet and directing them to forthwith ‘unblock’ the sites to which access may currently be blocked;

    3. grant the petitioner costs of these proceedings; and

    4. pass such other orders as may be thought fit in the facts and circumstances of the case.

 

 

 

Petitioner

Through

Ashok Agrwaal

Advocate

New Delhi 56 Todar Mal Road

Dated: New Delhi-110001

 

 

In the matter of:

A writ petition under Article 226 the Constitution

 

And

In the matter of:

Articles 19 (1) (a) and 19 (1) (g) of the Constitution

 

And

In the matter of:

The blocking of access to certain Web sites by the respondent, amounting to illegal censorship and a violation of the petitioner's Fundamental Rights

 

And

In the matter of:

Dr. Arun Mehta ..... Petitioner

 

Versus

 

V. S. N. L. ..... Respondent

 

To the chief justice and his companion justices of the High Court of Delhi at New Delhi

 

The petitioner above-named respectfully states as follows:

 

1. This writ petition challenges the action of the respondent in blocking access to the Internet (Web) sites of some companies. As a result the petitioner is unable to access these Web sites. This also prevents him from sending electronic mail (Email) messages to the employees of these companies. It is the contention of the petitioner that this action of the respondent is wholly without basis in law and amounts to arbitrary and illegal censorship of the petitioner's Fundamental Right to freedom of speech, expression and information as well as an illegal denial of his right to freedom to practice his chosen profession. The action of the respondent is neither permitted by any statutory provision nor saved by Article 19 (2) or 19 (6) of the Constitution.

 

2. The petitioner is a software professional who is directly affected by the impugned action of the respondent. However, in the nature of his challenge is inherent a very powerful public interest. The nature of this public interest is elaborated herein below.

 

3. The Internet is a global network of close to 100 million people. It provides a vast range of telecommunication services including electronic mail, the World Wide Web and, more recently, telephony. With appropriate software that can be downloaded free, users who are logged onto the Internet can talk to each other anywhere in the word at no additional cost. Recently some companies have started services that allow such users to even talk to people who do not have an Internet connection, but only a regular phone, at a cost far below regular long distance charges.

 

4. Internet telephony is the cheapest and fastest way to provide affordable basic telecom services, which is why this technology enjoys phenomenal growth rates worldwide. According to InfoWorld Electric dated 29 Aug 97, analysts have predicted that shortly after the turn of the century, 50% of the world's communications will be carried over the Internet. Currently, a significant proportion of electronic communications consists of voice and fax, which are affected by the ban imposed by the respondent.

 

5. Voice applications make it possible, for instance, for people without access to a personal computer to send and receive voice mail, where sender and recipient only need to have access to a telephone. This has tremendous implications for India, where currently the Internet is effectively usable only by the very small subset of people who are rich enough to own a computer, and are fluent in English. These new developments can open up some parts of the Internet to the large majority of Indians who are poor, illiterate, or don't know English. Another very useful voice application involves the conversion of text to spoken speech. This is very easy with the aid of computers. Using such technologies people who cannot read or are mobile could benefit, at least to a limited extent, from the wealth of information available on the Internet.

 

6. Clearly, there is immense potential for software development in this new area, which bridges the large networks of conventional telephony and the Internet. India has a thriving software industry, which could take advantage of this. The VSNL ban is preventing this industry from keeping up with international developments since it effectively prevents such software development from taking place in India.

 

7. The facts of the case, relevant for a decision on the issues raised herein, are briefly stated below.

 

i) By a communication dated 5th January 1998 the respondent sent an Email message to all subscribers of its Internet service stating that:

"As you are aware, the usage of Telephony on the Internet is not permitted as per the terms and conditions of your Internet subscription and the Indian rules and regulations."

The message also stated that:

"You are advised not to use the Internet connection for Telephony or Fax applications. VSNL would be monitoring the use of Internet and those subscribers who are found to be violating the conditions of subscription, would be permanently debarred from using Internet services."

A copy of this message is annexed hereto, marked annexure P-1.

 

ii) The petitioner was not directly affected by this missive since he, in any case, did not use his Internet connection for "telephony" etc. However, as a software professional he is deeply interested in 'internet-telephony' as an "application" and the immense possibilities for developing software to exploit its full potential. Besides this, he moderates a discussion on the Internet carried out via the free mailing list - india-gii@cpsr.org - which has about 300 subscribers world-wide, and looks at developments in India relating to the global information highway.

 

iii) The petitioner, in the course of his work, sought to access Web sites on the Internet which, inter alia, provide information with regard to developments and software relating to 'internet-telephony'. (It is pertinent to note that these 'sites' do not need to be accessed in order to use "internet-telephony".) The petitioner found himself unable to access any of these Web Sites, or to send Email to the employees of the companies that own these sites. On complaining to the respondent about this he was first informed that this was probably a temporary fault or some error on his part in stating the address (URL) of the Web sites in question.

 

iv) On persisting with his efforts the petitioner discovered that his inability to access these sites was directly attributable to the respondent. On 1.4.98 he therefore wrote an Email to the "Internet help desk" of the respondent pointing out that the blocking of sites on the Internet was completely illegal and asking that the same be stopped forthwith. A copy of this letter is annexed hereto, marked annexure P-2.

 

v) On the same date the "Help Desk" of the respondent wrote back to the petitioner stating:

" Sir,

this site is not accessable (sic) from vsnl"

A copy of this reply is annexed hereto, marked annexure P-3.

 

vi) The petitioner had sent a similar letter (e-mail) to the office of the General Manager, Internet Services, Bombay. By letter dated 5.4.98 he too replied in the same vein, i.e.:

"As part of the contract terms and conditions, we don't encourage voice over ip."

A copy of this reply is annexed hereto, marked annexure P-4.

 

vii) It is pertinent to note that both the responses evaded the point raised by the petitioner. Namely, what was the raison d’ etre of blocking access to Internet sites. Instead, they both side-step the issue raised by pretending as if the petitioner was seeking to avail of "internet-telephony" services through the connection provided by the respondent.

 

viii) The petitioner filed a complaint dated 2.4.98, with the Telecom Regulatory Authority of India (TRAI, in brief), New Delhi, on the subject of censorship of Internet sites. The petition sought the intervention of the TRAI to determine whether VSNL is authorised to censor the Internet, what procedures if any are followed by VSNL in deciding which sites to censor, whether the user can appeal to any authority against such censorship in specific cases such as the one the petitioner was now facing, and asking VSNL to explain how the information on the ‘Vocaltec’ site could be a threat to national security, relations with friendly countries, in the public interest, or otherwise authorised under the Indian Telegraph Act of 1885. A copy of the said petition is annexed hereto, marked annexure P-5.

 

    1. The above petition was sent under cover of a letter addressed to the Chairman of the TRAI. This letter posed four questions that arise from the blocking of the Web sites by the respondent. These are:

 

"1) Is VSNL authorised to censor the Internet.

2) What procedures if any are followed by VSNL in deciding which sites to censor.

3) Can I, (the petitioner) as a user, appeal to any authority against such censorship in specific cases such as the one I am now facing.

4) Can VSNL explain how the information on the Vocaltec site would be a threat to national security, relations with friendly countries, or any of the other eventualities foreseen in the Indian Telegraph Act of 1885, which I presume is the basis for such censorship?"

 

x) Thereafter, over two months and several reminders later, the petitioner received a communication from the TRAI informing that in its reply the VSNL (respondent herein) has stated that:

"VSNL had claimed that in accordance with its terms and conditions on GIAS services and Indian Telegraph Act 1885, Internet telephony was banned, and VSNL advised its customers to desist from using telephony services on the Internet"

Once again the respondent evaded the real issue - of censorship – and replied as if access to certain Internet Web sites was synonymous with "internet-telephony". Further, despite the statement that the TRAI had sought ‘further clarifications’ from the respondent, there has been no further communication from the TRAI till date. A copy of the letter sent by the VSNL is annexed hereto, marked annexure P-6.

 

xi) In the meanwhile, by his letters dated 10.5.98 and 14. 5.98, the petitioner once again tried to elicit a straight answer to his above stated queries, directly from the respondent. However, no response has been received till date. Copies of the two letters are annexed hereto, marked annexure P-7, collectively.

 

xii) In the meanwhile, the respondent has announced that it is itself experimenting with Internet telephony and fax services in Bombay! This announcement makes it clear that the ban on Internet telephony (and the blocking of Web sites dealing with the subject) is wholly based upon the anxiety of the respondent to preserve its monopoly power.

 

8. Fundamental Rights jurisprudence is fairly well developed in this country. It is well settled that these rights must be broadly construed. In other words they must be construed in a way that furthers the interests of the citizens whose rights they guarantee rather than the short sighted monopoly interests of a State run enterprise. The Supreme Court, in the case reported as LIC vs. Manubhai D. Shah, 1992(3) SCC 637, has held that:

"A constitutional provision is never static, it is ever-evolving and ever-changing and, therefore, does not admit of a narrow, pedantic or syllogistic approach. If such an approach had been adopted by the American Courts, the First Amendment - (1791) - "Congress shall make no law abridging the freedom of speech, or of the press" - would have been restricted in its application to the situation then obtaining and would not have catered to the changed situation arising on account of the transformation of the print media. It was the broad approach adopted by the Court which enabled them to chart out the contours of ever-expanding notions of press freedom.... It will thus be seen that the American Supreme Court has always placed a broad interpretation on the constitutional provisions for the obvious reason that the Constitution has to serve the needs of an ever-changing society….. ….

…………………………………………………………………..

7.The same trend is discernible from the decisions of the Indian courts also. It must be appreciated that the Indian Constitution has separately enshrined the fundamental rights in Part III of the Constitution since they represent the basic values which the people of India cherished when they gave unto themselves the Constitution for free India. ... They, therefore, considered it of importance to protect specific basic human rights by incorporating a Bill of Rights in the Constitution in the form of fundamental rights. These fundamental rights were intended to serve generation after generation. They had to be stated in broad terms leaving scope for expansion by courts. Such an intention must be ascribed to the Constitution-makers since they had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution-makers employed a broad phraseology while drafting the fundamental rights so that they may be able to cater to the needs of a changing society. It, therefore, does not need any elaborate argument to uphold the contention that constitutional provisions in general and fundamental rights in particular must be broadly construed unless the context otherwise requires. It seems well settled from the decisions referred to at the Bar that constitutional provisions must receive a broad interpretation and the scope and ambit of such provisions, in particular the fundamental rights, should not be cut down by too astute or too restricted an approach………………………………………………

…………………………………………………………………...

8.The words "freedom of speech and expression"…. therefore, includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. ... subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. ...It cannot be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution….".

 

9. Information and communication are the flip side of "propagation", so far as freedom of speech and expression is concerned. None can exist without the others. Consequently a restriction upon access to sources of information and/or a restriction on the right to communicate with others is a violation of the right to freedom of speech and expression. Electronic mail cannot be distinguished from any other form of mail or communication. The concept is the same, only the medium has changed. This censorship can only be permitted if justified on the grounds (and for the reasons) permitted under Article 19(2). Guidelines or terms and conditions of contract or even statutory provisions can not stand in the face of this right unless they are covered within the four corners of Article 19(2). In the present case, it is submitted, there is no such justification for the blocking of access to the Web-sites mentioned above.

 

10. The denial of access to Web sites containing information on Voice

Applications over the Internet, is completely indefensible. As a nation we lag behind the affluent and technologically developed countries in almost every field. Software is one area where Indians have shown a natural aptitude. With relatively no infrastructure or support the Indian software industry has lifted itself by its bootstraps and achieved a position of some eminence. Voice applications over the Internet are one of the cutting edges of the ever expanding and evolving revolution in communications worldwide. Whether India permits or bans Internet telephony the application itself is here to stay. Even if the average Indian is to be denied the fruits of the latest technology "in the interests of the general public" the nation needs every rupee that it can earn from the development and sale, worldwide, of software and its applications. However because of the blocking of access to sites which provide vital information about the latest situation and trends in voice applications over the Internet software developers in India are greatly hampered in their efforts to develop quality software in this area. Such blockage can never be justified under either Article 19(2) or Article 19(6) of the Constitution.

 

11. The petition filed before the TRAI is not a bar to the filing of the present

petition. The said petition is not an "alternate remedy" in the generally accepted sense of the phrase. The TRAI, as its name suggests, is a regulatory authority and adjudication of claims arising out of the petitioner's constitutional or legal rights is not within its scope. It is doubtful whether the TRAI is competent to even interpret a statutory provision so as to lay down "law". A challenge to this effect, initiated by the Union of India, is in fact presently pending decision before this hon'ble court. In the circumstances the petitioner is fully justified in stating that he has no other equally efficacious remedy but to move this hon'ble court for relief.

 

  1. A grave miscarriage of justice will result in case the impugned action of

    2. the respondent is not struck down.

     

  2. The petitioner has not filed any other petition before this hon'ble court or

    3. any other court of competent jurisdiction seeking the same reliefs.

     

  3. The petitioner submits that he has no other equally efficacious remedy but

to move this hon'ble court for relief.

 

 

 

PRAYER

 

In the facts stated above, and the submissions made thereupon the petitioner prays that this hon’ble court be pleased to:

 

    1. issue a writ, order or direction in the nature of quo warranto asking the respondent to explain before this court the precise ‘warrant’ for the blockage of certain web sites on the Internet;

    2. in case no sufficient ‘warrant’ is forthcoming, issue a writ, order or direction in the nature of mandamus restraining the respondent from illegally blocking access to Web-sites on the Internet and directing them to forthwith ‘unblock’ the sites to which access may currently be blocked;

    3. grant the petitioner costs of these proceedings; and

    4. pass such other orders as may be thought fit in the facts and circumstances of the case.

 

 

 

Petitioner

Through

Ashok Agrwaal

Advocate

New Delhi 56 Todar Mal Road

Dated: New Delhi-110001