Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

(2015) 1 LAW Martyrs Memorial Special Issue Annual Subscription Rs. 1200/- 

RNI No. APENG/2005/18975 : ISSN 2277 – 8829 

A world law fortnightly published from Hyderabad, India. 

Editor: I. Mallikarjuna Sharma 

ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India), 

R.V.R. Chandrasekhara Rao (Politics Professor), K. Subba Rao (Senior Advocate, Bangalore), 

Umesh Chandra (Senior Advocate, Lucknow), Ravi Kiran Jain (Senior Advocate, Allahabad), 

Sagar Dhara (Engineer, Hyderabad), Dr. Koenraad Elst (Indologist, Belgium) 

Volume 11: Part 1 15-31 March 2015 No. 5-6 

Bhagat Singh 

Sukhdev 

Azad 

Bismil 

Rajguru 

Please donate Rs. 100/- or more 1

2 (2015) 1 LAW 

RAJA BAHADUR VENKATA RAMA REDDY 

TELANGANA STATE POLICE ACADEMY 

Himayat Sagar, HYDERABAD - 500 091. 

Vision: 

To transform a “hitherto Law and Order oriented force 

into a Service Oriented one” 

Mission Statement: 

To impart professional training of outstanding quality to 

cutting edge level, frontline Police Executives and others 

connected with Criminal Justice System to enable them 

to serve the community in consonance with law, 

understanding its expectation; and respecting rights of 

the people in the cause of peace, tranquillity, safety and 

security in the society and position the Academy as a 

“Centre of Excellence” in the field of Police training. 

Director, TSPA 

Phone No. 040-24593380 Fax: 040-24593201 

e-mail: appatoday@gmail.com 

Advt. 

Law Animated World, 15-31 March 2015 

2

(2015) 1 LAW Martyrs Memorial Special issue Annual Subscription: Rs. 1200/- 

RNI No. APENG/2005/18975 : ISSN 2277 - 8829 

A world law fortnightly published from Hyderabad, India. 

Editor: I. Mallikarjuna Sharma 

ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India), 

R.V.R. Chandrasekhara Rao (Politics Professor), K. Subba Rao (Senior Advocate, Bangalore), 

Umesh Chandra (Senior Advocate, Lucknow), Ravi Kiran Jain (Senior Advocate, Allahabad), 

Sagar Dhara (Engineer, Hyderabad), Dr. Koenraad Elst (Indologist, Belgium). 

Volume 11: Part 1 15-31 March 2015 No. 5-6 

C O N T E N T S 

1. Wishing and waiting for a 

New Dawn 3 

2. Paruchuri Hanumantha Rao 

I.M. Sharma 5-10 

3. A Historical View of Law, 

V.V. Reddy 11-16 

4. The Zeitgeist Movement: 

A new train of thought (21) 17-24 

5. Autobiography of Martyr 

Ramprasad Bismil (1) 25-28 

6. Charlie Hebdo: Thinking 

New, Rethinking the Old 

Rousset Pierre 29-39 

7. They are one of us 

(l’Humanité editorial) 40 

8. Policing Belief: Impact of 

Blasphemy Laws on 

Human Rights (3) 41-44 

9. Historical inevitability or 45- 

Electoral corruption?(24) [IMS] 46 

10. Shreya Singhal v. Union of 

India [IND-SC] [S 66A IT Act] 47-86 

11. Quake Outcasts v. Minister 

for Canterbury Earthquake 

Recovery [NZ-SC] (1) 87-142 

12. Disengage with Pakistan 

completely! (Tarek Fatah) 143-144 

13. Legendary Hockey Player 

Major Dhyan Chand 145-146 

14. Poems, Ashfaq & Bismil 148 

Editorial Office: 6-3-1243/156, 

M.S. Makta, Opposite Raj Bhavan, 

Hyderabad - 500 082; Ph: 23300284 

E-mail: mani.bal44@gmail.com. 

Plate-making: Sai Likhita Printers, 

Hyderabad (Ph: 65545979); Printed at 

Pragati Offset Pvt. Ltd., Red Hills, 

Hyderabad - 500 004. (Ph: 23380000) 

WISHING & WAITING FOR A NEW DAWN 

That is what many of us have been doing ever since independence, 

especially since the turbulent sixties. This new dawn symbolism could be 

interpreted in two ways. One would be to see the entire decades since the 

‘transfer of power’ as a long dark night belying the aims and aspirations 

of innumerable martyrs of our freedom struggle and leaving but travails 

and tears for the people – still waiting for a new dawn that could bring in 

the much needed libertarian, welfarist sunlight. Another way of looking 

at could be that several dawns have come and gone by ever since but that 

we fondly dreamt of has eluded us so far. One set of rulers has come and 

gone, giving way to another, which meant not much in practical terms. 

Mannerisms and wordings may have changed, even radical democratic 

ethos oriented ideologies, laws and schemes might have come up, but yet 

real progress has not been made. A simple illustration would be of the 

so-called ‘radical and innovative’ Right to Information Act. Some good 

might have come about due to it in some places and times, but also many 

loopholes there for the authorities to avoid giving the needed information 

and make the process more costly and cumbersome for the people. 

Perhaps the good old method of petitioning to the public authorities, if 

buttressed by strong and quick judicial monitoring, could be more 

handy, inexpensive and beneficial to the people at large. Also we see the 

power and aura of mammon overwhelming almost all sections of society 

like a Macbethian tormenting spirit. The present get-rich-quick-by-anymeans 

trend is spelling doom to all the grand dreams of a glorious 

egalitarian society based on the mutual aid of a basically good-natured, 

well meaning citizenry. We see the basic needs of common people starkly 

neglected and the remedial mechanisms including courts reduced to 

more and more sloth and inefficiency. The new surge of free market 

economy generating an atmosphere of extreme alienation and misery 

among the people is ruining all chances of humane social progress. The 

only remedy is for the executive and judiciary, with the motto – small is 

beautiful and simple is workable – to feel and act as real public servants 

and not like lords divine/secular. Only when they begin to use public 

transport, live in duly alloted quarters and conduct on-the-spot enquiries 

often instead of closing their eyes and ears to the pleas of the common 

man, in a word return to the practice of ‘high thinking and plain living’, 

can they even think of rooting out the societal ills and it is the duty and 

task of we the people to make for such an eventuality by our concerted 

efforts and agitations, and usher in the fresh sunrise. ♣♣♣ 

Please donate Rs. 100/- or more. 3

4 (2015) 1 LAW 

TO GET A CLEAR INSIGHT INTO EVENTS AT HOME AND ABROAD 

READ 

MAINSTREAM 

Current Affairs Weekly 

Editor: SUMIT CHAKRAVARTTY 

Mainstream provides serious and objective analysis of contemporary developments affecting the nation. 

Mainstream offers wide interaction of thought and expression covering divergent viewpoints reflected in the 

democratic polity. 

Mainstream dissects all aspects of domestic politics, foreign affairs, national economy, problems of ecology 

and development, scientific and technological progress. 

Mainstream publishes invaluable documents of abiding relevance for global security, regional cooperation and 

India’s self-reliant advance. 

Get your copy from your 

news agent or write to us at 

MAINSTREAM 

145/1D, Shahpur Jat (First Floor), 

(Near Asiad Village), New Delhi - 110 049. 

All India Distributors: 

CENTRAL NEWS AGENCY 

4E/4 Jhandewalan Extension, New Delhi - 110 055. 

Price: Rs. 15/- 

SUBSCRIPTION RATES 

INLAND 

6 Months 1 Year 2 Years 3 Years Life 

Subscription* 

FOREIGN 

Air Mail 

(annual) 

Individuals Rs 300 Rs 500 Rs 900 Rs 1200 Rs 8000 Asia $ 85 

Institutions - - - Rs 600 Rs 1000 Rs 1500 Rs 10,000 Europe $ 100 

* Life subscription available only in India. America $ 120 

Surface Mail 

(annual) 

All Countries 

$ 80 

Please send subscription by Cheque/Postal Order/MO to Perspective Publications Private Limited, 

145/1D, Shahpur Jat (First Floor), (Near Asiad Village), New Delhi - 110 049; Ph: 26497188; 

Fax: 26569382; E-mail: mainlineweekly@yahoo.com; Website: www.mainstreamweekly.net. Please add 

Rs. 20/- to inland outstation cheques towards bank charges; all remittances to Perspective Publications Private Limited. 

Advt. 


4

PARUCHURI HANUMANTHA RAO 

Paruchuri Hanumantha Rao, 

son of Narsaiah and Ramamma, 

Born 16 January 1924 at Chittarpu, 

Divi Taluk, Krishna District. 

Died: 2 March 2015 at Hyderabad. 

[This interview taken in both the ordinary narrative, and answers 

to questions, forms.] 

* * * 

♣ Text of interview by IMS, dated Monday 27-01-2003 at 

Hyderabad; From IMS (Ed.), In Retrospect, Vol. 5, Pt. 2, 

pp. 465-476; Sri Hanumantha Rao is no longer with us; 

expired at about 4 PM on Monday, 2 March 2015 at the 

age of 91 years; our glowing tributes Sri Hanumantha 

Rao garu who was a dedicated communist activist, spent 

years in prison including in Cuddalore Jail during the 

1948-50 tumultuous period, later took to film and then 

printing industry, shined as nobody ordinarily does - all 

through his hard work and self-help and built up the great 

Pragati Printers, perhaps the No. 1 printing press in 

Hyderabad which also won many world class awards. He 

was always considerate and helpful towards the needs 

and demands of the people and especially very friendly 

towards all of us socialist roaders. He and Pragati Printers 

also helped most of our publications wholeheartedly and 

especially contributed and still contribute a lot to the 

printing of our world law fortnightly, LAW ANIMATED 

WORLD. My profound condolences to his family and 

friends; emphases in bold ours - IMS. 

- I. Mallikarjuna Sharma ♣ 

I was born in a poor peasant family of the 

Kamma community. My native village Chittarpu 

is at about 16 kilometres from Machilipatnam, in 

the Divi Taluk of Krishna District. When the big 

deluge devastated the Divi Seema in 1925 I was 

just one-year old and now I have completed 79 

and running 80. My father had only about 2 ½ 

acres of dry land but all the same we were not 

used to go to labour in others’ fields. The men in 

our family used to work hard in the fields but 

women used to mainly look after domestic work 

and then do any labour at home only but not go to 

the fields. My mother used to spin on the Charkha 

too in addition to the usual domestic jobs like 

peeling off the groundnut shells, piling tobacco 

leaves, etc. Gandhiji’s influence was no doubt 

behind the spinning but at the same time there 

was an economic aspect also to it. In childhood I 

used to tend cattle as herdsman and do light 

agricultural work too. 

A teacher was brought from Angalur, students 

were mobilized from door to door in our village 

and a night school was set up in which I studied 

up to 5th Class Telugu Medium. In 

Vakkalagadda, near our village, there was a 

school run by Bodi Narayana Rao who used to 

teach English also. I went to that school and 

joined 7th Class English Medium. Thereafter in 

Challapalli High School I studied 8th Class or III 

Form. At that time I joined the Scouts movement 

and also got acquainted with Chandra Rajeswara 

Rao, Challapalli Narayana Rao, Chandra 

Ramalingaiah, Kavuri Kutumba Rao, etc. Books 

like Gadar Veerulu (Gadar Heroes) and M.N. 

Roys’s articles inspired me very much. 

In 1936 elections we nationalist minded 

children used to go around with placards 

requesting people to vote for Gottipati 

Brahmaiah, Congress candidate who contested 

against the Challapalli Zamindar. The Zamindar 

was quite powerful those days and he ultimately 

won. But there was also a rumour that Gottipati 

5 

Law Animated World, 15-31 March 2015

6 Paruchuri Hanumantha Rao (I.M. Sharma) (2015) 1 LAW 

Brahmaiah took a bribe of Rs. 1500/- from the 

Zamindar and so deliberately did not carry out an 

active campaign; I do not know how far it was 

really true. By the time I came to 5 th Form, I read 

life histories of Bhagat Singh, Alluri Sitarama 

Raju and some of Roy’s books. I was very much 

inspired by Roy’s life history. However, there was 

no family tradition or influence at all on me which 

inspired me into the national movement; none among 

our relatives exerted any impact towards 

nationalism. While I was studying 5 th Form, a 

classmate of mine had written the slogan 

Swatantra Bharat ki Jai on the classroom wall. 

The class teacher and Head Master saw that and 

got enraged. I was the Class Monitor and so they 

asked me to divulge the name of the student who 

wrote that slogan. I knew him but since my 

revelation would ruin his career I refused to 

divulge and then the enraged school authorities 

expelled me from the school giving me a transfer 

certificate. I then joined the Hindu High School at 

Machilipatnam. I worked in the All India Students 

Federation (AISF) unit in Machilipatnam and 

joined the Praja Natya Mandali. I used to act on 

stage and also sing songs well. I had even got 

some prizes for singing some national songs on 

the theme of Royalaseema Famine. 

Later I joined a communist party cell in the 

company of G. Srihari and Chalapathi Rao. In 

1941 June the Germans attacked the Soviet Union 

which development gave rise to a radical change 

in the War situation. By that time I had written 

but failed in my S.S.L.C. Examinations. With the 

German attack on the Soviet Union the party 

policy also began to change and the People's War 

line was adopted by the end of 1941. In the 

summer of 1942 a big Anti-Fascist Camp was 

held under the auspices of the communist party at 

Kodali. I wrote my S.S.L.C. Examinations for a 

second time and afterwards went to participate in 

this Anti-Fascist Camp along with Mikkilineni 

Radhakrishna Murthy, Perumallu, Koganti 

Gopalakrishnaiah and Tatineni Prakasa Rao and 

others. Later the S.S.L.C. Results were published 

and I passed this time. Thereafter I joined the 

Intermediate in the Hindu College. In those days 

I was a good sportsman and used to play 

Basketball, Volleyball, Badminton, etc. quite well 

and this talent helped me in my academic career 

too. After my Intermediate I became University 

player in Basketball. In Intermediate also there 

was a two years gap in my studies. The reason 

was that in 1942 we students actively participated 

in the Quit India movement no matter whether we 

belonged to the Communist Party or Congress. So 

once I failed in Intermediate I year or so. I had 

taken Biology as one of my subjects and could 

not study properly. Then came the 1943 Bengal 

Famine and I had actively taken part in the 

campaign to collect funds for famine relief. We 

played several dramas and collected subscriptions 

and donations. All this we did in Bandar only. 

I played the role of a Shetty (Baniya - Komati) in 

one drama and all spectators who saw my role 

were very much impressed and even the Komatis 

of the town thought I also belonged to their caste; 

and came to me and asked whether I was also a 

Komati. Though my second year Intermediate 

Studies in the College were completed by 1944, 

since I failed in examinations, there was repeated 

backlog. And in 1946 I had to take an active part 

in election campaigns. As such it was only in 

September 1947 that I wrote the last 

supplementary examination to complete the 

Intermediate Course and immediately afterwards 

went to Bombay. The real purpose was to try for 

B.Sc. (Agriculture) seat in some college there. 

But actually I joined the Indian People’s Theatre 

(IPT) at Bombay. Durga Khote was the President 

and Balraj Sahani, K.A. Abbas were prominent 

office-bearers in IPT and I became acquainted 

with all of them. Since I was a member of the 

communist party and IPT was a front 

organization of the communist party, there was a 

party cell also in the IPT to direct the actual 

functioning of the front organization. Parvati 

Krishnan was also a party member associated 

with IPT. Mohammed Safdar (who later went to 

Pakistan), Balraj Sahani, one Suryam belonging to 

Veerullapadu (a wonderful singer), one dancer (I am 

not able to recollect his name now) and myself were 

in one party cell within IPT. Sailendra was also 

Law Animated World, 15-31 March 2015 6

(2015) 1 LAW Paruchuri Hanumantha Rao (I.M. Sharma) 7 

associated with our IPT. Actually he used to work 

in the Western Railway and inspired by our 

activities he wrote a nice and inspiring song. Raj 

Kapoor used to occasionally visit us and watch 

our activities and he very much liked that song 

and then took Sailendra to write songs for his 

films. Gradually under Raj Kapoor’s patronage, 

Sailendra became a great poet and writer of 

wonderful film songs. Raj Kapoor was never a 

member of the communist party but he was no doubt a 

sympathizer. That is why we can find the social 

consciousness against exploitation and oppression and 

urge for betterment of society very much manifest in his 

many films. There were about 2 lakh Telugu 

workers in Bombay and when the elections to 

Bombay Municipal Corporation were to be held, 

three of us – Veerullapadu Suryam, another 

person and myself formed a team of Telugu 

balladeers and campaigned for the communist 

candidates – Dange and others among the Telugu 

workers through our Burra Kathas. Dange had 

won as Municipal Corporator in those elections. 

However, I had no personal acquaintance with 

Dange. But I knew about him as a militant trade 

union and very learned communist leader. When 

his daughter Roza Deshpande was just a child 

once during a picketing before the Gates of a 

Factory he brought here and made her lie down 

across the Gate with himself and other workers 

also staging a sit-in as part of a militant dharna. 

Prior to going to Bombay, there were celebrations 

of the First Independence Day in Machilipatnam 

on 15 August 1947. At that time I was in 

Machilipatnam itself but though the communist 

party participated in the celebrations I personally 

refused to participate. Though I was specifically 

called by comrades to come and participate I did 

not go and replied to them that since anyway even 

the party considers it as a mere transfer of power and I 

consider it as a fake independence I saw no reason in 

celebrating the occasion. But the then leaders in the 

party at Machilipatnam, M. Srihari, V. Rama Rao 

and others did participate. In Machilipatnam we 

communist students generally used to stay 

together in rented houses and set up common 

messes. At first we about 10 progressive students 

established one Pragati Mess at Frenchpet and 

later only two of us - another comrade and I, 

began to stay together at Frenchpet. Communist 

leaders like Chandra Rajeswara Rao, Challapalli 

Narayana Rao and others used to be 

accommodated in our messes as and when the 

need arose. 

While I was at Bombay the entire Punjab was 

burning and suffering with cruel and 

unprecedented communal riots. In that 

background Sailendra had written a really moving 

song – Jalta hai Punjab Jalta hai, Bhagat Singh ka 

aankhon ka tara, Jalta hai Punjab Jalta hai!, etc. 

It became quite popular in those days. Kalyani, 

wife of Mohan Kumara Mangalam, was also a 

member in IPT. I also very much remember the 

situation in Bombay on the day of Gandhiji’s 

assassination, that is 30 January 1948. 

Immediately as the news of Gandhi’s 

assassination was broadcast there was great 

tension in the whole city and merchants and 

shopkeepers spontaneously downed the shutters 

and closed their establishments. There was a 

complete hartal in the city and an eerie silence. 

Another comrade and I were stranded in the midst 

of the city at that time and there was no public 

transport at all. The identity and religion of the 

assailant was not yet known clearly. Dadar had a 

lot of Muslim population and there was every 

danger of communal riots breaking down any 

moment if the assailant were to be a Muslim by 

any chance. In such a situation we walked all the 

way from Prince’s street to Kamatipura and later 

took shelter in a party office of ours. Luckily 

there were no communal riots since the identity 

of the assailant was ascertained as a Hindu 

fanatic. I did not pursue the B.Sc. (Agri) Course 

in Bombay but took my T.C. and came back to 

Machilipatnam in March-April 1948. Later, 

I joined the B.A. course in Hindu College, 

Machilipatnam. Dandamudi Subba Rao (in later 

days shot dead by the police) and Raavi Subba 

Rao (later became a famous Advocate) also joined 

there along with me. In those days other 

comrades and I were fully supporting the militant 

insurrectionary line of the party, especially the 

Telangana Armed Struggle. As against the Nizam 

7 



Rule we had propagated a lot by way of songs, 

sloganeering, etc. in Machilipatnam. Chalasani 

Venkateswar Rao and I were staying together in a 

room at Frenchpet in those days and some 

underground leaders of the party, especially 

Chalasani Srinivasa Rao, used to come and take 

shelter in our room. This Chalasani Srinivasa Rao 

was later shot dead by the police. Once the police 

raided our room and arrested both of us and kept 

us in sub-jail. After 3 days we got released on 

bail. Then some discussion went on inside the 

party as to what reply we accused should give if 

we were asked by the judicial officers as to our 

political identity – should we say we were 

communists or not. At last it was decided that we 

should own up our real political identity and say 

we were communists. Accordingly when at the 

trial of our case Chalasani Venkateswar Rao and I 

replied in the affirmative to the question as to 

whether we were communists, we were 

immediately put under detention and sent to 

Rajahmundry Central Jail where we were kept for 

3-4 months. Later we were transferred to 

Cuddalore Camp Jail where in all 350-400 

communist prisoners were confined. Kodali 

Satyanarayana, Katragadda Venkata Narayana 

Rao, Tammareddy Satyanarayana and others 

were there along with us. In the jail all of us 

communist detenues followed the then party 

policy and adopted militant tactics. This led to 

great friction with the jail authorities and I think 

when we violently resisted being locked up in 

nighttime a serious disturbance occurred and the 

armed police attacked us severely. Police resorted 

to firing also after first lathi-charging and then 

bayoneting. One Sitarama Rao, a peasant leader, 

was bayoneted to death. In the ensuing firings 

also one or two comrades died and several 

injured. At that time I was just beside the 

bayoneted peasant leader and immediately lied 

down and rolling my body over for a distance 

safely escaped from police clutches. Though 

Katragadda Venkata Narayana Rao, Tammareddy 

Satyanarayana, Kotaiah and others were injured, 

I was not. It was due to that injury that K.V. 

Narayana Rao became lame and Tammareddy 

Satyanarayana received a bullet injury in his 

hand. At last in the evening at 6 P.M. we 

communist detenues surrendered like defeated 

soldiers in a battle. At that time I fully supported 

and followed the Ranadive Line. 

In Cuddalore Camp Jail political classes used to 

be held daily and we received good education in 

History, Soviet Socialist Constitution, Political 

Economy and languages and we built up a good 

library. It was like a university to us. Comrade 

Vijayakumar from Vizag, Vallabha Rao, Tatineni 

Chalapati Rao, Koganti Gopalakrishnaiah were in 

our cultural team also and we used to stage some 

plays and sing revolutionary songs. Once I even 

acted in the roles of Comrades A.K. Gopalan and 

M.R. Venkatraman. 

There were intense discussions among us 

detenues as to whether it was proper to continue 

the armed struggle or withdrawal was necessary 

and inevitable. Some comrades like Koganti 

Gopalakrishnaiah could not withstand the severe 

repression by jail authorities and opted to get 

transferred to a separate camp. At this the 

extremists among us used to scold and abuse 

them but in such cases other comrades and I used 

to intervene and persuade the extremists not to be 

too hostile towards our erstwhile friends. There 

were comrades who stood fearless and unmoved 

at any amount of repression but there were also 

comrades with weak sentiments – some of them 

used to even weep aloud on hearing sentimental 

tragic stories in the Balanandam programme 

broadcast over All India Radio. Once 200 of us 

detenues went on an indefinite hunger strike on 

some important demands but about 50 withdrew 

in the middle. On the advice of Dr. Chelikani 

Rama Rao we all had taken one glass of jaggery 

solution (panakam) before starting the fast and 

that did a lot of good to our health condition. 

I continued the fast for 30 days. But later seeing no 

possibility of any amount of success we ourselves 

gradually stopped fasting. But we all got so weak 

and emaciated due to that prolonged fast that it 

took nearly one month for us to regain our former 

energy and strength. Ultimately, after 3 years of 


(2015) 1 LAW Paruchuri Hanumantha Rao (I.M. Sharma) 9 

detention, we were released sometime in 1951. 

I worked as correspondent for Vishalandhra at 

Madras for a long time after independence. I very 

much know about the fasting of Potti Sriramulu 

since I used to visit his camp and report the 

details to Vishalandhra. Bulusu Sambamurthy was 

seen there many times encouraging Sriramulu to 

continue his fast to death. He himself was eating fruits 

and talking when Sriramulu was fasting for days 

together which struck to me as somewhat odd. 

Sambamurthy himself refused to fast but used to 

say to Sriramulu who was much younger than 

him: “Hi, Sriramulu, you don’t have a wife or 

children. So continue to fight and die for the 

cause. You will earn a good name.” On the last 

day of the fast Chandra Rajeswara Rao and I 

went together to visit Sriramulu. However, it 

should be said to the credit of Sriramulu that he 

was always quite firm and never wavered in his 

determination to fast unto death. 

As for the controversy that the communists did 

not press for inclusion of Madras in Andhra Province, 

which was the chief demand of Potti Sriramulu, I can 

only say that it was an impractical demand. Already 

Madras was an overwhelmingly Tamilian 

majority city and though there was a talk of 

partition of Madras too at one time the Tamilians 

would never have agreed to it. On this aspect 

Prakasam Pantulu, Tenneti Viswanadham and us 

communists jointly held a big public meeting at 

Madras in the premises of Velagapudi 

Ramakrishna’s factory. There was no consensus 

in it but in their speeches Prakasam and 

Viswanatham declared that a resolution calling 

for the formation of Andhra State including 

Madras in it was passed and then quickly left the 

place. All people thought that the meeting was 

over and began to disperse. But Chandra 

Rajeswara Rao announced from the dais that the 

meeting was far from over, no consensus 

resolution was passed and called the people back. 

Narla Venkateswar Rao was asked to preside the 

meeting and Nagi Reddy gave a wonderful 

speech for about one hour patiently explaining 

the entire situation and ultimately a resolution calling 

for the immediate formation of the Andhra Province 

with al the undisputed areas included in it was passed. 

I think it was a wise resolution. I am of the 

opinion that it was our mistake to have given up 

Bellary, which was mainly a Telugu city, and not 

Madras, which was even then mainly a Tamil 

city. Later a huge public meeting was held at Law 

College Grounds, Madras on the issue of Andhra 

Province to which leaders from all parties were 

invited. There was a very tense and electric 

atmosphere and if anybody were to oppose 

inclusion of Madras in Andhra Province the 

audience would have thrown stones, etc. 

Velagapudi Ramakrishna from Justice Party, 

some Congress party leaders, Tenneti 

Viswanadham of Praja Party, Gowthu Latchanna 

and Tarimela Nagi Reddy from our communist 

party addressed the meeting. In that surcharged 

meeting Nagi Reddy spoke excellently for one 

hour in chaste Royalaseema Telugu without 

openly asking us to give up Madras but hinting 

that we should not insist on its inclusion, etc. and 

drew applause from the crowd. 

After the defeat in 1955 General Elections to 

the Andhra Assembly our Communist Party of 

India got very much disheartened and the entire 

apparatus of fulltime party workers was almost 

disbanded. Every worker was asked to look after 

his own livelihood and then if it was possible do 

free service for the party too. In such a situation I 

happened to enter the cine field for a time. 

Varalakshmi, C.V.R. Prasad, Kondepudi 

Lakshminarayana, and some others also entered 

the film arena at that time. Until then though I 

had taken part in IPT and possessed some cultural 

talents I was largely in the student organizational 

field or journalistic field as correspondent for 

Vishalandhra. Yarlagadda Ramakrishna Prasad, 

brother of Challapalli Zamindar, was somewhat 

friendly and sympathetic to us and had some 

progressive ideas. Of course he was mainly a 

businessman only but had good contacts and 

rapport with S.V. Narsaiah (SVK Prasad’s 

brother) and used to help our AISF activities. He 

wanted to establish a film studio in Hyderabad 

after the formation of Vishalandhra (Andhra 

Pradesh). Thus was born the Sarathi Studio at 

Amirpet, Hyderabad and I was asked to look after 

9 



its management at the ground level though 

Tammareddy Krishnamurthy was the designated 

Manager. So I resigned from Vishalandhra, came 

to Hyderabad to look after the construction and 

running of Sarathi Studio. The decision was taken 

in 1957 and I think by 1962 or so we had 

produced about 30 films in the Studio. We had a 

mind to encourage new faces to act as heroes and 

heroines in progressive type of films, which were 

to be made at a low budget. For this purpose we 

used to go to different colleges in the Twin Cities 

and attend their cultural functions, interact with 

the cultural troupes in the city, etc. to identify 

potential talents. We had produced a good film 

Maa Inti Mahalakshmi in the direction of which I 

also played a part. I attended the Nizam College 

Annual Day functions in search of new faces. We 

brought Prabhakar Reddy into the film industry. 

Dasarathi Krishnamacharya, the famous poet, 

was also brought into the cine field and he wrote 

some very good songs. Under the banner of 

Navayuga Pictures many good films were made. 

Later I quit from the cine field and started Pragati 

Press on 1 September 1962 in a small way. It was 

a letter composing and treadle printing press with 

a handful of workers and in the initial days my 

brother-in-law Nilakantheswar Rao contributed 

much in its management. This enterprise proved 

very lucky for us and by the dint of hard work 

and innovative methods we developed it bit by bit 

over the decades and now it is one of the best 

printing presses in entire Asia. Our press has now 

the latest technology at its command and my two 

sons, Narendra and Mahendra, the new 

generation boys, have taken the press to 

unprecedented heights. Now we are participating 

in exhibitions all over the world and have got 

orders from various places in the world. We use 

Internet frequently in our dealings. Punctuality, 

promptitude and neat and exquisite printing are 

our hallmarks and the one thing, which all 

customers can find in us, is RELIANCE. They 

can give us a job and forget about it. It will be 

carried out according to schedule and to their 

satisfaction and the product would reach them in 

time, if necessary at their doorstep. And the cost 

we charge is quite reasonable too. Recently we 

had participated in a printing exhibition in 

America in which our Stall became a cynosure. 

But for the 9-11 terror incident, which occurred at 

that time resulting in quick disbanding of the 

Exhibition, we could have secured a number of 

orders even from USA. I never imagined that our 

Press would grow to such great heights and I am 

really proud of it – especially of my two sons and 

the faithful and hardworking staff and workers. 

Earning money has never been my main 

consideration. What I always desired was 

satisfaction from success of my plans and toil. 

What I could not achieve in the political field I did 

achieve in the printing field. 

I know C.K. Narayana Reddy very well and 

I played a prominent part in his marriage in 

arranging him a match - Jayaprada, a girl related 

to us. Tapi Dharma Rao was the elder who 

performed their marriage. C.K. too entered the 

printing field round around the same time (as we 

did) but was not successful. But he published 

some good books and contributed to the success 

of the Hyderabad Book Trust, which is now 

running fairly well. I also know Ramoji Rao well 

all through his days of thick and thin and have 

always been helpful to him, especially his 

Eenadu. Even now I have good rapport with him. 

I still believe in the ideal and ideology of Socialism and 

think there is no better alternative to it for human 

welfare. I am not satisfied with the policies and working 

of the various communist parties and groups though. 

I desire a unity and vigour in the communist movement 

in our country. 

* * * * * 

Read and subscribe to: 

Analytical 

MONTHLY REVIEW 

Editor: SUBHAS AIKAT 

Annual subscription : Rs. 350/- 

Contact for details: 

CORNERSTONE PUBLICATIONS, 

Ramesh Dutta Sarani, P.O. Hijli Cooperative, 

KHARAGPUR - 721 306 (W.B.) 


A law may be formal or informal. An informal law 

may be an outcome of customs and traditions, accepted 

by the society and followed by the people – not 

enforced by a formal authority from above but 

from within. If any one violates the informal law 

he may be outcast. This fear of ostracization itself 

has the force of enforcement. On the other hand, 

the formal law is the official recognition of a social fact, 

enacted by a legislature and enforced by the state 

apparatus – the courts and the police. Therefore, 

the existence of a state becomes a prerequisite for the 

being and enforcement of law. 

Origin of the State: 

In the prehistory of mankind, some thousands 

of years before the Christian era, there existed 

what can be called a primitive communist society. 

In this society, land and other means of 

production were held in common; therefore, 

collective labor was applied in production, and 

the produce was shared by the families according 

to their needs. 

But due to the crude nature of the instruments 

of production, and labor, the production was very 

low – often insufficient to sustain life even. 

Hunger prevailed and population began to 

decline. At this juncture, some families had, by 

force or connivance, ‘stole’ the common property 

and transformed it into their private domain. Thus 

a new society was born – it was a slave society in 

which private property was the [all-embracing] 

economic base [– so much so that slave laborers 

were mere chattel of the slave-owners]. As such, 

Pierre Joseph Proudhon had aptly remarked: 

“Property is theft – but it gives power.” 1 

♣ Sri V.V. Reddy, Retd. Professor of Economics, REC {now 

NIT}, Warangal; duly edited; emphases in bold ours - IMS. 

1 

Pierre-Joseph Proudhon (15 January 1809 – 19 January 1865), 

a French politician, founder of mutualist philosophy, 

probably the first person to declare himself an anarchist 

and so considered by many as ‘father of anarchism’, 

a member of the French Parliament after the 1848 

revolution, thereafter referred to himself as a federalist. 

A HISTORICAL VIEW OF LAW 

- V.V. Reddy ♣ 

When property was monopolized by some, it 

meant others were denied of it. Therefore, slave 

society was split into have-nots – the slaves, and 

haves – the slave-masters; or, to put in another 

way, into antagonistic classes. In order to keep 

the slaves languishing in slavery, a coercive 

apparatus had become necessary. This apparatus 

came to be known as the State, with functions to 

safeguard the interests of the entire propertied i.e. 

the slave masters. 2 

A Greek philosopher by name Cleon (400 

B.C.) is said to have defined: “Democracy is of 

the people, by the people and for the people.” 3 

But in Greco-Roman societies by ‘people’ were 

meant only the ‘citizens’ i.e. the slave-masters, 

for slaves were only chattel to serve their masters. 

Aristotle (B.C. 384-322), considered a genius of 

the ancient world, wrote: “For that some should 

rule and others be ruled is a thing not only 

necessary, but expedient; from the hour of their 

birth, some are marked out for subjection, others 

for rule…” 4 As such the rulers have a self-interest 

His bitter comment on private property – ‘Property is 

theft!’ – Louis Blanc claimed, and Marx repeated, was 

taken from J.P. Brissot de Warville, a Girondin during the 

Great French Revolution. It is noteworthy that Proudhon 

himself stated: “Property is theft! That is the war-cry of 

’93!” and then said: “Property is Robbery!” However, it 

is undisputed that young Marx did greatly admire 

Proudhon and his seminal work ‘What is Property?’, and 

commended – “Not only does Proudhon write in the 

interest of the proletarians, he is himself a proletarian, 

an ouvrier. His work is a scientific manifesto of the 

French proletariat” – though later he disagreed with 

Proudhon's anarchism and published caustic criticisms of 

Proudhon - he wrote The Poverty of Philosophy in 

refutation of Proudhon's The Philosophy of Poverty. 

2 Frederick Engels, The Origin of Family, Private Property 

and the State, 1894. 

3 A. Brewer, Marxist Theory of Imperialism: 

A Critical Study, 1972, p. 56. 

4 Aristotle, Politics, tr: Benjamin Jowett, 

Kitchener, 1999, Book 1, Part V, p. 8. 

Aristotle 

11 


12 A Historical View of Law (V.V. Reddy) (2015) 1 LAW 

in property, the source of wealth. Only citizens 

were eligible to elect the law-making body, 

namely, the Senate. In other words, democracy in 

the slave society was only democracy for a few. 

Yet, the Greco-Roman societies made 

tremendous progress in economic development 

by using slave labour. Besides the Pyramids in 

Egypt, the Olympia in Rome, Gothic Cathedrals, 

Roman aqueducts (irrigation channels) stand for 

exemplary engineering skills. With the aqueducts, 

agriculture became the main occupation, and it 

was supplemented by animal husbandry. To assist 

agricultural production metallic tool-making 

developed;, silk-clothing and carpet weaving for 

the sake of slave-masters made a headway; and 

the army was equipped with deadly metallic 

weapons. More important was the growth of 

exchanges between the town and the country, 

specially accompanied by the growth of various 

handicrafts in towns. This meant that an urban 

civilization had emerged for the first time – that 

only in the slave society. 

One may wonder as to how the replacement of 

collective [community] property by private 

property could achieve economic progress. This 

is so because when a new mode of production 

negates the old and outdated one, progress does 

take place. Thus, when the slave mode of 

production was replaced by the feudal mode, 

further progress was made, and when the 

capitalist mode of production ousted the feudal 

mode, productive forces have grow sky-high. 

Accordingly, new laws are made with the old 

ones repealed or amended in order to aid and 

assist the new mode of production. 

Feudal Society: In spite of the economic progress 

of the Slave society, beyond a point, became a 

hurdle for the further advance of society. The 

slaves, who were the actual producers, had no 

material incentives in production. The whole 

product, save that necessary for their subsistence, 

was appropriated by the slave masters. Therefore, 

slave revolts became frequent and that despite an 

oppressive State. The one led by Spartacus 5 

finally caused the gradual replacement of outright 

slavery with debt bondage or serfdom and a new 

mode of production, the feudal system of society, 

came in its place. 

Death of Spartacus by Herman Voggel (1882) 

In the new society the slave-masters became 

landlords, and the slaves, peasant serfs. The 

peasants were allotted small plots of land for their 

own cultivation and subsistence, and in lieu had 

to work free on the estates of their lords for 

certain days in a week. This mode of production 

was better than the slave mode. For, the whole 

produce raised by the peasant was retained for 

himself, and provided sufficient incentive to work 

hard to raise the crop yield. The lord got his 

estate tilled by the peasants free of charge. 

5 

Spartacus (111–71 BC), a Thracian gladiator, one of 

the escaped slave leaders in the Third Servile War, a 

major slave uprising against the Roman Republic. 

This, interpreted by some as an example of oppressed 

people fighting for their freedom against a slaveowning 

oligarchy, has been an inspiration to many 

political thinkers, and featured in literature, television, 

and film [Howard Fast’s novel Spartacus makes him 

immortal in the progressive circles]. Neither any historical 

account nor any of the actions of the rebel leaders 

indicate that the rebellion was specifically aimed at 

ending slavery [ref: Wikipedia]. However, its long-term 

impact has been significant weakening of the slave 

system and ushering in of the serfdom or feudal mode 

of society. (Pic: Spartacus’ statue at Louvre Museum→) 


(2015) 1 LAW A Historical View of Law (V.V. Reddy) 13 

The feudal society inherited the legacy of the 

slave state, with the difference that there was no 

elected law-making body, except a hereditary 

one, e.g. the House of Lords in England. But in 

practice the King or the Emperor, was the sole 

authority to make or unmake the law by his so-called 

Divine Rights of the king. In effect, this amounted to 

autocracy. In spite of it, feudal mode of 

production made an advance in the growth of 

productive forces. Crafts and trades developed in 

cities and towns, and exchange of products 

between the town and the country had grown 

through money, which by then became a common 

medium of exchange. To put it in economic 

terminology, products became commodities, that 

is to say, goods to be bought and sold, and a 

market was formed. Along with these exchanges, 

the peasant serfs were transformed into tenant 

farmers, even on the estates, and the farmers paid 

a fixed rent (quit rent) to the landlords, usually 

two-thirds of the crop yields. Such high rents 

became a burden on the peasants. Frequent crop 

failures on account of the vagaries of nature and 

climate made the peasants rent defaulters. This 

forced some of the peasants to desert their lords 

and run away to the towns, and the landlords in 

turn run to the moneylenders. And, when 

landlords defaulted, they had to surrender their 

estates to their creditors. In turn, the creditors 

sold away the lands prosperous tenant farmers. 

Thus emerged a stratum of independent landowning 

peasants, which marked the decay of feudalism. 

BIRTH OF A NEW CLASS: Meanwhile, the 

traditional home-based crafts had developed into 

workshops. The workers were hired from urban 

poor and the runaway tenant farmers. The 

commodities were sold and raw materials 

purchased by a crop of traders who were paid a 

commission for their services. 6 In course of time 

the workshops became manufactories, and traders 

set up their network of sales and purchases. Thus 

was born a new class, known in the French as 

‘bourgeoisie’ – a middle class, an independent 

6 Maurice Dobb, Studies in the Development of Capitalism, 

1936, p. 212. 

class between the landlords and the peasants. As 

the bourgeoisie became economically strong, they 

began to demand equal rights on par with the 

aristocracy, abolition of tax exemption to the 

landlords, removal of restrictions on trade, 

including foreign trade. These demands were 

supported by the mercantilists, [forming] the first 

school of economic thought. Its spokesperson 

Thomas Munn (1571-1641 A.D.) wrote: “Although 

a kingdom may receive gifts in gold from others, 

but they are of small consideration. The ordinary 

means to increase our treasure is to expand our 

trade with foreign countries. This will also help 

the growth of home production, and increase tax 

revenue.” 7 Hard pressed for more revenue, 

England, and some European states, removed 

restrictions on home and foreign trade to meet the 

demands of the rising bourgeoisie for a free trade 

and enterprise. Some countries like England and 

Netherlands had set up trading companies to trade 

with foreign countries e.g. the [British]East India 

Company and the Dutch East India Company. 

Not satisfied with free trade, the bourgeoisie set its 

sight on state power. The Glorious Revolution in 

England (1688) had transferred all the powers of 

the Emperor to the House of Commons, and the 

king-emperor was made a titular head of state. 

The French Revolution (1789) overthrew the rule 

of the feudal aristocracy, and opened a new epoch 

of capitalism, whose economic philosophy is free 

trade, free enterprise and free competition. This 

philosophy helped the growth of productive 

forces to a level never known before. Even the 

Communist Manifesto (1848) written by Marx 

and Engels had to acknowledge: “The 

bourgeoisie, historically, has played a most 

revolutionary part. …The bourgeoisie, during its 

rule of scarce one hundred years, has created 

more massive and more colossal productive 

forces than have all preceding generations 

together.” 8 To put it metaphorically, some of the 

wonders of the world like the Pyramids and the 

7 Quoted by Eric Roll, History of Economic Thought, 1934, 

p. 116. 

8 Marx and Engels, The Communist Manifesto, pp. 15-17. 

13 



Taj Mahal pale away before the steam engine and 

the electric motor. Therefore, it was no surprise 

when man set his foot on the moon by the 70s of 

the 20 th century. All these achievements are due 

to harnessing of the forces of nature by human 

labour – both physical and mental – and molding 

it into a super-technology. Alas, today technology 

has also become a private property through intellectual 

property rights. That is, as said already, what the 

law does is only the official recognition of the fact. 

LEGITIMIZATION OF LAWS: In order to legitimize 

the existing laws, periodic elections are held to 

the law-making bodies. However, in the words of 

Prof. G.K. Galbraith, “In the USA people have 

votes, but only the rich vote, as the poor is 

indifferent because they are worried of their 

jobs.” 9 This is true, because not many American 

Presidents were elected with a majority of 

popular vote. Still, the laws, both old and new, 

become legitimized. Then, what is the nature of 

the legislature, a senate or a parliament? Let us 

listen to the well-known American journalist, 

McChesney: “Throughout the capitalist era, whether 

in the United States of America or elsewhere, so 

to speak, power has been ‘bought’. Not for nothing, 

the U.S. Senate was described as a rich man’s 

club when there were no direct elections to it. But 

when there are direct elections now, the same 

effect is produced.” 10 

9 

G.K. Galbraith, Good Society: A Human Agenda, 1998, 

p. 142. 

10 Robert W. McChesney, Power and Politics in the United 

States of America, 1987, p. 106. Douglas Dowd also 

quotes McChesney and says as follows: “Throughout the 

capitalist era, whether in the United States or elsewhere, 

power has (so to speak) been "bought." Not for nothing, 

for example, was the U.S. Senate called "the rich man's 

club" in the years termed "the gilded age," or "the great 

barbecue" when there was no direct election of senators. 

But when that changed, means were found to bring about 

the same result, with respect to the Senate as with other 

areas of government – in keeping with Woodrow Wilson's 

remark (made in 1912) that "When the government 

becomes important, it becomes important to control the 

government".” {Douglas Dowd, Capitalism & Its 

Economics: A Critical History, Pluto Press, London, 

2000, p. 8} 

Now, coming back home, India is described as 

the largest democracy in the world. But the 

Indian Parliament may also be described as a rich 

man’s club. In the General Elections of 2014, out 

of a total membership of 543, 316 of the elected 

parliamentarians were billionaires. 11 They too 

were elected with a minority vote. Why this 

happened? Compared to the first general elections 

(1951-52), election expenses had increased by 

more than hundred times. Now a candidate to the 

Parliament [ordinarily] has to spend no less than 

Rs. 20 crores. Therefore, only the very rich can 

contest in the elections. 

Indian Constitution: The way our Constitution 

was drafted and approved was itself questionable. 

Ten months before independence (November 

1946), when Britain decided to leave, a 

Constitution Assembly was elected by the 

provincial assemblies, which were themselves 

elected by a limited franchise on 10 March 1946. 

The total members of this Constituent Assembly 

were 389, out of which 286 were elected by the 

Provincial Assemblies and 93 were nominated by 

Princely States. After two years of deliberations a 

Constitution was adopted on 26 November 1949 

and came into force on 26 January 1950. 

The Preamble of the Constitution declares: 

“India is a sovereign, [Socialist, Secular] 12 

Democratic Republic,” and adds “We the People 

of India give to ourselves this Constitution.” How 

286 indirectly elected and 93 nominated members could 

call themselves as representatives of the people of India? 

This is a mockery of democracy. Further, the 

appellation ‘Socialist’ is false because Article 31 

recognizes private property and its acquisition as 

a fundamental right. How socialism can be 

achieved by private property? Perhaps, in order to 

pacify the people, the Constitution has included 

the Directive Principles of State Policy, some of 

which are: 

11 India Election Watch: Report on 2014 General Elections; 

the number of billionaires is based on the affidavits filed 

by the candidates along with their nomination papers. 

12 Added later by the 42 nd Constitution Amendment 1976. 


(2015) 1 LAW A Historical View of Law (V.V. Reddy) 15 

1. To secure adequate means of living to all 

citizens (Article 32); 

2. To prevent concentration of wealth in the 

hands of some in order to secure an egalitarian 

distribution of income (Article 22); 

3. To secure equal pay to equal work (Article 36); 

4. No child under the age of fourteen be 

employed in factories, mines or any other jobs 

(Article 39); 

5. To introduce free and compulsory primary 

education for all children (Article 45). 

But unlike fundamental rights, the directive 

principles are not justiciable [though they are said 

to be fundamental in the governance of the state]. 

They are only well-meaning promises. However, 

to date, none of the Directive Principles has seen 

the light of the day. For the Article 31 itself 

makes it impossible to implement the Directive 

Principles; 13 it makes Article 22 infructuous. As a 

13 Article 31 in the Original Constitution as adopted and 

come to be enforced in 1949-50 ran as follows: 

Right to Property: Compulsory acquisition of Property – 

31. (1) No person shall be deprived of his property save 

by authority of law. 

(2) No property, movable or immovable, including any 

interest in, or in any company owning, any commercial 

or industrial undertaking, shall be taken possession of or 

acquired for public purposes under any law authorising 

the taking of such possession or such acquisition, unless 

the law provides for compensation for the property taken 

possession of or acquired and either fixes the amount of 

compensation, or specifies the principles on which, and 

the manner in which, the compensation is to be 

determined and given. 

(3) No such law as is referred to in clause (2) made by 

the Legislature of a State shall have effect unless such 

law, having been reserved for the consideration of the 

President, has received his assent. 

(4) If any Bill pending at the commencement of this 

Constitution in the Legislature of a State has, after it has 

been passed by such Legislature, been reserved for the 

consideration of the President and has received his 

assent, then, notwithstanding anything in this 

Constitution, the law so assented to shall not be called in 

question in any court on the ground that it contravenes 

the provisions of clause (2). 

(5) Nothing in clause (2) shall affect – 

(a) the provisions of any existing law other than a law to 

which the provisions of clause (6) apply, or 

result, during the last 60 years concentration of wealth 

has increased manifold. The ten big industrial houses, 

led by Ambanis, own nearly one-fifth of the GDP, and 

India ranks third in the world, after the USA and 

China, in the number of billionaires. At the other 

pole, about 40% of Indians live below the poverty line, 

which number is not small, amounting to some 460 

million or equal to the population of Europe. 

A Monopolies and Restrictive Trade Practices 

Act was made in the late 60’s but many a time 

thereafter the upper limit of the value of corporate 

(b) the provisions of any law which the State may 

hereafter make (i) for the purpose of imposing or levying 

any tax or penalty, or (ii) for the promotion of public 

health or the prevention of danger to life or property, or 

(iii) in pursuance of any agreement entered into between 

the Government of the Dominion of India or the 

Government of India and the Government of any other 

country, or otherwise, with respect to property declared 

by law to be evacuee property. 

(6) Any law of the State enacted not more than eighteen 

months before the commencement of this Constitution 

may within three months from such commencement be 

submitted to the President for his certification; and 

thereupon, if the President by public notification so 

certifies, it shall not be called in question in any court on 

the ground that it contravenes the provision of clause (2) 

of this article or has contravened the provisions of subsection 

(2) of section 299 of the Government of India 

Act, 1935.” However, this Article 31, which made and 

declared the right to property a fundamental right, was 

later repealed by the Constitution (Forty-fourth 

Amendment) Act, 1978 w.e.f. 20-06-1979 thus taking 

out the right to property from the list of fundamental 

rights enshrined in Chapter III of the Constitution. 

However, the right to property was retained as a 

constitutional right by insertion, by the same Amendment 

Act, of Article 300A, which runs as follows: “Chapter IV: 

Right to Property: 300A. Persons not to be deprived of 

property save by authority of law. – No person shall be 

deprived of his property save by authority of law.” True, 

this author’s comments are mainly based on the old 

Article 31 which was a part of the fundamental rights 

chapter, but even with the repeal of that article and 

relegation of right to property to the status of a mere 

constitutional right, the protection, promotion and rabid 

capitalization and even concentration of private property 

is progressing in a nonchalant manner in our country 

belying the socialist goal proclaimed in the [amended] 

preamble. 




assets was raised upwards. There are anticorruption 

laws on the statute book, but they are 

toothless. As a result, black money is generated 

and deposited in Swiss banks, amounting to 

thousands of million dollars. Successive 

governments promised to bring back the black 

money, but in vain. [This shows the power of 

black money and how percipient and pertinent is 

that] Lord Acton’s remark: “Power corrupts, and 

absolute power corrupts absolutely.” 14 

Conclusion: Law by its very nature is negative. It 

orders people “not to do this or that – else you will be 

punished.” Therefore, people obey law out of fear of 

being fined or jailed. Still, lawbreakers abound – 

from ordinary thieves to big land-grabbers. The 

former cannot defend themselves by hiring 

lawyers, while the latter can afford going from 

the lower to the higher courts. Therefore, years, 

sometimes, decades, elapse, before justice is delivered. 

So, it is said: “Justice delayed is justice denied.” Then, 

what is Justice? It is an abstract word, difficult to 

be defined. Further, what was Justice in the past may 

become injustice today e.g. slavery. Likewise, 

charging interest on loans was considered 

immoral by Christianity, but under Capitalism it 

is lawful. Similarly, prostitution is still considered 

immoral, but it is an existing fact. When a fact is 

not recognized by law, it is no more a law. Dowry is 

banned by law, but the custom proved stronger. So 

there are few instances in India, where dowry is 

not given and taken. The same is the case with child 

marriages. Well then, what is the use of such law, when 

it cannot be enforced? 

* * * * * 

14 “I cannot accept your canon that we are to judge Pope 

and King unlike other men, with a favorable presumption 

that they did no wrong. If there is any presumption it is the 

other way against holders of power, increasing as the power 

increases. Historic responsibility [that is, the later judgment 

of historians] has to make up for the want of legal 

responsibility [that is, legal consequences during the rulers' 

lifetimes]. Power tends to corrupt and absolute power 

corrupts absolutely. Great men are almost always bad men, 

even when they exercise influence and not authority: still more 

when you super-add the tendency or the certainty of corruption 

by authority.” - Lord Acton (John Emerich Edward Dalberg) in 

his Letter to Archbishop Mandell Creighton (Apr. 5, 1887). 

PLEASE NOTE 

Two precious research based books on some aspects of 

freedom struggle in India, published by Marxist Study 

Forum, available for sale at 40% discount for individuals. 

1. REMEMBERING OUR REVOLUTIONARIES 

(Price: Rs. 300/-) by Prof. Satyavrata Ghosh; 

Ed: I.M. Sharma 

2. EASTER REBELLION IN INDIA: 

THE CHITTAGONG UPRISING 

by I. Mallikarjuna Sharma, Price: Rs. 360/-. 

“Recognized even by the British adversaries as ‘an amazing 

and daring coup’ which brought an ‘electric effect’ and 

‘changed the entire outlook of the Bengal revolutionaries’, 

the Chittagong Uprising played a glorious role and occupies 

an important place in the history of the Indian Freedom 

Struggle. In addition to giving rise to an unprecedented surge 

of revolutionary action by the Bengali youth, it also inspired 

lakhs of people all over India and gave a great fillip to the 

national movement. The historic role of the armed 

revolutionaries in our struggle for independence is generally 

overlooked or cast aside with mere lip service. The same fate 

generally befell the Chittagong revolutionaries too. 

This book as if atones for the general wrong done to these 

heroic rebels. It contains several precious and informative 

articles about the Irish Easter Rebellion and its inspiration to 

the Indian revolutionaries, and about the daring deeds and 

glowing sacrifices of the Chittagong revolutionaries led by 

Masterda Surya Sen… 

A book not to be missed by serious students of history or 

devoted patriots of the motherland…” 

MO/Cheques/DDs to be sent in favour of: 

I. MALLIKARJUNA SHARMA, 

H. No. 6-3-243/156, M.S. Makta, Opp. Raj Bhavan, 

HYDERABAD - 500 082 (A.P.) 

(Please add Rs. 75/- service charges) 


THE ZIETGEIST MOVEMENT : A NEW TRAIN OF THOUGHT ♣ 

PART III: A NEW TRAIN OF THOUGHT 

15. THE INDUSTRIAL GOVERNMENT- 

Modern politics is business politics...This is true both of 

foreign and domestic policy. Legislation, police surveillance, 

the administration of justice, the military and diplomatic 

service, all are chiefly concerned with business relations, 

pecuniary interests, and they have little more than an 

incidental bearing on other human interests. 789 

-Thorstein Veblen 

Political v. Technical Governance 

The nature and unfolding of the politically 

driven model of representative democracy, 

legislation creation and the sanctioned 

enforcement of law, are all borne out of natural 

tendencies inherent to the act of commerce and 

trade, operating within a scarcity-driven social 

order. 

The development of this commercial 

regulation and the rationale behind the very 

existence of “state governance” is quite easy to 

trace historically. After the Neolithic revolution, 

humanity's once nomadic patterns shifted toward 

a new propensity to farm, settle and create towns. 

Specialization flourished and trade was hence 

inevitable. However, given the possibility for 

imbalance and dispute, as regional populations 

grew and regional resources often became more 

scarce, a security and regulatory practice 

manifested to protect a community's land, 

property, trade integrity and the like. 

The use of an “army”, which is sanctioned to 

protect by public decree, became standardized, 

along with an adjacent legal or regulatory 

authority complex, sanctioned to essentially give 

power to a set group of officials which facilitate 

such policy creation, enforcement, trials, 

punishment practices and the like. 

♣ Courtesy: http://www.thezeitgeistmovement.com/; slightly 

edited; continued from Law Animated World, 

28 February 2015 issue; emphases in bold ours - IMS. 

789 The Theory of Business Enterprise, Thorstein Veblen, 

p. 269. 

This is mentioned here as there are many 

schools of economic thought in the early 21 st century 

that talk about reducing or even removing the state 

apparatus entirely, falsely assuming the state itself is a 

separate entity and the starting point of blame for current 

societal woes or economic inefficiencies. Yet, on the 

other side of the debate spectrum is a general cry 

for increased state regulation of the market to 

ensure more limits on business manipulation and 

hence work to avoid what has been often 

perceived as “crony capitalism”. 790 The truth of 

the matter is that this polarizing, false duality 

between the “state” and the “market” is blind to 

the true root cause of what is actually causing 

problems, not realizing that the dyad of state and 

market synergy is, in reality, a single power system in 

play, at once. 

Irrespective of the merit of any specific 

argument as to the favoring of the “free market” 

vs. the favoring of “state regulation”, all business 

dealings have historically required some level of legal 

mediation. This is because all transactions are a 

form of competition and all competition invites 

the possibility of fraud or abuse, given the natural 

pressure of external circumstances and the nature 

of survival itself, within the bounds of the 

scarcity-based market. The fact is, any form of 

commerce that exists in this scarcity-reinforced 

worldview, will manifest so-called “corrupt” or 

dishonest behavior constantly. It is firmly 

incentivized. The degree of corruption itself even 

becomes a matter of opinion, in fact. The line 

between accepted business acumen and blatant 

790 “Crony Capitalism” is defined as "A description of 

capitalist society as being based on the close 

relationships between businessmen and the state. 

Instead of success being determined by a free market 

and the rule of law, the success of a business is 

dependent on the favoritism that is shown to it by the 

ruling government in the form of tax breaks, 

government grants and other incentives" [ http://www. 

investopedia.com/terms/c/cronycapitalism.asp]. It is 

important to note that TZM does not believe in this 

distinction as it falsely assumes such collusion is 

avoidable. 

17 


18 The Zeitgeist Movement: A New Train of Thought (2015) 1 LAW 

dishonest persuasion is not an easy distinction to make 

today in the broad view. 

Therefore, some type of overriding decisionmaking 

power has always been granted to some group 

body to mediate conflicts and this is the seed of 

governmental power, as we know it. Yet, the punch 

line of the whole circumstance is that in a world 

where everything is powered by money; in a 

world where, in truth, everything is for sale, the 

rapid “corruption” of any such regulation or 

power establishment is also essentially 

guaranteed over time, to one degree or another. 791 

Put another way, there will always be a need for 

legal regulation of transactions in the market by some 

publicly sanctioned institution, and the market ethic will 

always corrupt such regulation to some extent with the 

influence of money because money and business are 

actually what make the world move. This is 

simply what is to be expected when the entire 

psychological foundation of existence is based on 

survival through acts of competitive self-interest, 

oriented by the universal assumption of empirical 

scarcity, with no real structural safeguards given 

to members of society for some reassurance in 

survival. To think any regulatory agency would 

not be susceptible to such corruption; to think state 

policy and hence coercion could not be 'purchased' like 

any other commodity is to deny the basic philosophical 

foundation inherent to the market's notion of 

“freedom” itself. 

Therefore, complaining about state regulation 

or lack thereof is ultimately a moot issue in the 

broad scheme of long-term societal change. True 

social change will not come about by the illusive 

preference of one of these over the other. It will 

791 Corporate Lobbying, which is legal across the world, is 

a perfect example. This is legal because commercial 

institutions are the backbone of economic development. 

Government gains income from taxation and the level of 

gain coming from that taxation is directly tied to the 

businesses that hire people and sell goods. Therefore, it 

is only natural to assume they should have input in 

political decisions, at least in theory. Yet, the moral 

hazard is obvious since their input will inevitably work 

to serve their business interests. Civil government is, 

in truth, business government. Ref: http://www. 

opensecrets.org/lobby/. 

only come about by installing a completely different 

system which eliminates both the market and the state 

as we know it, elevating the entire framework out of the 

narrow, competitive focus of managing scarcity in the 

current “earn a living or suffer” system, to a focus on 

facilitating a sustainable abundance and the 

meeting of human needs directly. 

So, the following economic and management 

information presents a vast departure from the 

current, day-to-day unfolding of life as we know 

it when it comes to commerce and social 

management. What this model does is literally 

remove the edifice of representative government and 

replace it with a kind of participatory democracy. This 

participation is mediated through digital 

communication methods that can bring the 

interests of the whole community into 

calculation, whether dealing with interests of the 

so-called “public” sector or the “private” sector. 

In actuality, there is no difference in the process 

of participation and hence there would no longer 

be a public or private sector. 

The importance of this kind of management 

resides in several areas. For one it assures that 

human social operation is in accord with basic 

sustainability principles needed to operate with 

generational longevity, whilst also maintaining a 

vigilant focus on producing the most strategically 

necessary goods at the peak technical capacity 

known at the time of production. Such 

management is also about removing the vast 

incentive and requirement for corruption and 

corrupt behaviors, abuse and business/ 

government collusion which has plagued 

civilization since antiquity. The active pursuit of 

abundance through these sustainable means ensures not 

only survival and efficiency, but stability, ease and a 

higher state of public health on a vast scale. 

Economic Model Defined 

An economic model is a theoretical construct 

representing component processes by a set of 

variables or functions, describing the logical 

relationships between them. If one has studied 

traditional or market-based economic modeling, a 

great deal of time is often spent on things such as 


(2015) 1 LAW The Zeitgeist Movement: A New Train of Thought 19 

price trends, behavioral patterns, inflation, the 

labor market, currency fluctuations, and so forth. 

Rarely, if ever, is anything said about public or 

ecological health. Why? – Because the market is 

life-blind and decoupled from the actual science of life 

support and sustainability. It is a proxy system that is 

based only around the act of exchange and exchange 

preferences. 

Therefore, the best way to think about a NLRBE is 

not in the traditional terms of any form of marketoriented 

economic model common today. Rather, this 

model can best be thought about as an advanced 

production, distribution and management system, which 

is democratically engaged by the public, through a kind 

of “participatory economics”. 

This type of approach facilitates input 

processes, such as design proposals and demand 

assessment, while also filtering all actions 

through what we could call sustainability and 

efficiency protocols. These protocols are the basic 

rules of industrial action set by natural law, not 

human opinion. As noted, neither of these two 

interests is structurally inherent in the capitalist 

model. 

Goals, Myths & Overview 

All economic systems have structural goals and often 

times these goals are not exactly apparent in the theories 

set forward in principle. The market system and a 

NLRBE have very different structural goals. 

– Market capitalism's structural goal is growth and 

maintaining rates of consumption high enough to keep 

enough people employed at any given time. Likewise, 

employment itself requires a culture of real or 

perceived inefficiency and that often means the 

preservation of scarcity in one form or another. 

– A NLRBE's goal is to optimize technical efficiency 

and create the highest level of abundance possible, 

within the bounds of Earthly sustainability, seeking to 

meet human needs directly. 

That noted, there are a number of assumptions, 

myths and confusions that have arisen over time 

that are worth addressing upfront. The first is the 

idea that this model is “centrally planned”. What 

this assumes, based on historical precedent, is 

that an elite group of people will make the 

economic decisions for the society. 

A NLRBE is not centrally planned. It is a 

Collaborative Design System (CDS). It is based 

entirely upon public interaction, facilitated by 

programmed, open-access systems, that enable a 

constant, dynamic feedback exchange that can 

literally allow for the input of the public on any 

given industrial matter, whether personal or 

social. 

Given this, another outcry is “but who programs 

the system?”, which once again assumes that an 

elitist interest could exist behind the mediating 

software programs themselves (as will be 

expanded upon more so in this essay). The answer, 

as odd as it may sound, is everyone and no one. The 

tangible rules of the laws of nature, as they apply 

to environmental sustainability and engineering 

efficiency, are an objective frame of reference. 

The nuances may change to some degree over 

time, but the general principles of efficiency and 

sustainability remain, as they have been deduced 

by basic physics, along with several thousand 

years of recorded history by which we have been 

able to recognize basic, yet critical patterns in 

nature. 

Moreover, the actual programming utilized by this 

interactive system would be available in an open source 

platform for public input and review. In fact, the 

system is predicated entirely upon the intelligence 

of the “group mind” and the open source/open 

access sharing virtue will help bring all viable 

interests to the surface for public consideration, in 

an absolutely transparent manner. 

Another confusion surrounds a concept that 

has, to many, become, the defining difference 

between capitalism and most all other historically 

proposed social models. That has to do with 

whether the “means of production” is privately owned 

or not. In short, the means of production refers to 

the non-human assets that create goods, such as 

machinery, tools, factories, offices and the like. In 

capitalism, the capitalist owns the means of production, 

by historical definition. 

19 



There has been an ongoing argument for a 

century that any system that does not have its means of 

production owned as a form of private property, using 

currency as the information mechanism, is not going to 

be as economically efficient as one that does. This, as 

the argument goes, is because of the use of the 

price mechanism. 792 

Price, to its credit, has the ability to create 

exchange value amongst virtually any set of 

goods due to its divisibility. This creates a 

feedback mechanism that connects the entire 

market system in a certain, narrow way. Price, 

property and money work together to translate 

subjective demand preferences into semiobjective 

exchange values. The notion of “semi” 

is employed here because it is a culturally relative 

measure only, absent almost every factor that 

gives true technical quality to a given material, 

good or process. 

Arguably, the only tangible technical data 

price that embodies, crudely, relates to a 

resource's 'scarcity' and the 'labor energy/ 

complexity' put into the creation of a given good. 

Keep this in mind, as these two value variables 

will also be addressed again later in this essay 

with respect to non-price oriented calculation. 

That all noted, the reasonable question 

becomes: is it possible to create a system that can more 

efficiently facilitate feedback with respect to consumer 

preference, demand, labor value and resource or 

component scarcity, without the price system, subjective 

property values or market exchange? The answer is 

yes. The modern solution is to completely eliminate 

exchange and create a direct control and feedback link 

between the consumer and the means of production 

itself. The consumer actually becomes part of the 

means of production and the industrial complex as a 

whole becomes a tool that is accessed by the public, at 

will, to generate goods. 

To illustrate this, most today likely own a 

simple paper printer connected to a home 

computer. When a file is sent to print from the 

computer, the user is in control of a miniature 

792 This objection is common to the Austrian school of 

economics. Reference: http://mises.org/econcalc.asp. 

version of a means of production. Likewise, in 

some cities today, there are now 3D printing labs, 

where people in the community can send their 3D 

design and use these machines to print what they 

need in physical form. The model being presented 

here is a similar idea. The next step in this scaling 

process is the creation of a strategically automated 

industrial complex, localized as much as possible, which 

is designed to produce, through automated means, the 

average of everything any given region has found 

demand for. As will be described, this is very 

feasible given the current state of technology and 

the ephemeralization trends at hand. 

Imagine, for example, a clothing store except 

that is not organized like a "store" as is currently 

understood. It is a multi-purpose textile-printing 

house. You find the design you are interested in 

online, along with the materials you prefer and 

other customizations, and you print that article of 

clothing “on-demand” at that facility. Consider for a 

moment how much storage space, transport 

energy, and overrun waste is eliminated by this 

approach if virtually everything could be created 

on-demand, done by automated systems which 

can continually produce a greater variety of 

goods, from increasingly smaller manufacturing 

configurations. 

In truth, the real fallacy of this “private ownership 

of the means of production” objection is its culture lag. 

Today, industry is witnessing a merger of capital 

goods, consumer goods and labor power. Machines 

are taking over human labor power, becoming 

capital goods, while also ever reducing in size to 

become consumer goods. The result is an 

increasingly smaller and more optimized industrial 

complex that can do more and more with less and less. 

It is also worth mentioning that labor automation is 

now making the historically notable 'labor theory of 

value' 793 increasingly moot as well. Today, the labor 

energy that goes into a given good, while still a 

factor for process recognition, does not have 

much of a quantifiable correlation anymore. 

Today, machines now make and design machines. 

793 Reference: investopedia.com (http://www.investopedia. 

com/terms/l/labor-theory-of-value.asp). 



While the initial creation of a machine might 

require a good deal of human planning and initial 

construction at this time, once set in motion, there 

is a constant decrease in that labor value 

transference over time. 

Structure and Processes 

As will be described in detail by section, 

figure 1 shows the linear schematic of the 

industrial process, moving from design to 

production to distribution and recycling. Figure 2 

shows how an optimization of such efficiency can 

be considered from a mathematical point of view, 

as a minimization or maximization of some 

functional. 

Because we are talking about efficiency, we 

can consider the problem as a maximization of 

the production function. Figure 3 is a table of 

symbols and descriptions, as will be used in the 

following explanations. It is important to note 

that not all attributes will be covered in this text. 

The purpose of this essay and the formulas 

suggested are done so to give a starting point for 

calculation, highlighting the most relevant, 

overarching attributes for consideration. 

A full algorithmic calculation of this nature, 

taking into account all related sub-processes in 

21 



real life terms would require an enormous 

text/programming treatment and will likely occur 

in a future edition of this text's appendix, as an 

ongoing project development. 

Collaborative Design Interface 

The starting point for interaction in a NLRBE is the 

CDI, or collaborative design interface. The CDI could 

abstractly be considered the “new “market” or the 

market of ideas or designs. Design is the first step 

in any production interest and this interface can 

be engaged by a single person; it can be engaged 

by a team; it can be engaged by everyone. It is 

open source and open access and it would come 

in the form of an online web interface. 

The notion of “market” is expressed here not to 

conflate the notion of trade, but rather the notion of 

sharing and group decision-making. As with the 

traditional sales market, there is a swarm type of 

behavior which makes decisions over time as a 

group whole with respect to what goods will 

develop (demand) and what goods will perish 

(lack of demand). In a certain sense, this 

democratic process is embraced in a NLRBE, but 

by different means. 

Moreover, all submitted designs, in creation or 

deemed complete, are stored in an open access, 

searchable database. This database makes all 

designs available for others to use or build upon. 

In this way, it is similar to a traditional goods 

catalog commonly found today, except it contains 

digital designs that can be sent into production at 

any time, on demand. 

This design creation and proposal system is 

how demand itself is assessed. Instead of traditional 

advertising and the unidirectional consumer good 

proposal system - where companies work to persuade 

the consumer as to what they should buy, with the 

public mostly going with the flow, favoring or not 

favoring a company's pitched good, component or 

feature by purchase or not - this system works in an 

opposite, more involved and democratic manner. 

In this new, open source type design approach, 

the entire global community has the option of 

presenting ideas for everyone to see, weighing in on and 

building upon designs, harnessing the power of 

collective experience and global knowledge. 

The mechanism of the CDI would come in the 

form of an interactive interface, such as we see 

commonly today with computer-aided design 

(CAD) or computer-aided engineering (CAE) 

software. In short, these programs are able to 

digitally create and represent any given product 

design, containing all information as to how it 

should be made in final, physical manufacturing. 

Above: CAD Interface Design Example 

As an aside, many considering the educational 

requirements to engage such an interface, might 

be concerned about use-complexity. Naturally, 

the more dedicated designer will develop the 

skills needed to whatever degree interested while, 

for the more casual user, different degrees of 

interface complexity and skill orientation can be 

utilized. 

This more user-friendly interfacing can 

develop in a similar fashion to how personal 

computers transitioned from complex proprietary 

coding interfaces with manually input 

instructions, to the now ubiquitous, simple 

graphic interface icon system, which allows users 

to operate more intuitively. Future CAD/CAE 

type programs will likely evolve in the same way, 

making the interactive process more accessible. 

In many cases, as the database is always 

populated with current, already existing designs, 

the practice will be to build upon other's work. For 

example, if an engineer is interested in the 

optimization of a cell phone, they have the option of 



building upon any existing phone product design in the 

database, rather than starting from scratch. 

The benefit of this cannot be emphasized 

enough as a collaborative platform. Rather than 

limit the design input to, say, a boardroom of 

engineers and marketers, as is common practice 

today, literally millions of minds can be brought 

together to accelerate any given idea in this approach. 

This new incentive system also ensures everyone 

interested in the good will receive exactly what 

everyone else is likely to receive in its advanced 

optimization states, where personal interest becomes 

directly tied to societal interest. 

Also, given the patterns today, likely not 

everyone would want or need to be a designer. 

Many people would be satisfied enough by what had 

been set in motion already by others, with perhaps 

minor customization along the way. Today, a very 

small percentage of the population actually create 

and engineer the dominant technology and goods 

we use; and this specialization may naturally 

continue in the future to some degree, even 

though it is to the advantage of everyone if more 

minds came together. If the educational system is 

orientated away from rote learning and its antiquated 

basis that originated in the 19 th century social order, we 

could see an explosion of input and creativity. 

All that understood, an incredibly important 

component of these design and engineering 

programs today is how they can now incorporate 

advanced physics and other real world, natural 

law properties with the proposed design for 

testing. In other words, the good isn't just viewable in 

a static visual model with noted properties, it can 

actually be tested right there, virtually, to a relevant 

degree. 

For instance, all new automobile designs 

today, long before they are physically built, are 

run through complex digital testing processes that 

assist in design integrity greatly. 794 Over time, 

there is no reason to believe that we will not be 

able to digitally represent, and set in motion for 

794 Reference: Engineering revolution: CAD/CAE 

advancements changing vehicle development. (http:// 

wardsauto.com/news-amp-analysis/engineering-revolutioncadcae-advancements-changing-vehicle-development) 

testing, most all known laws of nature, applying 

them in different contexts, virtually. 

Optimized Efficiency Standards: 

Efficiency standards are standards by which a 

given design must conform. This evaluation will 

be calculated automatically, or algorithmically, 

by the CDS's programming. This can also be 

thought of as a filtering process. 

In short, any proposed design will be digitally 

filtered through a series of sustainability and 

efficiency protocols which relate not only to the 

state of existing resources, but also to the current 

performance of the total industrial system. 

These would include the following “efficiency 

standards”. 795 

a) Strategically Maximized Durability 

b) Strategically Maximized Adaptability 

c) Strategic Standardization of Genre Components 

d) Strategically Integrated Recycling Conduciveness 

e) Strategic Conduciveness for Labor Automation 

Figure 4. Symbolic Logic for the “Optimized Design Efficiency” function 

As per figure 4, design efficiency is one of the 

main factors that can affect the overall efficiency 

of the manufacturing and distribution process. 

This design efficiency depends on several key 

factors, which can be called current efficiency 

standards . Here the index corresponds to some 

particular standard. 

Each standard will be generally explored as 

follows, expanding in certain cases with respect 

to the symbolic logic associated, for the sake of 

clarity. 

a) ‘Strategically Maximized Durability’ means to 

make the good as strong and lasting as relevant. The 

materials utilized, comparatively assuming 

possible substitutions due to levels of scarcity or 

other factors, would be dynamically calculated, 

795 Please note these protocols were also addressed in the 

essay True Economic Factors, in the context of 

“microeconomic components”, with mild variation in 

the language. 

23 



likely automatically by the design system, to be 

most conducive to an optimized durability 

standard. 

Durability maximization. 

This durability 

maximization can 

be considered as a local optimization issue. It can 

be analyzed by introducing the factors which 

affect it where are some optimal values 

of the factors. 

number of goods can be produced with the least 

variation of materials and production equipment. 

This is denoted by human labor and 

automated labor . The aim is to minimize the 

human interaction with the production process. 

This can be written as: 

Using this equation, we could also write a 

simpler condition: 

b) ‘Strategically Maximized Adaptability’ 

means the highest state of flexibility for 

replacing component parts is made. In the event a 

component part of a good becomes defective or 

out of date, the design facilitates that such 

components are easily replaced to maximize full 

product life span, always avoiding the interest to 

replace the good as a whole. 

c) ‘Strategic Standardization of Genre Components’ 

means all new designs either conform 

to or replace existing components which are either 

already in existence or outdated due a lack of 

comparative efficiency. This logic should not only 

apply to a given product, it should apply to the 

entire good genre, however possible. 

The aim is to minimize the total number of 

genre components In other words, the 

standardization of the process will enable the 

possibility of lowering the number to a 

possible minimum. 

d) ‘Recycling Conduciveness’ means every design 

must conform to the current state of regenerative 

possibility. The breakdown of any good must be 

anticipated in the initial design and allowed for in 

the most optimized way. 

e) ‘Strategic Conduciveness for Labor Automation’ 

means that the current state of optimized, automated 

production is also taken into account, seeking to refine 

the design to be most conducive to production with the 

least amount of complexity, human labor or monitoring. 

Again, we seek to simplify the way materials and 

production means are used so that the maximum 

Law Animated World, 15-31 March 2015 24 

where are factors that influence human and 

automatic labor. 

So, returning to Figure 4, this “Optimized 

Design Efficiency” function can be described by 

a function where is durability, 

is adaptability, is recycling 

conduciveness, is the minimum number of 

genre components and is a human labor. 

The Industrial Network 

The industrial network refers to the basic 

network of physical facilities that are directly 

connected to the design and database system just 

described. The system connects servers, 

production facilities, distribution facilities and 

recycling facilities. (Figure 5) 

Design Servers: 

Figure 5. Industrial Network visual aid 

These computer servers connect the design 

database to the designers/consumers, while 

constantly being updated with relevant physical 

data to guide the process of product creation in 

the most optimized and sustainable way. 

(to be continued)

AUTOBIOGRAPHY OF MARTYR RAMPRASAD ‘BISMIL’ ♣ 

PART 1: 

In Tomargarh on the banks of 

Chambal River are situated two 

villages, which are quite famous [or 

notorious] in the entire [native] 

state of Gwalior, since the people 

inhabiting the villages are quite 

rough and tough, and bother the 

least about the power of the state. The tenor of 

the landlords and landowners there is such that 

they would pay the land revenue only when they 

feel like and refuse to pay whenever they don’t 

like. If at all the Tahsildar or any other 

responsible officer of the Government visits [in 

order to extract the revenues due] these 

landowners just retire into the rugged hinterlands 

[beehad – the ravines of Chambal] and stay there 

incognito for months together, taking along with 

them their cattle and food articles, etc.! And they 

don’t leave any valuable article in their houses 

which could be attached and sold in auction in 

lieu of the revenues due. And there is a story 

running rife about a particular landlord that only his 

stubborn refusal to pay the revenue ultimately resulted 

in waiving any payment of land tax by him and a free 

grant of land was made! That person was running 

away from law for several years but was 

ultimately caught due to betrayal and locked up. 

The revenue officials of the Tahsil tortured him a 

lot and they tied him up and let him languish with 

no food or water for several days and finally even 

threatened to burn him alive. Actually hay was 

spread over his legs and it was even set on fire. 

But his stubborn reply always was a blatant 

refusal and that the treasury of the Maharaja of 

Gwalior would not dry up just because of non- 

♣ Perhaps this is the first ever autobiography of an Indian 

condemned prisoner – smuggled out and published soon 

after his hanging on 19-12-1927 in Gorakhpur Jail, of Sri 

Ramprasad Bismil, the Kakori Conspiracy Case 

revolutionary; it is remarkable that this was written and 

published some 15 years before the famous ‘Notes from 

Gallows’ of Julius Fuchik, a Czech communist, executed 

by the Nazis, had been written; translated from Hindi, 

and duly edited, by me; emphases in bold ours - IMS. 

payment of revenue by him alone. Oh how many 

know that there are certain persons in this world 

who pull on their lives by mere stubbornness? 

Fed up, the revenue officials finally sent their 

report to the royal office and the outcome was 

that all that land for which revenue payment was 

due over years was given as a grant to that 

stubborn landowner! 

Similarly once the people of these two villages 

hit upon a novel idea. They stole away about 60 

camels from the Maharaja’s caravan and hid 

those in the ravines. The matter was promptly 

reported to the Government and pat came the 

command in reply that those two villages were to 

be decimated by cannon fire. And all the cannons 

arrived and were even poised to hit and destroy 

the villages. However, earnest mediatory efforts 

were made and the stubborn villagers were at last 

persuaded to return those camels and the officials 

in command were also persuaded to see that it 

would not be appropriate for the State to destroy 

the abodes of such brave and reckless fighters as 

those in these two villages and finally they agreed 

to take away the cannon and leave. And the 

villages were saved. 

These villagers do not harass the other people 

in their own state now but conduct occasional 

raids on the neighbouring British Indian 

territories and create a lot of commotion. They 

raid the houses of the rich there and retreat to the 

ravines in the dark of the night. Once they are 

safely hidden in the ravines neither the police nor 

even the army can do anything worthwhile in 

tracing or attacking them. 

These two villagers are on the bank of the 

River Chambal, at about a distance of 15 miles 

from the British Indian territories. It is in one of 

these villages that my paternal grandfather Sri 

Narayanlalji was born in a famous clan. 

However, due to domestic quarrels, and 

especially the intolerable bad treatment meted out 

to him by his sister-in-law, that gentleman was 

constrained to leave his place of birth and wander 

here and there for a number of years. Finally he 

25 


26 Autobiography of Martyr Ramprasad Bismil (2015) 1 LAW 

reached Shahjahanpur with his wife and two sons. 

And my father Sri Muralidhar was the elder of 

these two sons. At that time he was just eight 

years old and the younger son i.e. my paternal 

uncle, Sri Kalyanmal, was just 6 years old. And 

that region was then affected by a terrific famine. 

Bad Days: 

After several attempts here and there, finally 

Sri Narayanalal ji had got a job in an Attar 

[Scents] seller’s shop at Rs 3/- per month. But in 

the days of that famine how could one manage a 

family of four with a mere Rs. 3/- p.m.? Grandma 

[Dadiji] made much effort to bring up the 

children with even himself going with halfhunger 

but even so the family could not be 

managed. They tried to bide time by eating 

millets, kukni, saama, sorghum, etc. but even so 

maintenance was not possible; then she would 

take equal quantities of a cheapest variety of 

bathua (pot-herb), chana (gram or chickpeas) or 

any other vegetables and of the cheapest variety 

of grain available in the market and mix those, 

add some salt and eat the mixure herself but make 

gram-dal or maize cakes (rotis) for the children 

and grandpa was also pulling on with a similar 

food. On half-filled stomach the day time could with 

difficulty be spent but it was so hard to suppress the fire 

in the stomach and get any sleep in the night times. If 

the situation was so intolerable as regards food to eat 

itself what could be said of the clothes to wear and rent 

to pay for residence? Grandpa [and grandma too] was 

desiring that it would be better to do labor 

[domestic chores] even if it were to be in some 

high families, but who in high families could rely so 

suddenly on a stranger from outside the place, whose 

language even does not match with the language of the 

place? Nobody would offer labour of griding grain [into 

flour] even; as they were apprehensive that the grinding 

person, in those terrible famine times, out of acute 

hunger, might gulp the flour even. 

After a lot of trials, at last when two households 

agreed to employ her [grandma] for grinding the 

grain, again the question arose as to what to tell to 

the old laborers doing that job? However, amidst all 

such obstacles, finally the job of grinding the grain 

to the extent of 5-7 seers a day was found but the 

wages for grinding 5 seers [panseri] was but one paisa in 

those days! With great difficulty, with a half-filled 

stomach that too once in a day only, if grinding was 

done for about 3-4 hours at a stretch she could earn 

one or one and a half paise; and then she had to 

come back home and prepare food for the children. 

For about three years such a terribly hard situation 

continued. Our grandfather used to express many 

times his intention to go back to the native place 

[Tomargarh] but grandma used to always rebuff 

saying it is better to give up one’s life even than to 

again kneel before and place the head on the feet of 

the same person due to whose misdeeds they lost all 

their house and properties, were compelled to leave 

the native place and had to and suffer these difficult 

days and also she used to instil hope that all days 

would not be dry [or ‘rainy’] like this even. Our 

grandma had undergone all sorts of troubles and 

sufferings but had never agreed to go, and did never 

return, to the native place [Tomargarh]. 

In 4-5 years some gentlemen became well 

acquainted and realized that the woman [our 

grandma] was of a good family but fell into 

misery because of ill times; then several [high 

family] women began to trust her and the famine 

was also over by that time. As a result, 

occasionally any gentleman would give some 

gifts and yet other would feed her Brahmin’s 

meals. And time began to pass in that way. 

Further, several gentlemen, who had ample 

wealth and means but no children, used to tempt 

our grandpa/grandma with many incentives 

asking him/her to give away one of the sons to 

them and in return they would pay as much 

money as demanded. However, our grandma was 

an ideal mother and she used to never fall into such 

temptations and used to somehow manage the family 

and bring up her children. 

Through exertion of hard labor and by hard 

earned wages, as also by rendering Brahmin 

professional services, some money could be 

saved and collected. On the advice of some 

gentlemen arrangement was also made to educate 

my father in a school. Our grandpa also exerted 

his efforts and as a result his wages got increased 

and he began to earn 7 rupees per month. 

Thereafter he even left his job and started a 

money-changing shop in which he used to supply 


(2015) 1 LAW Autobiography of Martyr Ramprasad Bismil 27 

coins in change – paisas, two-anna and four-anna 

coins, etc. at a commission and now daily 5-7 

annas profit was accruing. The bad days were 

now receding due to the enterprise and efforts put 

up by the family. However, the entire credit in 

this respect should go to our grandma only. The 

daring and courage with which she encountered 

the bad days and conducted the family affairs 

could really be attributed to the aid of some 

divine force only. Otherwise how could a 

completely uneducated [illiterate] rural woman 

derive the ability to go and live in an utterly 

strange place and, doing hard labor for wages, 

feed herself and her children and also get her 

children educated, that too coming from living in 

such prior life conditions when she had not even 

set her foot outside her house and was coming 

from such a country (region) where each and 

every Hindu tradition and custom was followed 

in toto and the residents of which region would 

not care a fig about their lives if it be for the 

protection of their traditions and customs. 

And could a Brahmin, or Khatriya or Vaisya 

daughter-in-law [or housewife] dare to go out and 

from one house to the other without covering one 

and a half alm’s length of loose-end of her sari 

[goonghat] over her head? The same rule that they 

should not walk on the roads without covering their 

heads by loose-ends of saris [goonghat] applied to the 

women of Sudra community too. The dress of Sudra 

caste women [housewives] is itself of a somewhat 

distinguishing type so that even by seeing them 

from a distance it could be recognized that they 

are some low caste women. These customs are so 

rigidly prevalent that they have taken the form of 

atrocities. Once a housewife belonging to the 

untouchable tanner community (Chamaar), who 

was married into a family in British India, had, 

per their caste custom, gone to the bungalow of 

the Zamindar (landlord) to touch his feet. The 

entire dress she wore was that normally worn by 

chamaars (tanners) but she was also wearing 

jingles on her legs [bichua ro noopur] and the 

eyes of that zamindar happened to catch the sight 

of these jingles. He enquired and got it confirmed 

that she was a chamaar (tanner community) 

housewife. He was wearing boots and in wrath he 

trampled on her feet with those boots with such a 

force that her foot-fingers got badly cut. He was 

angrily questioning ‘if the chamaar (SC: tanner 

community) daughters-in-law (housewives) begin to wear 

jingles then what should the higher caste women wear?’ 

These people are totally illiterate, uncultured, 

stubborn stupids but also overfilled with caste prides 

and prejudices. If even a very poor and uneducated 

Brahmin or Kshatriya person, of whatever age 

group he may be, happens to pass through a 

Sudra community cluster, then any Sudra 

community person on that way, however old or 

however rich he may be, has to get up and pay 

obeisance either touching the feet of, or through 

formal salutation to, that Brahmin or Kshatriya 

person. If by default this is not done, then that 

Brahmin or Kshatriya person can then and there 

strike the [disrespecting] Sudra person with their 

chappals [shoes] and then, all will condemn that 

it is the fault of the Sudra person only. Also if the 

allegations of prostitution or adultery are made against 

any virgin girl or housewife, then even without an 

inquiry she will be killed and her body thrown into the 

current of River Chambal. Likewise if any widow is 

accused of prostitution or in any other way becoming 

degenerate, then even if she be pregnant at the time, she 

will be hacked to death and thrown into the river 

Chambal and all that done secretively with no 

knowledge to a third person. However [despite all 

this] people there generally keep good-practices 

too. They look upon the daughters-in-law and 

daughters of all [others] like their own daughtersin-law 

or daughters. And they would not hesitate a 

bit to lay down their lives for the protection of the 

chastity and character of all the women. So now, the 

grit and determination shown by our grandma, married 

into such a sort of country, and despite observing all the 

vile customs prevalent, is quite commendable and 

unique. 

By God’s grace the bad days passed away. Our 

father derived some education and our grandpa had 

purchased a house too. To our family, which was 

shuttling from this house to that, at last a peaceful 

stationary abode became available. At this juncture the 

idea to perform the marriage of our father arose and 

in that course our grandma went to her maternal 

place [maaika] taking our grandpa and father with 

27 


28 Autobiography of Martyr Ramprasad Bismil (2015) 1 LAW 

her. And she performed the marriage of our father there 

itself. After staying there for 3-4 months, all of them 

came back [to Shahjahanpur], bringing the newly 

wed bride along with them, after making her [i.e. 

our mother] bid farewell to all her relatives there. 

Household life: 

After marriage my father got employed in the 

Municipality at a salary of Rs. 15/- per month. He 

did not receive any high education. My father did 

not like this job [in the municipality]. So, after one 

or two years he left the muicipal employment and 

tried to start an independent business and began to 

sell government stamps in the court premises. A 

major part of his life was spent in this business of 

selling government stamps. After becoming an 

ordinary household person, by the income from this 

business only, he got educated his children, brought 

up and managed his family and in course began to 

be counted among the respected persons in his 

locality. He used to engage in money exchange too. 

He got made three bullock carts, which he was 

renting out. My father possessed a handsome, strong and 

well-built physique; a lover of physical culture, he used to 

regularly participate in wrestling bouts. 

A son was born in my father’s family but he 

soon died in childhood. One year after this first 

son’s demise, this writer [Sri Ramprasad] was born on 

the 11 th day of Jyeshta Sukla paksh in the year 1954 

vikram [about 11 June 1897 A.D.]. And our grandpa 

[and grandma] had with several efforts, like making 

salutations to gods-goddesses, searching for, getting 

and tying up many talismen, amulets, etc., tried to 

protect this endangered physique [of myself]. The 

children’s disease syaat (यात) had entered our 

house at that time [it seems]. Consequently, within a 

month or two of my birth, my physical condition 

also began to deteriorate just as it did in the case of 

the expired first son [my elder brother] before me. 

Somebody advised that a white rabbit be brought and 

made to roam on my body for a while and thereafter left on 

the ground, and that if I had contracted that disease, the 

rabbit was sure to fall down and die, and so whether I got 

that disease or not could be proved with certainty. And 

elders say that it also happened exactly like that. They did 

get hold of a white rabbit and made it walk on my 

body for a while and then left it on the ground, and 

it is said that the rabbit then convulsed with fits, ran 

in circles and then dropped dead. On pondering 

about these stories now, I think that in a way this 

was quite possible [i.e. not just incredible] too, since 

medicines are of three kinds: 1. divine (daivik); 2. human 

(manushik); and 3. vampirish (paisachik). In the vampirish 

medicines, the blood and flesh of several kinds of animals 

and birds are made use of and such use is documented 

in the books on [traditional or ayurvedic] medicine. 

I may mention here about one very interesting and 

surprising experiment in such vampirish medicines. If 

any child is afflicted with rickets [jabhokha or sukhe ka rog] 

and then if a bat be caught, cut [sliced] and brought before 

that child, then even if that child be only one or two 

months old, he will catch that bat and begin to suck its 

blood and that disease will vanish fast. This is a very 

useful medicine, which was apprised to me by a 

great man [Mahatma]. 

[However, Bismil recovered from that affliction 

and grew up fairly well.] And when I became seven 

(7) years old my father himself taguht me the 

Hindi alphabets and then sent me to a maktab 1 of 

a Moulvi Saheb to learn Urdu. I also very well 

remember that my father used to go to 

gymnasium [akhaaDaa] for wrestling bouts and 

used to fling down to ground fighters of even 

stronger physique – even those who were one and 

a half times or so heavier than him [through his 

wrestling expertise]. However, after some time, my 

father fell in love [friendship] with one Bengali 

gentleman [Sri Chatterjee], who was running an 

English medicines’ shop. Mr Chatterjee was a 

very heavy drinker and addict. He used to drink a 

half chatak charas 2 in one gulp; and in his company 

my father also started drinking charas due to which his 

strong physique totally deteriorated. In ten years his 

entire body dried up and became virtually 

skeleton-like. This Mr Chatterjee was an alcoholic 

too and due to that heavy drinking, his heart/liver 

got enlarged and finally he succumbed to that 

affliction. Due to my persistent persuasion, my 

father finally gave up drinking charas but that was to 

happen much later. 

* * * (to be continued) 

1 A small school; “a special school providing education in 

theology, religious history, etc, primarily to prepare 

students for the priesthood, ministry, or rabbinate.” 

2 An intoxicating drug prepared from the flowers of hemp – 

[ganja plant]. 1 Chatak = 1/16 th seer = about 2 ounces. 


28

CHARLIE HEBDO: THINKING NEW, RETHINIKING THE OLD 

France: After the attacks on Charlie Hebdo and 

the Hyper Cacher Jewish supermarket: thinking 

through the new and rethinking the old 

We should start with a worrying observation. 

Heads of state understood the importance of the 

events of January. Representatives of ‘democracies’ 

and dictatorships alike, they came to Paris and 

locked arms together to show solidarity “at the 

highest levels”. A spectacular gesture if ever there 

was one! 

On the other hand, a significant segment of the 

radical Left thought it was just business as usual. To be 

sure, some organizations published declarations 

of solidarity (and deserve genuine thanks for this) as 

well as articles grappling with the significance of 

the events. But many others felt it was enough to 

score debating points, correct as they may have 

been (against cross-party national unity, for 

example); or had as their first concern the need to 

distance themselves from the victims (declaring “Je ne 

suis pas Charlie” [“I am not Charlie”] in flagrant 

disregard for the message intended by those 

saying “Je suis Charlie” [“I am Charlie”]); or, far 

worse, felt the urgent task was to assassinate morally 

those who had just been assassinated physically. 

Soon after the events, I co-wrote an article 

with François Sabado in which we specifically 

sought to understand what was so unique about the 

event and its implications in relation to our tasks. 1 No 

doubt, much more needs to be said on that score, 

but I’d like the text that follows (and which deals 

in large measure with the state of radical-Left opinion) 

to be read in conjunction with the previous one to 

avoid pointless repetition. 

The unique character of the event 

I’ll be referring in particular to an interview 

with Gilbert Achcar, with which I agree on many 

♣ Courtesy: Rousette Pierre, www.europe-solidaire.org/; dt. 

11-02-2015; edited excerpts; emphases in bold ours - IMS. 

1 François Sabado & Pierre Rousset, ESSF (article 34151), 

“France: Charlie Hebdo – And now what? The events, 

their impact and the issues at play.”: http://www.europesolidaire.org/spip.php?article34151 

- Rousset Pierre ♣ 

points of analysis, but which also contains a 

number of surprising blind spots. The first of 

these has to do with the unique character of the 

event. Gilbert seeks to trivialize the whole affair. 

“The reaction [to the attacks] has been what 

anybody would expect. […] These were quite 

similar reactions from appalled and frightened 

societies [the USA after 911 and France now] – and, 

of course, the crimes were appalling indeed. In 

both cases, the ruling class took advantage of the 

shock […] There is nothing much original about 

all this. Instead, what is rather original is the way 

the discussion evolved later on.” 2 

Gilbert is quite right to point out [elsewhere in 

the same interview] that it is extremely exaggerated to 

place the Charlie Hebdo attack and the September 2001 

destruction of the World Trade Center Twin Towers on 

the same footing. And yet millions of people 

spontaneously took to the streets following the French 

events, unlike what happened following previous 

no less atrocious attacks, such as the murder of 

children in front of a Jewish school in Toulouse. 

So, as far as the “national context” is concerned, the 

reaction to the January crimes is certainly not trivial 

and merits specific attention. Of course, there is 

something unpredictable and elusive about such a 

unique event. How to know which straw will break the 

camel’s back? Let me nonetheless suggest a 

handful of hypothetical answers. One feature of 

the attack was that it appeared to have been carried 

out by a trained military commando, and not by a “lone 

wolf” – evoking a planned action, organized by 

one or more movements (an impression 

subsequently borne out). Then there was the nature 

of the gory “message”: a warning to the press (which 

journalists clearly felt and understood). Then, with 

the attack on the Hyper Cacher Jewish grocery 

store, the perception (also borne out subsequently) 

2 Gilbert Achcar, ESSF (article 34254), “Paris attacks on 

Charlie Hebdo and a kosher supermarket: What caused 

the killings?”: http://www.europe-solidaire.org/spip.php? 

article34254; All quotations from Gilbert Achcar are 

taken from this interview. 

29 


30 Charlie Hebdo : Thinking New, Rethinking the Old (Rousset Pierre) (2015) 1 LAW 

that there were multiple targets. And the backdrop of 

all this: the crisis in Iraq and Syria, the growth of 

the Islamic State (even if the attack against Charlie 

Hebdo was ordered by Al-Qaida in Yemen). A general 

feeling that we have entered a new and more dangerous 

phase. On this point, at least, the comparison with 

911 is probably valid, but only if we factor in 

what has happened over the past decade and half 

(in particular the hope and despair of the uprisings in 

the Arab world). 

We have to take this context fully into 

account. It makes the second unique feature of the 

January events all the more remarkable, as 

François Sabado and I said in the opening of our 

co-authored piece. The mass demonstrations in 

France expressed open-ended solidarity, massive 

opposition to racism and to equating terrorism with 

Islam. In the current context, is this a trivial 

matter? I don’t think so. Quite significantly, in a 

survey carried out 10 days after the massacre, the 

Ipsos polling agency found there had been a big 

decrease in “tensions regarding Islam”: 

“We have to distinguish between levels and trends. 

With respect to levels, there are still 47 percent of 

people in France who, when considering the way 

the Muslim religion is practised in France, believe 

that ‘this religion is not compatible with the values 

of French society’ which is quite a high level. With 

respect to the trends, though, this level is 10 points 

lower – and not higher – than what we observed 

one year ago. This is where we can see that there 

has not been an increase in distrust.” 3 

Let’s just say that the January events have given 

rise to two contradictory trends within the 

population. On the one hand, a clear rise in the 

number of racist and Islamophobic acts, but from a 

minority segment of French society. On the other, a 

rise in fraternal feeling among the majority. 4 

3 ESSF (article 34237), “Charlie & Hyper Cacher – Après 

les attentats, « des clarifications qui ont fait baisser les 

tensions sur l’islam »’”: http://www.europe-solidaire. 

org/spip.php?article34237; Since it’s the same agency 

that has carried out a number of opinion surveys, it seems 

fair to conclude that the findings are indeed comparable. 

4 It’s also worth noting that another poll has revealed that 

opinions in France about Muslims are the most 

favourable among all the European countries looked at, 

with 72 percent of favourable opinions against 64 percent 

There is a third unique feature that should be 

highlighted: the solidarity expressed by a number of 

organizations representing immigrants to France (from 

North Africa in particular), and from organizations and 

individuals in a number of Arab and Middle Eastern 

countries, despite the vicious portrait that has been painted 

of Charlie Hebdo. In our earlier article, we spoke 

primarily of the feeling of alienation found among 

marginalized and precariously employed young 

people, because this is of paramount importance 

with respect to our responsibilities and tasks. I’d 

now like to focus on the solidarity that has been 

expressed. It is one feature of a contradictory state 

of affairs, but it is nonetheless revealing of what the 

main issues are for those who are in the clutches of 

fundamentalism or feel threatened by it. These same 

issues are also systematically obscured by those 

who seek to put Charlie Hebdo on trial – when it is 

not about taking “the French” more generally to 

task, a combat sport very much in vogue in the 

Anglo-American world. 

It is indeed a commonplace when governments 

take advantage of such events to enact a new 

series of freedom-destroying measures and dress 

up imperialism with talk of human rights. And it 

works, too, because security measures receive 

widespread support. On the other hand, the visit 

“en masse” and in the heat of the events by heads of 

state and their representatives is not a commonplace. 

This surprising development was a function of the 

international context and its novel character, and was 

definitely not prompted by a desire to defend civil 

liberties or give a leg up to François Hollande. 

And this is the fourth unique feature of the January 

events. It confirms our need for collective thinking 

about the evolution of the world situation and its 

implications. 5 

in Britain (ranked 2 nd ). See: http://artgoldhammer.blogspot. 

fr/2015/02/facts-about-muslim-population-in-europe. 

html; Of course, all these polls have to be examined more 

closely, but one explanation of the apparent differences 

that exist between polls might be related to the question 

that is asked. In one case, the question is about Islam (the 

religion), and in the other about Muslims (the people). 

5 ESSF section (1452), “ Le monde aujourd’hui”: http:// 

www.europe-solidaire.org/spip.php?rubrique1452 and 

The world today: http://www.europe-solidaire.org/spi... 


(2015) 1 LAW Charlie Hebdo : Thinking New, Rethinking the Old (Rousset Pierre) 31 

There is of course much in common between 

what happened in France and in other countries 

reeling from a devastating attack. So why is it 

important to underscore the unique character of 

what happened? To do justice to the event and 

grasp its complexity. This helps deal with new 

developments and avoid merely repeating what 

we have been saying for years. It enables us to 

more effectively tackle the question of our tasks 

by avoiding simplistic explanations and one-sizefits-all 

judgments. 

Religious fundamentalism here and there 

To a large extent, the Western radical Left is illequipped 

to fight against religious fundamentalism, for 

a number of reasons. 

For many years now, sections of the Western 

radical Left, and not minor ones, have cast the strong 

rise of fundamentalism in the Muslim world in a very 

positive light – as a (more or less distorted) 

expression of anti-imperialism, whereas they are 

actually (as in other religions) reactionary and counterrevolutionary 

currents. 

More broadly, a number of currents have 

adopted the detestable habit of only defending the 

victims of their “main enemy” (their government, 

their imperialism), without worrying about the 

victims of the “enemies of their enemies” – in 

this case, fundamentalist Islam. They do so in the 

name of exclusive “priorities” or, worse, on the 

basis that defending such victims amounts to an 

act of complicity with imperialism. We should 

note in passing that the same kind of reasoning 

can be applied to victims of a so-called “antiimperialist” 

dictatorship such as the Assad regime 

in Syria. 

What’s more, wrong conclusions have often 

been drawn on the basis of a correct observation: 

the condition of populations identified as Muslim 

is not the same “here at home” as it is in 

majority-Muslim countries. “Here at home” we of 

course have to fight racism, state Islamophobia, 

the racialization of social discrimination, and so 

forth. However, there is no impenetrable barrier 

between “over there” and “here at home”. Even as 

“minorities”, non-state actors are in a position to 

practise oppression against other minorities or within 

“their” own “community” – against women, for 

example. 

Finally, in a large majority of cases, the 

Western Left is not rooted within precarious 

layers of the population, even though many 

solidarity initiatives are organized (including in 

France, whatever some may say) in support of 

undocumented immigrants, the homeless, and so 

on. As Gilbert Achcar points out, this is a 

worrying state of affairs, without being specific to 

France. “What is usually called the ‘radical Left’ […] 

has a poor record on relating to people of immigrant 

origin. This is a major failure – though, of course, 

you can find similar situations in most imperialist 

countries.” This considerably limits our ability to 

act (or even to be well-informed), at a time when 

these same precarious layers are occupying an 

increasingly crucial place in a number of our 

countries. 

I don’t place an equal sign between “precarious 

layers” and people “of immigrant origin” (for how 

many generations is one “of” some “origin” or 

another?). Both categories are heterogeneous. But 

if we were better rooted in these social layers, the 

question of relations with the precarious segment 

of the immigrant and immigrant-offspring 

population would at least be partially settled. 

The role of political Islam in power (Egypt), 

and of “radical” Islamisms against popular 

revolutions in the Arab world, has largely 

clarified the debate about whether these politicalreligious 

currents are progressive or not. As to the 

impenetrable barrier between over there and here 

at home, it is actually rather porous after all. That 

was to be expected (and sometimes it was). The 

observation is unassailable: Salafism, Wahhabism 

and other fundamentalisms (including evangelical 

fundamentalism among Christians) now have roots 

in Europe. We shouldn’t take this question 

lightly. These movements are enemies of 

progressives, but also of “non-compliant” 

Muslims (that is to say, the large majority). They 

have to be fought with and for Muslims, as part 

of our project of a society based on solidarity. We 

have to fight on many fronts at the same time: against 




anti-egalitarian and discriminatory policies, 

against Islamophobia and racism, and against the 

far-Right and religious fundamentalisms that, in 

France, have become or are once again dangerous 

political forces (including in their Christian 

variants). 

We’re not prepared for this complex fight. 

We’re aware of some of the causes, but only some 

of them. To move forward, we can’t be satisfied 

with truisms (however valid they continue to be). 

We have to closely examine things we’re not used 

to talking about, including things that are 

unexpected and surprising. Here are two examples. 

We never tire of repeating the fact that 

imperialist wars (such as the US-led invasion of 

Iraq in 2003) have created the fertile ground on 

which the Islamic State has prospered. Quite right, 

and we have to keep repeating this so that no one 

believes that imperialist war is the answer. But 

another cause are the policies pursued by ruling 

classes in the Muslim world. A recent issue of the 

NPA’s French-language weekly l’Anticapitaliste 

takes up this question, but only with great 

trepidation. 6 

After all, fundamentalist movements aren’t just 

reacting to the behaviour of imperialist powers. They 

have become players in their own right, with their 

own plans, their own histories and their own roots. It 

isn’t their barbaric acts that should prompt us to 

address the question of religious fascism. When 

Farooq Tariq, for example, characterizes some of 

these movements as representing a new form of 

religious fascism, he does so on the basis of an 

assessment of the way their social base has evolved in 

Pakistan. 7 Is such an assessment open to debate? 

Of course, but it should at least be taken 

6 ESSF (article 34242), “Du Moyen-Orient à l’Afrique: le 

djihadisme, enfant monstrueux des politiques 

impérialistes et libérales”: http://www.europe-solidaire. 

org/spip.php?article34242 

7 See in particular ESSF (article 33874), “Pakistan: “It was 

an attack on Muslim children by Muslim fanatics” – 

Religious fanatics groups or the fascists in the making”: 

http://www.europe-solidaire.org/spip.php?article33874 

and (article 34192), “After Peshawar (Pakistan) and Paris 

(France) attacks: Challenge and response”: http://www. 

europe-solidaire.org/spip.php?article34192. 

seriously, coming as it does from a country torn 

asunder by sectarian conflict. 

The backdrop for religious fundamentalisms is 

evolving rapidly and past analyses, however 

relevant they may be, have to be brought up to 

date. The Islamic State, for example, is a recent 

development and may itself be undergoing rapid 

change. To be sure, none of the affected countries 

resemble the Europe of the inter-war period. Still, 

these movements fulfill functions (against the 

Arab revolutions, for example) comparable to 

those of European fascisms (against the workers 

movement). Some of these movements, in 

Pakistan at any rate, have built a real mass base 

within extremely reactionary segments of the 

educated middle classes 8 , and also within 

“plebeian” layers through Koranic schools. 

Perhaps we should speak of fundamentalist 

political-religious movements of a fascist type. It’s not 

that I want to come up with a one-size-fits-all 

term, but I feel there is a need to update our 

analysis of fundamentalisms (in the plural). 

Which brings me to my second example. We 

(rightly) stress that it’s not religion that lies at the 

origin of the radicalization of young French 

nationals going to Syria, but social despair, the 

daily experience of discrimination, injustice, and 

the well-known double standard. Religion is only a 

“vector” and not a “factor”, to use Julien Salingue’s 

terminology. 9 But once the “vector” has led to sectarian 

involvement in a fundamentalist current, the latter 

becomes a “factor” driving forward a social vision 

(which includes power over women and the 

dehumanization of the “other”) and cloaking barbaric 

acts with religious justification, whatever the personal 

motivations may be. We have to hone in on socioeconomic 

questions to deal with root causes, but 

8 Among other things, the financial crises of 1997-1998 

severely affected middle classes in a number of countries, 

creating a wave of social panic which radicalized urban 

middle classes to the right, going as far as an explicit 

rejection of democracy and the right of the poor to vote 

(in Thailand, for example). 

9 See ESSF (article 34154), “Don’t let mob rule 

prevail”: http://www.europe-solidaire.org/spip.php? 

article34154. 


(2015) 1 LAW Charlie Hebdo : Thinking New, Rethinking the Old (Rousset Pierre) 33 

this settles neither the political question (new far- 

Right formations) nor the uses to which religion 

is put. 

And then there are facts that don’t fit in to our 

traditional analytical approach – and that too, 

whether or not one believes this approach is 

valid. For example, what to make of the 

significant numbers of converts to Islam one 

finds among the French nationals joining 

fundamentalist movements? Or the involvement 

of teenagers from stable families and 

backgrounds, including from quiet towns in the 

countryside? There are also highly-skilled young 

people who would have no difficulty finding 

employment and yet have chosen to contribute their 

know-how to the Islamic State (hackers, for example), 

not to mention those who are taken in by calls for 

humanitarian assistance in Syria. Indeed, how is 

it that the usual methods of sects and cults of all 

sorts – which cut off the targeted individual from 

their usual environment – work so effectively? 

I think we would do well to study these questions 

further to enrich and broaden our understanding. 

In France, the bulk of our writing is aimed at 

countering our leaders’ hypocritical claims and the 

lies of the dominant ideology. This is correct and 

necessary. The problem, though, is that with such 

an approach we risk repeating what we already 

knew and going no further. We have unambiguously 

condemned the murders, but often without drawing 

explicit conclusions in terms of tasks. 

And yet we have to create much stronger ties 

than before between solidarity with progressive 

currents facing fundamentalists (and dictatorial 

regimes) from Syria to Pakistan, on the one hand, 

and resistance in Europe to the powerful upsurge of 

these new far-Right political-religious forces. This 

is something we have to do in our program and in 

our methods, with Muslims and in their defense. 

Otherwise, we won’t be providing convincing 

alternatives to the security agenda and will be 

yielding this terrain to our adversaries, the state and 

the “Western” far-Right. 

Is Charlie Hebdo the problem? 

In some activist circles in France and, 

especially, in the international blogosphere 

(particularly in the English language), the “problem” 

appears to be none other than Charlie Hebdo 

itself. So much so that some even neglect to condemn 

the murderers, or support the victims in the way a 

noose supports a hanged man. I have learned to 

despise the phrase “of course, murder can never 

be justified,” invariably followed by a lethal 

“but…”. 

I’ve had a few e-mail exchanges with an 

Indian correspondent who, having tried to find 

what in recent issues of Charlie Hebdo had 

“provoked” the attack, was surprised not to find 

anything. There’s a reason for this: there was no 

controversy surrounding Charlie at the time of the 

attack. The magazine had fallen back into relative 

obscurity and was struggling to make ends meet. 

If Charlie Hebdo hadn’t existed, the January attacks 

would have taken place nonetheless, because they were a 

response to the role played by the French state in the 

Middle East and Africa. This is why France was chosen 

rather than Denmark, country of origin of the notorious 

Muhammad caricatures. 10 The political targets were 

the press, the police and Jews. There is no 

wanting for physical and symbolic targets. 

Demonized as it was, Charlie Hebdo was useful, 

but in no way indispensable. So it was in no way 

indispensable to in turn “judge” Charlie in order 

to analyze the nature and scope of the attacks, the 

nature of the organizations that ordered them and 

the ways in which the international context has 

changed. But just as much as there has been a 

profusion of writing about Charlie Hebdo, there 

has been a paucity of commentary on these 

questions. 

The organizations that ordered or inspired the 

January attacks spend a great deal of their time 

massacring Muslims. They manipulate religious 

10 Since these words were written, an attack has indeed 

taken place in Copenhagen following the pattern in 

Paris: against freedom of expression (cartoonists) and 

Jews, causing two deaths. According to available 

information, it was an “aftershock”, an unplanned 

“copycat” attack in response to the Paris events and not a 

complex and minutely prepared operation such as what 

we saw in the French case. The case of Denmark is no 

less important, though, for understanding what is going 

on in European societies. 

33 



feelings as others manipulate national feelings 

and feelings of identity more broadly. We’re not 

talking about a bar room brawl between one of 

Charlie’s illustrators and a French youth of Arab 

background hurt by his drawings! We’re talking 

about politically rational acts given the goals 

pursued by al-Qaeda in Yemen and the Islamic 

State (as for the rationality of the individual 

perpetrators of the attacks, I prefer to take a more 

prudent approach than Julien Salingue has). But the 

political rationality has not caught the attention of 

many commentators let alone prompted them to 

investigate the matter further. 

“Suis-je Charlie?” (“Am I Charlie?”) has 

become the top question agitating the 

blogosphere. And the question can indeed be the 

starting point for an interesting series of 

reflections – but only based on an understanding 

that the question can feed a dangerous 

misunderstanding when counter-posed to the 

statement “Je suis Charlie”; if it leads to stating 

“Je ne suis pas Charlie” (“I am not Charlie”), or 

something along those lines. 

“Je suis Charlie” never meant identifying with the 

real or supposed editorial line of Charlie Hebdo, but 

was simply a statement of human solidarity with the 

victims. A straightforward form of solidarity, with no 

“ifs, ands or buts”, as is called for in such 

circumstances – and not a political statement. 

Counterposing “Je ne suis pas Charlie” to “Je 

suis Charlie” means beginning to measure out one’s 

level of solidarity according to one’s level of 

political agreement. I know that this isn’t the 

intention of some who have used this fashionable 

tagline. However, among many others, a desire to 

minimize solidarity with the victims, to undermine 

their standing, or even to put them on trial, has been 

plain to see. And this is a very serious matter. 

There are certainly many legitimate debates to 

be had about creative freedom, press freedom, 

freedom of expression and the responsibility of 

creators, journalists and the man and woman on the 

street. The reasons why French youth of Arab 

background refuse to identify with Charlie Hebdo 

are clear and legitimate. But here we’re talking 

about Left political organizations and individuals who, in 

the aftermath of the attacks, determined that it was more 

urgent to proclaim “Je ne suis pas Charlie” – or even to 

counter-pose the statement “Nous sommes tous des 

musulmans” (“We are all Muslims”) to “Je suis Charlie”. 11 

We are to understand, then, that the real victims 

weren’t the ones felled by the assassins’ bullets, but 

rather those who had supposedly been the object of 

the murder victims’ derision, because Charlie 

Hebdo was an “ideological representation” of 

oppression. Richard Fidler (who, it goes without 

saying, condemns the act of murder) issues the 

following extraordinary warning: “Above all, we 

must not allow ourselves to make the same mistake 

made by the Charlie Hebdo assassins — identifying 

the source of their oppression with its ideological 

representation, not its material, class basis.” 

Themselves oppressors of Muslims, the assassins didn’t 

make any mistakes as far as selecting targets goes. Their 

targets were perfectly in keeping with the goals of 

fundamentalist movements. 

The British SWP pushed things particularly far 

in this area. The Central Committee statement 

released following the Charlie Hebdo massacre is 

written from start to finish in such a way as to 

minimize the responsibility of the assassins, even 

if the attack is described as “wrong and 

completely unacceptable” and the killings as 

“horrific”. Alongside imperialism, Charlie Hebdo 

comes off as a major guilty party due to its 

“provocative and racist attacks on Islam,” adding 

for good measure that while “that does not justify 

the killings, but it is essential background.” The 

only task of the hour is therefore to “unite against 

racism and Islamophobia”. 12 It’s easy to 

understand why the SWP would react in this way, 

given that it has to erase its tracks and blind 

readers to its own responsibilities. It was one of the 

main organizations of the radical Left to describe the 

rise of Islamic fundamentalism as the expression of a 

new anti-imperialism. And when women in Britain 

itself called on progressive forces to support them 

against the fundamentalist threat, the SWP made 

it nearly impossible for them to get a hearing on 

the Left. 

11 Richard Fidler: http://lifeonleft.blogspot.ca/2015/... 

12 http://socialistworker.co.uk/art/39... 



Is Charlie Hebdo racist? 

Charlie Hebdo is a magazine, not an 

organization. It is put out by a number of 

journalists with a fairly wide range of opinions. 

Parts of its history have been turbulent and 

questionable, such as the chapter that followed 

the 911 attacks and under the editorship of 

Philippe Val. I have to confess that I have never 

been a reader of Charlie Hebdo or the Canard 

enchaîné, although I very much liked the work of 

the murder victims – especially of Cabu, 

Wolinsky, Charb and Tignous. Their drawings 

regularly appeared in Left-activist publications, such as 

Rouge, my own organization’s newspaper for many 

years. Others have written about the history of 

Charlie Hebdo and its illustrators better than 

I could. 13 

Was Charlie Hebdo the ideal victim? Perhaps 

not, but why should it be? The accusations levied 

against Charlie’s murder cartoonists often sound like 

the charges directed at a woman who has been raped. 

Wasn’t she dressed very scantily? Wasn’t her behaviour 

provocative? Doesn’t she have a wayward past? First 

comes suspicion then comes the indictment: Charlie 

Hebdo was racist. In much of the English-language 

blogosphere, the verdict has been promptly 

delivered, an open-and-shut case, repeated roundthe-clock, 

indisputable. 

Trial by falsification is a simple affair. You 

merely have to select those drawings that might 

seem racist while ignoring the much larger 

number that are explicitly anti-racist. 14 [14] You 

13 On ESSF, see Ariane Chemin et Marion Van Renterghem 

(article 34022), “ « Charlie », de menaces en fatwas – 

Regard sur une histoire”: http://www.europesolidaire.org/spip.php?article34022; 

or Philippe Corcuff 

(article 34027), “Charlie Hebdo – Mon ami Charb: les 

salauds, les cons, l’émotion ordinaire et la tendresse”: 

http://www.europe-solidaire.org/spip.php?article34027. 

14 Two sociologists have looked at 523 cover pages of the 

magazine from January 2005 to January 2015. The main 

target is the Right. Religion is addressed in only seven percent of 

cover pages. Of these, more than half are mainly about 

Catholicism and fewer than 20 percent Islam (for a total of 1.3 

percent of cover pages in the last ten years). So religion 

was a minor topic, with Catholicism getting the lion’s 

share of attention. See ESSF (article 4419), Une guerre 

describe any cartoon of Muhammad as 

Islamophobic, even when the point is to 

distinguish between Islam and fundamentalists – 

such as Cabu’s famous cover illustration 

presenting the Prophet with his head in his hands 

bemoaning that “it’s tough to be loved by fools”. 

Incidentally, many English-language commentators 

display characteristic cultural imperialism when they 

refuse to take into account French traditions of satirical 

cartooning and anticlericalism (or do so only to 

criticize these traditions). 

In any case, many don’t seek to understand 

complexity but rather to give a dog a bad name and 

shoot it. It’s absolutely frightening to see this 

approach at work and to see where it can lead. 

After all, as Gilbert Achcar says, “Some of the 

people involved in Charlie Hebdo were very much on 

the left.” 

Stéphane Charbonnier, known as Charb, the editor 

of the magazine, who was the principal target of the 

assassins, was, by any standard, someone on the left. 

He had close ties with the Communist Party and the 

general milieu of the Left. His funerals were held to the 

tune of ‘The Internationale’ 15 and his eulogy by Luz, 

a surviving member of the Charlie Hebdo 

editorial staff, included a bitter criticism of the 

French right and far right, and of the Pope as well 

as of Benjamin Netanyahu. In this respect, the 

comparison that some have made of Charlie 

Hebdo to a Nazi publication publishing anti- 

Semitic cartoons in Nazi Germany is completely 

absurd. Charlie Hebdo is definitely not a far-right 

publication – and present-day France definitely 

not a Nazi-like state.” 

dans tous ses états: http://www.europe-solidaire.org/ 

spip.php?article34419; Other sociologists have taken a 

different approach and come up with different numbers. 

But they all acknowledge that the lack of serious studies 

“leaves the door open to simplistic interpretations and 

solutions”. Unfortunately, snap judgments about Charlie Hebdo 

are all over the place, leading in particular to one-sided 

condemnations from organizations and individuals who haven’t 

actually read the magazine, hadn’t heard of it, and are unaware of 

any serious review studies about it (with good reason, since 

none exist). 

15 The Italian partisan song “Bella Ciao” was sung at 

Tignous’s funeral. 

35 



Or as Michaël Löwy wrote the day after the 

massacre: “Infamy. That is the only word that can 

sum up how we feel about the murder of our 

friends at Charlie Hebdo. A crime made even more 

hateful because these artist comrades were people on 

the left, anti-racists, anti-fascists, anti-colonialists, 

sympathizers with communism and anarchism. 16 Just 

recently they contributed to a volume published 

in honour of the memory of a group of Algerians 

murdered by the French police in Paris on 

17 October 1961. Their only weapons were the pen, 

humour, irreverence, and insolence – including against 

religion, in keeping with the age-old anti-clerical 

tradition of the French Left. On the cover of the last 

issue of the magazine before they were killed was 

a cartoon against the Islamophobic French 

novelist Michel Houellebecq, and inside was a 

page of cartoons against religion…the Catholic 

religion. Let’s remember that Charb, the editor-inchief, 

was a cartoonist with revolutionary sympathies. 

He drew the illustrations for French revolutionary 

socialist Daniel Bensaïd’s book Marx: mode d’emploi 

[Marx: A User’s Manual]. Charb was also in 

attendance at the evening tribute event that was 

held for Bensaïd following his death, and drew a 

number of wry and affectionate caricatures that 

were projected onto the screen all through the 

evening.” 17 

Some commentators even picked apart the issue 

put together by surviving contributors ten days after 

the massacre. Now I find this rather distasteful 

keeping in mind the psychological state the team 

must have been in while they worked. But read 

what Luz had to say 18 about the cover page he drew 

16 Some of them, such as Tignous, were also personally 

involved in solidarity work with the struggle of 

undocumented migrants. 

17 Michael Löwy, ESSF (article 34246), “Infamy – ‘That is 

the only word that can sum up how we feel about the the 

murder of our buddies at Charlie Hebdo’.”: http://www. 


18 Luz is still alive because he arrived late for the editorial 

meeting. He saw the assassins run out and found his 

friends dead or dying. “We needed belts to stop the 

bleeding. I realized that I didn’t have one. So now I wear 

a belt.” See ESSF (article 34230), “« La majorité des 

musulmans s’en foutent de Charlie Hebdo »”: http:// 

www. europe-solidaire.org/spip.php?article34230. 

for the issue, depicting Muhammad holding a “Je 

suis Charlie” sign in his hands under the headline 

“All is forgiven” – a cover page that came into 

being with great difficulty. “[I thought about] the 

reason why part of the Charlie team was killed [the 

drawing of Muhammad on the cover of ‘Charia 

Hebdo’] and which also got our offices firebombed 

[in 2011]. I spoke to him. My poor old friend, I 

drew you back in 2011 and that caused us a lot of 

bother. In a way, it was almost like we were 

forgiving one another. As the illustrator, I was 

saying ‘I’m really sorry about dragging you into 

this,’ while he, as a character, who was forgiving 

me, was saying ‘It’s no big deal, you’re alive, so 

you can keep drawing me.’” Is this what an 

Islamophobic racist would say? 

As the imam and rector of the Bordeaux mosque 

Tareq Oubrou has said, “A cartoon is a cartoon. We are in 

a free country and it’s thanks to this freedom that Muslims 

can express themselves and practise their religion. We 

shouldn’t saw off the branch we’re sitting on […] The 

aim of these cartoons is conciliation; they’re even 

an act of kindness. You have to see the cartoons as 

something external to the problem of depicting the 

Prophet per se.” 19 Is this what an Islamophobic 

racist would say? 

All these remarks were made in the aftermath of 

an appalling ordeal. And yet our falsifiers don’t care a 

jot about this. They carefully neglect to inform their 

audience about the victims’ activist commitments or about 

19 Tareq Oubrou , ESSF (article 34088), “En “une” de 

Charlie Hebdo – Tareq Oubrou: “L’intention de ces 

caricatures c’est l’apaisement”: http://www.europesolidaire.org/spip.php?article34088.] 

Riss has replaced 

Charb as Charlie Hebdo editor-in-chief. He was injured 

in the attack (a bullet in the shoulder). Interviewed while 

leaving hospital, he spoke about the massacre, the 

history of Charlie Hebdo (which “to our great surprise 

has been turned into a symbol of the fight for 

secularism”) and concluded by saying, “People will 

eventually understand that all Muslims are not destined 

to become terrorists. You can be Muslim in a 

democracy, there’s no problem with that. Only dishonest 

people equate Islam with terrorism. And we can see 

who’s behind this. Terrorists have nothing to do with the 

overwhelming majority of French nationals of Muslim 

faith.” [[Riss, ESSF (article 34140), Riss, directeur de la 

rédaction à Charlie Hebdo : « Tout le monde n’est pas 

obligé d’aimer “Charlie” »”: http://www.europesolidaire.org/spip.php?article34140. 



the survivors’ statements against equating Muslims with 

terrorists. These commentators also don’t have much 

to say about the Jewish victims of the attacks. 

Empathy and humanity aren’t their strong point. What 

kind of society would such people usher in? 

Three questions to conclude 

I’ve taken the time to defend the victims of the 

January 7 th attack because this is what those of us 

who knew them personally and used so many of 

their illustrations owe them in the face of such 

slanderous accusations. 20 Shortly after the 

massacre, Luz, one of the survivors, gave a doubtladen 

interview that I think should be read by 

anyone seeking to understand. 

“We have been forced to shoulder responsibility for 

symbolic connotations that don’t exist in Charlie’s 

cartoons. […] Since the publication of the 

Muhammad cartoons, the irresponsible nature of 

cartoons has gradually disappeared […] our 

cartoons are read literally. Since 2007, Charlie has 

been scrutinized under the microscope of 

responsibility. Every one of our cartoons is now 

liable to being read through the lens of geopolitical 

conflicts and internal French political squabbles. 

These problems are laid on our doorstep. But we’re 

simply a magazine that is bought, opened and 

closed. When people post our cartoons on the 

Internet, or when the media draw attention to some 

of our cartoons, that’s their fault. Not ours. […] 

Unlike Anglo-American illustrators or [Le Monde 

illustrator] Plantu, Charlie fights against 

symbolism. Doves of peace and other metaphors of 

a world at war aren’t our cup of tea. We work on 

points of detail […] and tie them into French 

humour. Sometimes cutesy, other times crass […] 

Charlie is the sum of a number of very different people 

[…].The nature of the cartoon changed depending 

on which cartoonist was working on it and their 

individual style, and on their political past in some 

cases, or artistic past in others. But this humility and 

diversity of expression no longer exist. Each cartoon is 

seen as having been drawn by all of us. [Becoming a 

unanimous symbol for national unity] helps 

Hollande rally the nation together. It helps [Front 

National leader] Marine Le Pen call for a 

reinstatement of the death penalty. Everyone can 

20 See also Camille Emmanuelle, ESSF (article 34221), 

“Charlie Hebdo : être aimé par des cons, c’est dur, être 

haï par des amis, c’est pire”: http://www.europesolidaire.org/spip.php?article34221. 

use this kind of broad symbolism in any way that 

catches their fancy. Even Poutine can agree with a 

dove of peace. But that’s precisely what set 

Charlie’s cartoons apart, since you couldn’t do 

whatever you fancied with them. When we surgically 

lampoon different sorts of obscurantism, when we hold 

political positions up to ridicule, we are not becoming a 

symbol. Charb, whom I consider to be the Jean- 

Marc Reiser of the late 20 th -early 21 st century, was a 

social commentator. He drew what was under the 

gloss, slightly ugly people with big noses. Right 

now we’re covered in a thick layer of gloss and I’m 

going to find that difficult.” 21 

Creative freedom, freedom of expression 

and responsibility 

“Complete freedom for art” is what we used to 

say. 22 It might be useful to revisit surrealism in light 

of current debates regarding the relationship 

between the creator (no pun intended) and 

responsibility. Luz places Charlie Hebdo in the 

tradition of the illustrator’s limited responsibility. 

Responsibility ends with the publication of the 

magazine and doesn’t take into account the possible 

uses that others will make of the cartoons for fear of 

stifling creation and getting mired in symbolism. 

Those more knowledgeable than I describe this is a 

matter of the ethics of conviction versus the ethics of 

responsibility. 23 

From an activist’s point of view (which is not the 

same as a creator’s), one cannot ignore the predictable 

consequences of one’s provocations. Attacking the 

goody-two-shoes of all religions is a very good thing 

indeed. Still, in France, can you take the same 

approach toward Muslim upholders of righteousness 

as you do toward their Catholic counterparts? I don’t 

think you can, because it means ignoring the 

relationship of oppression that changes the way 

writing or illustrations are read. To my knowledge, 

21 Luz, ESSF (article 34054), Luz, Charlie Hebdo 

survivor: “Luz, survivant de Charlie Hebdo: “On 

doit porter une responsabilité symbolique (alors 

que) Charlie se bat contre le symbolisme””: http:// 

www.europe-solidaire.org/spip.php?article34054. 

22 https://www.marxists.org/subject/art/lit_crit/works/rivera/ 

23 

manifesto.htm. 

See ESSF (article 34236), “Charlie Hebdo, liberté 

d’expression, démocratie, responsabilité”: http://www. 


37 



this is a question that Charlie Hebdo’s editorial team 

didn’t want to take into account and this explains (but 

only in part) the intensity of debates within the French 

Left about Charlie’s editorial line. Provocation becomes 

difficult when identity-based conflicts are on the rise. 

I nevertheless disagree with advocates of self-censorship. 

We must be blasphemous. Otherwise, we are in practice 

agreeing with the guardians of virtue who criminalize 

blasphemy. It shouldn’t be necessary to recall that the 

criminalization of blasphemy doesn’t seek to protect 

believers but rather to suppress opponents, like the 

crimes of lèse-majesté and desecrating national 

symbols (one of my first acts of protest was to refuse 

to rise for the French national anthem). 

Serious thinking about these questions is entirely 

legitimate. 24 I just doubt that its outcome can be a set 

of rules applicable everywhere and always. 

Secularism, republicanism and post-colonialism 

For Gilbert Achcar, the problem at hand stems in 

large measure from a tradition of “the Left’s arrogant 

secularism” that maybe fed by anticlericalism rooted 

in the long history of the French Left. For others, it’s 

about post-colonialism. Either way, there is 

supposedly a specifically “French problem”. A 

Filipino friend quite innocently asked me if the failure 

to organize immigrant workers in France was due to 

the fact that the country hadn’t come to terms with its 

colonial past – which implied that the failure was less 

obvious in other imperialist countries. 

I was struck by the friend’s question because we 

had just gone through the huge marches of January, 

which were remarkable in their rejection of xenophobia 

– whereas the US was nearly simultaneously rocked 

by the scandal of the raft of police murders of Blacks 

covered up by juries of peers. 

True, France’s colonial past has not been resolved, 

and especially not the Algerian War whose reputation 

the Right would like to rehabilitate. But the major 

powers of the 19 th and 20 th centuries were Anglo-American. 

Britain’s looting of the world produced massive famines. The 

US was built upon a genocide (of Native Americans) and in 

part also on the massive use of slaves. Where exactly in the 

imperialist world has this past been resolved? 

Yes, the organization of immigrant workers in 

France has largely been a failure, in part due to the 

24 On this point and the next one, see also Samy Johsua, ESSF 

(article 34179), “Après Charlie: des principes et des actes – 

liberté d’expression, laïcité, déségrégation”: http://www. 


position of the Communist Party (PCF) during the 

Algerian War. But where exactly has it been a real 

success? A number of struggles by immigrant workers 

have taken place in France in recent years, especially 

through the creation of committees of undocumented 

workers on the basis of national or regional origin. 

They have been supported by trade unions (including 

the CGT) and ordinary citizens. The government was 

hoping to trap undocumented workers by taking their 

children hostage as they made their way home from 

school. In response, a very active network of parents 

and teachers was established to protect the children 

and their families from the police and deportation. All 

this is nowhere near enough, of course, but where is 

the situation qualitatively so much more wonderful? 

My somewhat different starting point is the 

observation that integration policies have been a failure 

across the board. The far-Right is threateningly on the rise 

almost everywhere in Europe. This is the case even in 

countries which never (or barely) had colonies outside 

of Europe, so it’s clear that the post-colonial 

explanation doesn’t go very far. 25 The common 

explanatory thread running through all these countries 

is actually the universality of destructive neoliberal 

policies. In response, then, the arc of resistance has to 

be anchored in struggles around socio-economic 

questions. To be sure, in France we have specific 

problems stemming from a specific history. My 

generation didn’t learn how to deal with questions of 

“identity” or religion because they weren’t raised in 

such terms during our formative activist years. North 

African immigrants, for example, had a working-class 

consciousness. As Olivier Adam has humorously said, 

we lived in a “blessed era” and a “world without God”. 26 

Charlie Hebdo was also cast from this mould. Yes, we can 

learn from countries that have a different history. But 

the reverse is also true. Is it not a problem that so 

many European countries still have royal families and 

state Churches – not least for the non-Christians 

excluded from this highly “visible” history? Isn’t the 

relative radicalism of the separation between Church and 

25 On this topic see Samy Johsua, ESSF (article 34297), 

“Postcolonialisme – Lettre à un camarade : Une pensée 

simpliste n’aide pas dans une situation complexe”: 

http://www.europe-solidaire.org/spi... (article 34180), “Que 

faire ? Après Charlie, éléments de réflexion stratégique”: 

http://www.europe-solidaire.org/spip.php? article34180. 

26 ESSF (article 34241), “Quand Dieu n’existait pas – “Une 

époque bénie”’”: http://www.europe-solidaire.org/ 

spip.php? article34241. 



State found in France a useful cornerstone for building equal 

citizenship for all? 

Far more than an expression of support for crossparty 

national unity, the January marches were a show of 

republican unity – a specific, generous vision of the Republic 

and of shared citizenship. A vision, though, that is not 

recognized by those living on the margins, who know 

full well that equality is not the reality of the actually 

existing Republic. Indeed, the way the republic (and 

now also secularism) is conceived is a political 

battleground in France. “Secularism” (even 

“secularism à la française”) and “Republic” do not 

exist as monolithic entities. And this is why the 

banner of the “social Republic” is so important, as a 

way of refusing to yield to our adversaries a large 

swathe of popular history, which would ensure the 

victory of the Republic of the ruling classes. 

Solidarity and identity 

I’ve been really struck by the difficulty many 

organizations (and individuals) have had in standing back 

to assess the events of January. Many have analyzed 

the events solely through the prism of their particular 

areas of work – or of their own personal histories. I’m 

worried that this is merely a reflection of the level of 

fragmentation of activist thinking and action (and also, 

frankly speaking, of the individualism and narcissism 

inherent to the dominant ideology of neoliberalism). 

This fragmentation is deadly. The current ruling order is 

entirely lacking in legitimacy, whether democratic (fostering 

increasingly authoritarian regimes), socio-economic 

(destroying social rights) or historical. Its main strength lies 

in the division of the exploited and oppressed. It therefore 

seeks to destroy old forms of solidarity and prevent 

the formation of new ones. To this end, it uses every 

arrow in its quiver: young against old, men against 

women, stable jobs against precarious ones, nationals 

against immigrants, Chinese against Arabs, longestablished 

Arab immigrants against recent ones, one 

type of racism against another, to name a few. 

From this angle, the attack on the Hyper Cacher 

Jewish supermarket may have serious consequences, 

setting “community against community” – cloaked 

under, and exacerbated by, the domestic impact of the 

Israel-Palestine conflict. Similarly, the government has 

been exploiting the January events to push through its 

program of bringing the schools to heel and imposing an antidemocratic 

and socially conservative agenda against young 

people. The target right now are young people who, in 

the absence of classroom discussion, refused to 

observe the minute of silence in memory of the 

Charlie Hebdo victims – most of whom happened to 

be of Muslim background. But the broader target are 

the “dangerous” classes and age groups, leading to a 

three-fold discrimination on the basis of “race”, 

generation and socio-economic background. 

Unity of the exploited and oppressed will not be built by 

denying the important of specific discrimination faced by 

“visible minorities”, in a way that prevents them from 

effectively asserting their own rights. Nor will it be 

achieved by pursuing identity politics that prioritize 

difference over collective resistance. Without a common 

fight, the battle is lost before it has begun. Such a fight 

requires reciprocal recognition of shared rights, but 

also a common socio-economic underpinning. The 

choice is clear, well and truly strategic in nature – and 

has concrete implications. 

There are many types of racism at work in France, and 

not just one. The Roma are indisputably the most oppressed – 

scapegoats par excellence. Those identified as Arab and 

Muslim are the most broadly discriminated against and the 

target of the dominant narrative. Whatever their religion, 

Blacks remain Blacks, victims of a more prototypical 

form of racism. In the recent period, Jews have been the 

only ones to have been the victims of targeted assassinations 

(in Toulouse, Brussels and at the Hyper Cacher 

Jewish supermarket 27 ). Some forms of racism are forged by 

the state, while others aren’t – but all of them are poisonous, 

solidarity-destroying sources of division and dehumanization. 

And all of them must be fought in all-encompassing 

expressions of solidarity. So it would be better to avoid 

issuing anti-racist statements that fall short of this. 

There are multiple victims. Let’s defend all of them, 

within our means but with no pecking order, whosoever 

the oppressor may be. Should we defend Muslims 

with Muslims, shoulder-to-shoulder and without 

paternalism? Absolutely. That’s how we should 

defend the victims of Islamophobia – and also 

women “of Muslim background” who are victims 

of both ordinary and fundamentalist sexism. Can 

we all agree on this? We have a lot of work to do 

in order to bring ourselves up to date around a 

wide range of questions. But this work requires a 

guiding principle: the convergence of resistance, the 

building of solidarity, and the unity of the exploited and 

the oppressed. 

* * * * * 

27 

and now Copenhagen... * Translation from French: 

Nathan Rao. [* Five footnotes have been added to the 

French original version: 4, 10, 14, 23 and 28.] 

39 


40 They are one of us (l’Humanité editorial on 8 January 2015) (2015) 1 LAW 

THEY ARE ONE OF US 

[The editorial board of l’Humanité ♠ is deeply shocked by 

the odious attack that decimated Charlie Hebdo’s team in 

Paris yesterday {7 January 2015} morning. Most of the cartoons 

published by l’Humanité are by Charlie’s cartoonists. We 

followed the same path in work, and in friendship.] 

They are one of us. A long companionship has 

grown, over the years, between the teams of Charlie 

Hebdo and of l’Humanité. Its conductor was CHARB, 

communist, insolent, and a rigorous professional, who 

obtained from his crew of rebels the delivery, flawless 

and on time, of the cartoon that enlivens our daily’s last 

page. Jul, Luz, Babouze, and Charb himself never 

missed the weekly appointments, nor did Coco and 

Besse, who draw for l’Humanité Dimanche. On the eve 

of the Fête de l’Humanité, one year, Charlie’s editorial 

team took over the entire iconography of the next day’s 

issue, spreading over the pages an invigorating and 

harmless insolence, and their priceless creations that 

clarified, in a few strokes, the day’s events. 

Charb was even one day’s editor-in-chief for 

l’Humanité. He arrived, accompanied by the policemen 

who assured his security. The director of Charlie 

shouldered by two policemen! The paradox was merely 

apparent, since a relation of mutual trust had been 

established between the anti-conformist rebel and his 

two shadows. The three of them knew that they were 

targeted. Char had decided not to be guided by fear, not to 

engage in self-censorship, nor to be ruled by the the law of 

the most stupid and most brutal. Charb also provided 

discreet help to this daily paper, advising young 

correspondents who were making a start as cartoonists, 

for one entire Saturday at l’Humanité’s offices in Saint- 

Denis, and by putting pressure on radio and television 

channels, to which he was invited, to give l’Humanité, 

the newspaper founded by Jean Jaurès, its due place 

beside the other dailies cited — with varying degrees of 

success. It was he who recommended to us two young 

cartoonists, Coco and Besse, full of talent and inspiration 

— thus breaking with the idea that drawing cartoons is a 

man’s job. 

Over an extended period, the impertinence of Charlie 

was well attuned to the rebellious fiber of l’Humanité. 

We should also mention Siné and Tignous who 

enlivened l’Humanité Dimanche. To revive memories of 

the work we shared is also to unwind a reel of friendships that 

only death could, and did, terminate. 

♠ Daily newspaper, formerly [of] the French Communist 

Party (PCF). The paper is now independent, although it 

maintains close links to the PCF. Edited excerpts - IMS. 

l’Humanité could not have done without 

Wolinsky, Charb, and Tignous 

They were one of us, and we have raised our glasses 

together more than once. …...Georges Wolinsky for such 

a long time brightened the front page of l’Humanité! In 

two sketches and three words he would untangle a 

situation, reveal an hypocrisy, ridicule the powerful. In 

fabulous osmosis with the people, readers who cut out 

his cartoons in order to glue them on their handbills. 

l’Humanité could not have done without Wolinsky. 

The cartoonist had found there a new space of liberty, 

and perhaps of usefulness. But also friends, like René 

Andrieu, Roland Leroy, José Fort, who shared memories 

of joint travels, cultural passions, and the same appetites 

for life. … Georges …… evoked the possibility to make 

cartoons for l’Humanité from time to time: to reclaim a new 

space of liberty, as a gesture of friendship, not untinged with 

nostalgia. They were so much of us that the emotion that 

overcame the editorial team at the announcement of the 

slaughter was deeper than the shock upon a major and 

traumatic event. Each of us here felt it as a personal and 

intimate wound. For many of us, brotherhood is not 

merely rooted in ideas. 

This personal history, which I refuse to let slip into 

the past, was not without friction, digs, fits of anger. 

Newspaper cartooning is a demanding and effective 

mode of journalism, often more demanding than writing 

editorials or long analytic pieces. Consequently, this 

space of liberty is particularly menaced by tyrants and 

fanatics. At times the scratching of their claws irritated 

some readers: "... But laughter, even if it had a bitter 

taste, overcame good manners and reticence. The 

difficulties for the papers, those which Charlie encounter, 

as well as those facing l’Humanité, had brought the two 

teams closer together. My last exchange with Charb was 

last Monday. He had sent us seven drawings made 

during the holidays, for a special issue opposing the Loi 

Macron that will be published on 15 January, distributed 

with l’Humanité Dimanche. We hoped also that he 

would draw a cartoon for the cover. He didn’t have time. 

We will publish his preliminary sketches, in form of an 

homage. Charb never hid his political views and commitments, a 

scrupulous militant communist, and unbridled cartoonist, able… 

His newspaper had taken deep roots in the cultural 

soil of several entire generations, with a series of cult 

front page images – those … on the front pages of this 

newspaper & those we let slip by – by way of thumbing its 

nose at ambient drowsiness and in eternel contradiction with 

ready-made ideas. In this, they are one of us, but they are part of 

everybody in this country. [http://www.humaniteinenglish.com/ 

spip.php?article2618] 

* * * * * 


POLICING BELIEF: 

IMPACT OF BLASPHEMY LAWS ON HUMAN RIGHTS ♣ 

PAKISTAN: 

The drift away from pluralism in Pakistan has 

had severe consequences for minorities and 

religious freedom in general. It has created an 

atmosphere that encourages intolerance and 

violence, and the increased influence of religious 

extremists in the political system has 

compromised the ability of lower-level judges, 

police, and government officials to uphold 

pluralistic values. As one commentator pointed 

out, “It is…the responsibility of the elected 

politicians to provide the law and order without 

which no judiciary can work. Today, for instance, 

a judge in the districts dare not release the victims 

of blasphemy for fear of being harmed by violent 

mullahs.” 17 The influence of religious extremists 

has also prevented both elected and unelected 

governments from working to amend or repeal 

harmful laws in any substantive way. Former 

Prime Minister Benazir Bhutto and former 

military ruler Pervez Musharraf both expressed 

their commitment to amending the religious laws, 

but backtracked in the face of demonstrations by 

extremists and pressure from Muslim clerics. 18 

Under Musharraf, who ruled from 1999 to 2008, 

a new amendment required police to investigate 

blasphemy allegations before making an arrest, 

but this rule is rarely observed in practice. 

In February 2010, Minister of Minority Affairs 

Shahbaz Bhatti told the media that he expected a 

♣ Courtesy: https://freedomhouse.org/; suitably edited; 

Continued from the 28 February 2015 issue; emphases in 

bold ours - IMS. 

17 “State of the Judiciary,” Daily Times (Pakistan), July 7, 

2009, http://www.dailytimes.com.pk/default.asp?page= 

2009\07\07\story_7-7-2009_pg3_1. 

18 “Religious Intolerance in Pakistan,” Pakistan Newswires, 

December 11, 2002; “Pakistan’s Blasphemy Law U- 

Turn,” British Broadcasting Corporation (BBC), May 

17, 2000, http://news.bbc.co.uk/1/hi/world/south_asia/ 

751803.stm. 

change in the blasphemy laws by the end of the 

year. 19 The proposed amendments would require 

judges to investigate cases of blasphemy before 

they are registered, and would impose 

punishments equivalent to those faced by 

blasphemers for false accusations. 20 At the 

European Parliament in May 2010, Bhatti 

reiterated his confidence that the laws would be 

amended by the end of 2010, and stated that 

Pakistani authorities have “made a commitment 

to amend these laws.” 21 

At the same time, Pakistan’s government has 

consistently supported UN Human Rights 

Council resolutions on “defamation of religions,” 

which aim to protect religions as such from insult 

or offense. This effort has been condemned by 

human rights groups as a threat to freedom of 

expression and other fundamental rights. 22 Since 

Pakistan introduced the first resolution in 1999, it 

has actively advocated for the “defamation of 

religions” concept in other UN forums as well, 

including the Durban Review Conference; the Ad 

Hoc Committee on Complementary Standards; 

and the 2008 Office of the High Commissioner 

for Human Rights Conference on Articles 19 and 

20 of the International Covenant on Civil and 

Political Rights (ICCPR). 

Blasphemy Laws 

The blasphemy laws in Section XV of the PPC 

(Pakistan Penal Code) are quite expansive. In 

addition to prohibiting expression that is intended 

to wound “religious feelings,” and deliberate or 

malicious acts intended to “outrage religious 

19 “Pakistan Minister Sees Blasphemy Law Revision This 

Year,” Agence France-Presse, February 7, 2010. 

20 

“Pakistan: Pak Blasphemy Laws Used to Justify 

‘Murder’,” Rights Vision News, May 22, 2010. 

21 Ibid. 

22 Becket Fund for Religious Liberty, “Defamation of 

Religions,” Issues Brief (condensed version), June 2008, 

http://www.becketfund.org/files/87155.pdf. 

41 


42 Policing Belief: Impact of Blasphemy Laws on Human Rights (2015) 1 LAW 

feelings of any class by insulting its religion or 

religious beliefs,” the blasphemy laws 

specifically prohibit defiling the Quran and 

insulting the prophet Muhammad or any of his 

wives, family, or companions. The “misuse of 

epithets, descriptions, and titles, etc.” that are 

reserved for “holy personages or places” is also 

prohibited. These laws were added to the PPC 

between 1980 and 1986, with the most stringent 

amendment being adopted in 1986. Article 295(C) 

made it an offense punishable by life imprisonment or 

death to use any derogatory language about the prophet 

Muhammad. In 1991, the Federal Shari’a Court ruled 

that the punishment for this offense should be harsher, 

and Article 295(C) was amended to make the death 

penalty mandatory for individuals convicted of making 

derogatory remarks about the prophet. 23 

Incompatibility with International Law 

Pakistan’s blasphemy laws are incompatible 

with international human rights standards not only 

because they impose undue restrictions on freedom of 

expression, freedom of religion, and other human rights, 

but also because they are discriminatory in their effect. 

Moreover, they lack the necessary safeguards 

against abuse, providing no clear definition of 

what constitutes blasphemy, weak evidentiary 

standards for convictions in lower courts, and no 

mens rea (criminal intent) requirement. 24 This 

makes it possible for the laws to be exploited to 

persecute minorities or exact revenge in personal 

disputes. The blasphemy laws have also been 

invoked to instigate and justify sectarian or 

communal conflict, with allegations of blasphemy 

often serving as the trigger for mob violence that 

has in some cases been implicitly, if not 

explicitly, condoned by police and government 

officials. 

23 

Bureau of Democracy, Human Rights, and Labor, 

“Pakistan,” in 1994 Country Reports on Human Rights 

Practices (Washington, DC: U.S. Department of State, 

February 1995), available at http://dosfan.lib.uic.edu/ 

ERC/democracy/1994_hrp_report/94hrp_report_sasia/Pa 

kistan.html. 

24 U.S. Commission on International Religious Freedom 

(USCIRF), “Pakistan,” in 2009 Annual Report 

(Washington, DC: USCIRF, May 2009), http://www. 

uscirf.gov/images/AR2009/pakistan.pdf. 

Pakistan formally ratified the ICCPR in June 

2010, pledging its commitment to the treaty’s 

protections. Many of the rights violated by 

Pakistan’s blasphemy laws are also enshrined in the 

Universal Declaration of Human Rights, and are 

nominally protected by the Pakistani constitution 

and other domestic legislation. 

Lack of Clarity 

Despite their harsh penalties, the blasphemy 

laws provide no clear guidance on what constitutes 

a violation. This determination is left to police and 

judicial officials to make, often relying on their own 

personal beliefs and interpretations of Islam. As one 

commentator has argued, “interpreting what falls 

under Pakistan’s anti-blasphemy laws is essentially 

a theological question and, since there is no blackletter 

definition of the crime in the Quran or other 

authoritative Islamic sources, it is one that remains 

unsettled.” 25 The vagueness of the laws lend to their 

utility for settling personal vendettas and targeting 

religious minorities at will. 

In addition, Pakistan’s blasphemy laws fail to 

consistently distinguish between malicious, 

deliberate acts of blasphemy and unintended ones – 

a distinction normally provided for in criminal law. 

While Articles 295 and 295(A) specify the 

criminalization of “deliberate and malicious” acts, 

or acts intended “to insult the religion of any class,” 

the other articles in Section XV of the PPC do not 

include any such language. 

The effects of this shortcoming in the law are 

apparent in the case of Anwar Kenneth, a Pakistani 

Christian who was arrested and charged with 

blasphemy in 2001 for distributing a Christian 

pamphlet and declaring that Muhammad was a false 

prophet, one of the most serious forms of 

blasphemy in Pakistan. 26 Kenneth also claimed he 

25 Nina Shea, “Testimony of Nina Shea, Director of Hudson 

Institute’s Center for Religious Freedom, before the Tom 

Lantos Human Rights Commission of the Committee on 

Foreign Affairs of the US House of Representatives: 

Pakistan’s Anti-Blasphemy Laws,” Hudson Institute, 

October 8, 2009, http://www.hudson.org/files/documents/ 

SheaPakistan108.pdf. 

26 Asian Human Rights Commission, “Pakistan: Another 

Person Sentenced to Death under Blasphemy Law,” 

news release, August 1, 2002, http://www.ahrchk.net/ua/ 

mainfile.php/2002/286/. 


(2015) 1 LAW Policing Belief: Impact of Blasphemy Laws on Human Rights 43 

was a reincarnation of Jesus Christ, and that he had 

received revelations from God. 27 According to a 

number of sources close to the case, he suffered 

from severe psychiatric problems. 28 His lawyer, 

Saadia Khalid, reportedly requested an exam to 

determine whether he was mentally fit to stand trial, 

but the request was denied. The judge argued that 

Kenneth’s mental status was irrelevant as he had 

already admitted to declaring that Muhammad was 

a false prophet. 29 

Khalid reportedly insisted that the allegedly 

blasphemous statements were not “the hateful 

sacrilege of an infidel, but the demented ravings of 

a sick man.” 30 Nevertheless, in July 2002 Kenneth 

was sentenced to death. 31 Authoritative interpretations 

of international law since 1999 have stipulated that the 

death penalty should not be applicable to persons suffering 

from mental retardation, mental disorder, or limited 

mental competence. 32 

27 Paul Watson, “A Deadly Place for Blasphemy,” Los 

Angeles Times, August 5, 2002, http://articles.latimes. 

com/2002/aug/05/world/fg-blasphemy5/4. 

28 This has been reported by the police, Kenneth’s lawyer, 

and a Christian human rights worker who was involved 

in his case. See ibid.; “Pakistani Christian Sentenced to 

Death,” BBC, July 18, 2002, http://news.bbc.co.uk/ 1/hi/world/ 

south_asia/2136291.stm; “Pakistani Court Condemns Catholic 

to Death for Blasphemy,” AFP, July 18, 2002. 

29 Watson, “A Deadly Place for Blasphemy.” 

30 Ibid. 

31 “Pakistani Christian Sentenced to Death,” BBC. 

32 

See UN Economic and Social Council Resolution 

1989/64, “Implementation of the Safeguards 

Guaranteeing Protection of the Rights of Those Facing 

the Death Penalty” (ESC/RES/1989/64), May 1989 [This 

resolution recommended “eliminating the death penalty 

for persons suffering from mental retardation or 

extremely limited mental competence”]; UN Commission 

on Human Rights Resolution, “Question of the Death 

Penalty,” (E/CN.4/RES/1999/61), April 28, 1999, and 

UN Commission on Human Rights Resolution, “The 

Question of the Death Penalty,” (E/CN.4/RES/2000/65), 

April 27, 2000 [These resolutions urge states to refrain from 

imposing the death penalty “on a person suffering from any 

form of mental disorder,” a term that includes both the 

mentally ill and the mentally retarded]. See also Human 

Rights Watch, Beyond Reason: The Death Penalty and 

Offenders with Mental Retardation (New York: Human 

Rights Watch, 2001), 18, http://www.hrw.org/en/reports/ 

2001/03/05/beyond-reason. 

Lack of Safeguards to Prevent Abuse 

Pakistan’s blasphemy laws are routinely used to 

exact revenge, apply pressure in business or land 

disputes, and for other matters entirely unrelated to 

blasphemy. Critics ranging from academics to civil 

society activists and journalists have argued that 

in most instances, charges of blasphemy are 

leveled for ulterior motives. 33 

In September 2006, police refused to register a 

case of alleged theft by Shahid Masih and 

Mohammad Ghaffar due to insufficient evidence 

provided by the complainant, Arshad Khan. 34 

According to the Asian Commission for Human 

Rights, police advised Khan to instead lodge a 

complaint of blasphemy against them. 35 He 

subsequently filed a police report alleging that the 

two men had stolen and burned an Islamic 

religious text. Despite knowing that the charges 

were fabricated, the police arrested Masih and 

Ghaffar for blasphemy under Section XV of the 

PPC. 36 Both men were eventually acquitted of the 

charges and released. 37 In another case, Parvez 

Masih, the headmaster of a Christian high school 

in Sialkot, was arrested in 2001 for alleged 

blasphemy under Article 295(C). 38 According to 

33 Raza, “The Unholy War”; Bureau of Democracy, Human 

Rights, and Labor, “Pakistan,” in International Religious 

Freedom Report 2009; “Pakistani Christian Sentenced to 

Death,” BBC; “‘Blasphemy Laws’ Used to Jail Elderly 

Christian in Pakistan,” Compass Direct News, June 29, 

2010, http://www.compassdirect.org/english/country/ 

pakistan/22092/ 

34 Masih is a common Pakistani Christian surname. Bureau 

of Democracy, Human Rights, and Labor, “Pakistan,” in 

2007 Country Reports on Human Rights Practices 

(Washington, DC: U.S. Department of State, March 

2008), http://www.state.gov/g/drl/rls/hrrpt/2007/ 100619. 

htm. 

35 Asian Human Rights Commission, “Pakistan: Torture of 

Two Men After Being Falsely Charged under 

Blasphemy Law,” news release, October 10, 2006, 

http://www.ahrchk.net/ua/ mainfile.php/2006/2021/. 

36 Ibid. 

37 “Christian Unexpectedly Acquitted of Blasphemy,” 

Compass Direct News, September 18, 2007, http://wwrn. 

org/articles/26288/. 

38 Ibid.; “Pakistani Group Demands Repeal of Blasphemy 

Laws,” Agence France-Presse, June 15, 2001. 

43 


44 Policing Belief: Impact of Blasphemy Laws on Human Rights (2015) 1 LAW 

numerous reports, Mohammed Ibrahim, the 

owner of another school in the area, fabricated 

the accusation due to his displeasure with the 

competition created by Masih’s school. 39 

The low evidentiary threshold required to 

register cases of blasphemy, coupled with the 

sensitive nature of the crime, exacerbates the 

laws’ potential for abuse. Until 2004, when a 

legal amendment began requiring a senior police 

official to conduct an investigation before 

arresting a suspect on blasphemy charges, an 

individual could be charged and arrested based 

solely on the accusation of a reliable person. 40 In 

a positive ruling in 2007, the Punjab High Court 

found a blasphemy case against defendant 

Muhammad Sharif to be inadmissible, citing the 

failure of the police to investigate and 

substantiate the allegations. 41 However, this 

appears to have been an exception rather than the 

norm. In some cases, police officers may lack the 

resources necessary to carry out effective 

investigations. There have also been reports of a 

lack of willingness to investigate the allegations. 

Police officers have allegedly been harassed and 

intimidated by Islamic radicals who demand the 

arrest of suspected blasphemers regardless of 

whether the accusations have been substantiated. 

This kind of pressure was reported in the case 

of Robin Sardar, who was arrested on blasphemy 

charges in 2008. His accuser had tried to set up a 

shoe stall outside of Sardar’s medical practice but 

was told to remove it. He then filed a complaint 

claiming that the doctor had blasphemed against 

the prophet Muhammad and threatened to burn 

39 Asian Human Rights Commission, “Pakistan: Death 

Threats to Minorities by the Fundamentalists,” news 

release, April 27, 2001, http://www.ahrchk.net/ua/ 

mainfile.php/2001/95/; Shea, “Testimony of Nina Shea.” 

40 International Crisis Group, The State of Sectarianism in 

Pakistan (Brussels: International Crisis Group, April 

2005), http://www.crisisgroup.org/~/media/Files/asia/ 

south-asia/pakistan/095_the_state_of_sectarianism_in_ 

pakistan.ashx. 

41 “Pakistan Authorities Held Up for False Blasphemy 

Case,” Press Trust of India, December 13, 2007. 

down Sardar’s house and kill his family if police 

did not arrest him. Sardar was then arrested and 

charged without any preliminary investigation. 42 

In another example from January 2009, five 

members of the Ahmadiyya community were 

arrested in Punjab for allegedly writing the name 

of the prophet Muhammad on a bathroom wall at 

a mosque. 43 Several reports on the incident have 

indicated that there was no evidence implicating 

the arrested individuals, and police did not carry 

out any investigation prior to their arrest. 

According to the Asian Human Rights Commission 

(AHRC), militant Islamists pressured police to 

detain the 5 Ahmadis, threatening to “close down 

the whole city and attack the houses of Ahmadi 

sect members.” 44 

(to be continued) 

* * * 

42 Centre for Legal Aid, Assistance, and Settlement, “A 55 

Year Old Pakistani Christian Doctor Jailed on 

Blasphemy Charges,” May 9, 2008, http://www.claas. 

org.uk/bcase_detail.aspx?ID=162; “Is There an End?” 

Dawn, August 6, 2009, http://www.dawn.com/wps/wcm/ 

connect/dawn-content-library/dawn/news/pakistan/ 

provinces/18-is-there-an-end-am-01 

43 The five suspects included four teenagers, reportedly 

ranging in age from 14 to 16. See Satinder Bains and 

Maqbool Ahmad, “Ahmadi Children Arrested on False 

Charges in Pakistan, Alleges Indian Ahmadiyya 

Community,” Punjab Newsline, February 10, 2009, 

http://www.punjabnewsline.com/content/view/15239/38/ 

; Bureau of Democracy, Human Rights, and Labor, 

“Pakistan,” in 2009 Country Reports on Human Rights 

Practices (Washington, DC: U.S. Department of State, 

March 2010), http://www.state.gov/g/drl/rls/hrrpt/2009/ 

sca/136092.htm. 

44 Bains and Ahmad, “Ahmadi Children Arrested on False 

Charges in Pakistan.” For another, more recent case, see 

“‘Blasphemy Laws’ Used to Jail Elderly Christian in 

Pakistan,” Compass Direct News, June 29, 2010, http:// 

www.compassdirect.org/english/country/pakistan/22092, 

“73 Years Old Pakistani Christian Arrested under 

Blasphemy after Dialogue on Religion,” Pakistan 

Christian Post, June 25, 2010, http://www.pakistan 

christianpost.com/headlinenewsd.php?hnewsid=2076; 

Aftab Alexander Mughal, “Christian and Shia Men 

Facing Blasphemy Charges in Pakistan,” FaithFreedom. 

org, June 26, 2010, http://www.faithfreedom.org/ 

features/news/christian-and-shia-men-facing-blasphemychargesin-pakistan/. 


HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION? 

[Tracing the history of Andhra, Visalandhra and separate Telangana movements] - I. Mallikarjuna Sharma ♣ 

I think the welcome speech by Sri Ongole 

Venkatarangaiah Pantulu garu, Chairman of the 

Reception Committee of this Nellore Andhrajana 

Maha Sabha, dated 1 June 1917 [Pingala nama 

samvatsara Jyeshta Suddha 11, Sukravaaramu], deserves 

and needs to be cited here in extenso: 

“Andhra mothers and gentlemen, 

Welcome...…… 

History of Simhapura [veera vikrama]: Our Nellore in 

this Andhra country is a very ancient abode. In 

the Sabha Parva of Andhra Bharata, in the event 

of description of the Varuna Sabha (Varuna’s 

royal court), along with sacred rivers like 

Krishnaveni and Saraswathi, tributes were also 

paid to the river Penna. In the Andhra literary 

world, there is no other place more famous than 

the Nellore district. 

Several famous poets like Tikkana, following in 

the footsteps of Nannya called the First Telugu 

poet, belong to this place. Poets from Nellore 

outnumber others whose lives were described in 

the compilation of the lives of Andhra poets done 

by Sri Veeresalingam Pantulu. Though it seems 

the Chola kings at one time ruled over the 

Telugu lands also, all the same, our Nellore 

district has stood like a mountain obstructing the 

encroachments of Tamil language and protecting 

and promoting the sweetness, sanctity, shape and 

sanitation of the Telugu language. It is not odd 

that the name and fame of Kavi Brahma Tikkana 

Somayaji is spread over every nook and corner 

of Andhradesa. Tikkana was applauded in the 

prior poets’ tributes section of the Srikamparaja 

Caritra too, which makes it clear that his fame 

spread to non-Andhra countries too. This great 

poet had not only gained supreme command over 

the Telugu and Sanskrit languages both but also 

displayed unparalleled statesmanship. He had 

enabled his master Manumasiddhi, who lost his 

kingdom, to regain it.” 1 

♣ Continued from Law Animated World, 15-02-2015 issue; 

emphases in bold ours - IMS. 

1 Tikkana beseeched Ganapati Deva of Kakatiyas, who was 

so impressed by the luster and lore of this great poet, that he 

Then, narrating the greatness and fame of 

certain modern stalwarts hailing from Nellore 

district, Sri Venkatarangaiah made particular 

reference to Sri Vennelaganti Subba Rao (1784- 

1839) who in the early days of East India 

Company’s entry, joined its service and learning 

a little English went to North Kanara districts i.e. 

the western coast in those days when railways 

were absent and later came back to settle in 

Madras as translator in Sadar Court (now Madras 

High Court) and says his autobiography written 

in English is printed and available with his family 

descendants. Then he paid tributes to Sri 

Yeragudipati Venkatachalam pantulu who caused 

a tall gopura [tower] to be built on the bank of 

Penna at the entry of Sri Ranganayaka Temple 

near Nellore; to Sri Palle Chanchal Rao pantulu, 

settled in Madras, a donor par excellence; to Sri 

Mangamuri Narasimham Pantulu who, per the 

command of the sloka ‘paradharmo bhayavaha’ 2 , 

started the [now famous] Hindu School in Bandar 

(Machilipatnam) in one day [overnight]; to Sri 

Gurram Appanna Sastri who as a Court scholar 

[vakil?] in Madras High Court had assisted 

several Judges too by his legal wisdom. 

Thereafter he paid tributes to the then recently 

deceased Sri Venkatagiri Maharaja, doyen among 

the zamindars in Madras and scholar in Andhra 

literature, to Diwan Bahadur Sri Boppuri 

Nagaiah, great lover of Telugu language, Sri 

Bezawada Pattabhirama Reddy, zealous activist 

of Andhra movement, et al. 

sent his armies to Nellore without delay, to conquer 

Manumasiddhi’s enemies, and restored the kingdom to 

that lost king. - IMS. 

2 Bhagavad Gita, 3:35: “sreyan sva-dharmo vigunah / paradharmat 

svanusthitat /sva-dharme nidhanam sreyah / 

para-dharmo bhayavahah” [“…far better to discharge one's 

prescribed duties (meaning of one’s own religious stream), even 

though they may be faulty, than another's duties. Destruction in 

the course of performing one's own duty is better than 

[prospering by] engaging in another's duties, for to follow 

another's path is fearsome.”] 

45 Law Animated World, 15-31 March 2015

46 Historical inevitability or electoral corruption? [IMS] (2015) 1 LAW 

Continuing his address, and after paying 

tributes to and expressing loyalty to the British 

Crown, Sri Venkatarangaiah briefly delineated 

the two important aims and objectives of the 

Andhra movement: “1. Establishment of an Andhra 

University; 2. Formation of a separate Andhra State 

through linguistic reorganization of provinces.” He 

noted that though opinions differed on the 

formation a separate Andhra State, all 

knowledgeable persons generally supported it. He 

referred to the acceptance of the demand by Sri 

V.P. Madhava Rao, former Primier of Mysore 

State, and the decision of the Standing Committee 

of the Indian National Congress to bring the 11 

Telugu districts in Madras Province under a 

separate Andhra Committee. He felt that if people 

could be convinced that historically Andhras 

were a nation on their own and there were times 

when their sway extended over the breadth of 

many territories in India for considerable periods, 

perhaps even the staunch opponents of Andhra 

State could be impressed and veered round to 

support the demand, and then began to narrate the 

ancient history of Andhras in some detail: 

“Tracing racial history, in the days of Manu 

Smriti 3 Andhras were nomads residing outside 

the villages and also subsisting on hunting wild 

animals in the forests. In Aitaryea Brahamana 

Andhras are grouped along with lower tribes like 

Pulinda, etc. But at the same time they are also 

referred to as Viswamitra’s offspring. … …when 

Viswamitra could do re-creation in opposition to 

Brahma’s entire creation, cannot we Andhras 

gain just a small separate State for ourselves? 

By the time of Srikrisha, Andhras seems to have 

risen to an eminent stage. One illustration would 

suffice: In Harivamsa, Chanuura who fought 

with Srikrishna was said to be an Andhra Malla 

(wrestler). So it is clear per the above criteria that 

there was a race of Andhras from ancient times. 

Further, it is said that there was a king by name 

Andhaka among the clan of Yadus, and his 

territory came to be known as Andhra country. In 

Matsya Purana, written in the form of futuristic 

telling, it was stated that Andhras would become 

3 Dated anywhere between 1250 BCE-200 CE, and Sri 

Venkatarangaiah pantulu seems to be taking the older. 

kings and Andhra bhRtyas would also become 

kings. Then, to whichever period this 

mythological prognosis applies, it is certain this 

much that by the time of Ashoka the Andhras 

had become a strong nation. Thereafter, history 

records that the Andhra Empire extended far and 

wide from Magadha to Kanchipuram. In the 

times of Dandi, a great Sanskrit poet, 

Andhradesa was said to spread up to and even 

beyond Jagannatha temple site [i.e. Puri in Orissa] 

and there was said to be a big Andhra city. 

During the reign of Kakatiyas, Andhras 

flourished very much, which fact is illustrated in 

Prataparudriiyam. Errapragada referred to the 

king Sri Vema as the welfare-ruler of Central 

Andhra State; if Addanki, his capital, was to be 

in central Andhra, one need not very much dilate 

on the vast territorial limits of the entire Andhra 

state. Later under Srikrishnadeva Raya the 

[Andhra] empire spread over the entire area from 

Katakam (Cuttack) to Kanyakumari. Shortly 

after the sunset of Vijayanagara Empire, Andhra 

kings spread from Jagannatha temple site to 

Simhala (Sri Lanka) and established kingdoms at 

various places in the entire stretch. The Nayak 

kings in Tamil region (Tanjavur) were Andhras. 

The kings of Candy in Sri Lanka were Telugus. 

[the famous patriot-martyr of Panchalan Kurichi in extreme 

South - Veera Pandya Kattabomman – was a Telugu - IMS.] 

It is said that even in music there is one tune called 

Andhri. As such, it is undoubted that there was an 

Andhradesa of yore; this Andhra country is about 2000 

years old.” 


* * * 

Read and subscribe to: 

F R O N T I E R 

Editor: TIMIR BASU 

A radical leftist weekly being published 

since the last 45 years from Calcutta 

Annual subscription : Rs. 350/- 

Associate Membership : Rs. 600/- (annual) 

Life subscription : Rs. 4000/-+ 

Advertisement Tariff – 

Outer Cover: Rs. 5000/-; Inner cover: Rs. 4000/- 

Full page: Rs. 3000/-; Half page: Rs. 2000/-. 

For details contact: 

FRONTIER, 61 Mott Lane, Kolkata - 700 013 (W.B.) 

Ph: 033 - 22653202; E-mail: frontierweekly@hotmail.com 

Website: www.geocities.com/frontierweekly 


(2015) 1 LAW Shreya Singhal v. Union of India [IND-SC] ISC-133 

(2015) 1 LAW ISC-133 

SUPREME COURT OF INDIA 

AT NEW DELHI 

CRIMINAL/CIVIL ORIGINAL 

JURISDICTION 

WRIT PETITION (Criminal) No. 167 of 2012 

Date of Judgment ♦ : Tuesday, 24 March 2015 

Shreya Singhal … Petitioner 

Versus 

Union of India … Respondent. 

With WRIT PETITION (CIVIL) No. 21 OF 2013 

WRIT PETITION (CIVIL) No. 23 of 2013 


WRIT PETITION (CRIMINAL) No. 199 of 2013 






Citation: (2015) 1 LAW ISC-133 

CORAM: 

J. CHELAMESWAR, J. 

R.F. NARIMAN, J. 

* * * 

Supreme Court Strikes Down Section 66A Of The IT Act: 

In a landmark judgment with far-reaching consequences, the 

Supreme Court on March 24, 2015 very strongly fortified the right 

to freedom of speech and expression and expanded the contours of 

free speech to the Internet also by striking down outright as 

‘unconstitutional’ Section 66A of the Information Technology 

Act, which has been [abused] indiscriminately and brazenly as a 

convenient random tool to arrest any person criticizing the 

government/ political leaders and putting them behind bars on the 

pretext that the mail posted was “offensive” or “menacing”. I have 

since a long time vehemently opposed Section 66A of the IT Act, 

and even the Supreme Court too earlier once had expressed its 

unhappiness over its brazen misuse! But this time the Court has 

caught the bull by the horns and minced no words in scrapping this 

much abused and reviled Section 66A of the IT Act! This has come as 

a big respite not only to those who were directly affected by this 

notorious Section but also for all citizens who treasure their right to 

voice their opinions as per their own free will! 

[Some prominent instances of (ab)use of S 66A:] 1. 12 April 2012: 

Ambikesh Mahapatra, a Jadavpur University Professor, and another 

arrested for circulating a cartoon that mocked West Bengal CM Mamata 

Banerjee; 2. May 2012: Mayank Mohan Sharma and KVJ Rao, Air India 

employees, arrested for posting vulgar jokes about the then Gujarat CM 

Narendra Modi and other politicians.; 3. 8 September 2012: Aseem Trivedi 

♦ 

Courtesy: Supreme Court of India at http://judis.nic.in/; 

emphases in bold ours - IMS. 

held for mocking Parliament and posting cartoons caricaturing the national 

emblem.; 4. 30 October 2012: Offensive comments on Twitter about the 

then Union Finance Minister P Chidambaram’s son, led to the arrest of 

Puducherry businessman Ravi Srinivasan.; 5. 19 November 2012: Two girls 

held in Thane for Facebook post questioning shut down of Mumbai for 

Shiv Sena patriarch Bal Thackeray’s funeral.; 6. August 6, 2013: Poet and 

writer Kanwal Bharti sent to jail for criticizing the UP state government.; 

7. November 2013: Taslima Nasreen, the Bangladeshi writer, accused of 

hurting religious sentiments of the Muslim community via social media.; 

8. June 2014: 11 students of Sree Krishna College, Thrissur, and its 

Principal were accused under Section 66A for ‘objectionable’ publication 

in their campus magazine against the PM Narendra Modi and certain other 

leaders.; 9. March 2015: A Class XI student of Bareilly was arrested by 

Rampur police, purportedly at the instance of Mr Azam Khan, Minister in 

UP, for posting a Facebook comment criticizing him. 

A word of caution here: Citizens still need to be very careful 

while posting comments on websites, facebook and social network 

sites as provisions similar to Section 66A still exist in Section 153, 

153A and 505 of the Indian Penal Code. Eminent Supreme Court 

lawyer and Senior Advocate, Kapil Sibal too, welcoming the Apex 

Court judgment, sounded a note of caution adding that, “Section 

66A … is a bailable offence. The police used to invoke provisions 

of Indian Penal Code to effect the arrests. So, one should be well 

advised to still exercise restraint while exercising free speech on 

social network sites.” Sections 153/153A stipulate for charging a 

person who gives a statement either in writing or orally that incites 

communal riots/provokes communal tension/ enmity between 

communities; punishable with imprisonment from 6 months to one 

year with fine. Section 505 makes punishable persons who spread 

rumor through their statements to cause public disorder with an 

imprisonment of up to 3 years. Those too [also Section 124A – the 

sedition clause which prescribes life imprisonment (IMS)] need to be 

erased from our penal laws! [Sanjeev Sirohi, Advocate, s/o Col 

BPS Sirohi, Meerut, UP.] 

* * * 

CONSTITUTIONAL LAW AND STATUTORY LAW – 

Information Technology Act – Section 66A of the IT Act and 

Section 118(d) of the Kerala Police Act – compatibility with 

fundamental rights – held infringes Article 19 (1)(a) and not 

saved by Article 19(2) – Conclusions of the Court – The 

conclusions of the Court are summarized as follows: 

(a) Section 66A of the Information Technology Act, 2000 is 

struck down in its entirety being violative of Article 

19(1)(a) and not saved under Article 19(2).; (b) Section 

69A and the Information Technology (Procedure & 

Safeguards for Blocking for Access of Information by 

Public) Rules 2009 are constitutionally valid.; (c) Section 

79 is valid subject to Section 79(3)(b) being read down to 

mean that an intermediary upon receiving actual knowledge 

from a court order or on being notified by the appropriate 

government or its agency that unlawful acts relatable to 

Article 19(2) are going to be committed then fails to 

expeditiously remove or disable access to such material. 

Similarly, the Information Technology “Intermediary 

Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule 

(4) being read down in the same manner as indicated in the 

judgment.; (d) Section 118(d) of the Kerala Police Act is 

struck down being violative of Article 19(1)(a) and not 

saved by Article 19(2). 

- Para 119, p. ISC-72. 

* * * 

47 


ISC-134 Shreya Singhal v. Union of India [IND-SC] (2015) 1 LAW 

J U D G M E N T 

R.F. NARIMAN, J. 

1. This batch of writ petitions filed under Article 

32 of the Constitution of India raises very 

important and far-reaching questions relatable 

primarily to the fundamental right of free speech 

and expression guaranteed by Article 19(1)(a) of 

the Constitution of India. The immediate cause 

for concern in these petitions is Section 66A of 

the Information Technology Act of 2000. This 

Section was not in the Act as originally enacted, 

but came into force by virtue of an Amendment 

Act of 2009 with effect from 27.10.2009. Since 

all the arguments raised by several counsel for the 

petitioners deal with the unconstitutionality of 

this Section it is set out herein-below: 

“66-A. Punishment for sending offensive messages 

through communication service, etc. — 

Any person who sends, by means of a computer 

resource or a communication device, — 

(a) any information that is grossly offensive or has 

menacing character; or 

(b) 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 

(c) 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. 

Explanation.— For the purposes of this section, 

terms “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.” 1 

1 The genealogy of this Section may be traced back to 

Section 10(2)(a) of the U.K. Post Office (Amendment) 

Act, 1935, which made it an offence to send any message 

by telephone which is grossly offensive or of an indecent, 

2. A related challenge is also made to Section 

69A introduced by the same amendment which 

reads as follows:- 

obscene, or menacing character. This Section was 

substantially reproduced by Section 66 of the UK Post 

Office Act, 1953 as follows: 

“66. Prohibition of sending offensive or false telephone 

messages or false telegrams, etc. 

If any person – 

(a) sends any message by telephone which is grossly 

offensive or of an indecent, obscene or menacing 

character ; 

(b) sends any message by telephone, or any telegram, 

which he knows to be false, for the purpose of 

causing annoyance, inconvenience or needless 

anxiety to any other person ; or 

(c) persistently makes telephone calls without 

reasonable cause and for any such purpose as 

aforesaid, 

he shall be liable on summary conviction to a fine not 

exceeding ten pounds, or to imprisonment for a term not 

exceeding one month, or to both.” 

This Section in turn was replaced by Section 49 of the 

British Telecommunication Act, 1981 and Section 43 of 

the British Telecommunication Act, 1984. In its present 

form in the UK, it is Section 127 of the 

Telecommunication Act, 2003 which is relevant and 

which is as follows:- 

“127. Improper use of public electronic 

communications network 

(1) A person is guilty of an offence if he – 

(a) sends by means of a public electronic 

communications network a message or other 

matter that is grossly offensive or of an indecent, 

obscene or menacing character; or 

(b) cause any such message or matter to be so sent. 

(2) A person is guilty of an offence if, for the purpose of 

causing annoyance, inconvenience or needless 

anxiety to another, he – 

(a) sends by means of a public electronic 

communications network, a message that he 

knows to be false, 

(b) causes such a message to be sent; or 

(c) persistently makes use of a public electronic 

communications network. 

(3) A person guilty of an offence under this section shall 

be liable, on summary conviction, to imprisonment 

for a term not exceeding six months or to a fine not 

exceeding level 5 on the standard scale, or to both. 

(4) Subsections (1) and (2) do not apply to anything done 

in the course of providing a programme service 

(within the meaning of the Broadcasting Act 1990 (c.42)). 


48


“69-A. Power to issue directions for blocking for 

public access of any information through any 

computer resource. – 

(1) Where the Central Government or any of 

its officers specially authorised by it in 

this behalf is satisfied that it is necessary 

or expedient so to do, in the interest of 

sovereignty and integrity of India, defence 

of India, security of the State, friendly 

relations with foreign States or public 

order or for preventing incitement to the 

commission of any cognizable offence 

relating to above, it may subject to the 

provisions of subsection (2), for reasons 

to be recorded in writing, by order, direct 

any agency of the Government or 

intermediary to block for access by the 

public or cause to be blocked for access 

by the public any information generated, 

transmitted, received, stored or hosted in 

any computer resource. 

(2) The procedure and safeguards subject to 

which such blocking for access by the 

public may be carried out, shall be such as 

may be prescribed. 

(3) The intermediary who fails to comply 

with the direction issued under subsection 

(1) shall be punished with an 

imprisonment for a term which may 

extend to seven years and shall also be 

liable to fine.” 

3. The Statement of Objects and Reasons 

appended to the Bill which introduced the 

Amendment Act stated in paragraph 3 that: 

“3. A rapid increase in the use of computer and 

internet has given rise to new forms of crimes like 

publishing sexually explicit materials in electronic 

form, video voyeurism and breach of confidentiality 

and leakage of data by intermediary, e-commerce 

frauds like personation commonly known as 

Phishing, identity theft and offensive messages 

through communication services. So, penal 

provisions are required to be included in the 

Information Technology Act, the Indian Penal 

code, the Indian Evidence Act and the code of 

Criminal Procedure to prevent such crimes.” 

4. The petitioners contend that the very basis of 

Section 66A – that it has given rise to new forms 

of crimes – is incorrect, and that Sections 66B to 

67C and various Sections of the Indian Penal 

Code (which will be referred to hereinafter) are 

good enough to deal with all these crimes. 

5. The petitioners’ various counsel raised a large 

number of points as to the constitutionality of 

Section 66A. According to them, first and 

foremost Section 66A infringes the fundamental 

right to free speech and expression and is not 

saved by any of the eight subjects covered in 

Article 19(2). According to them, the causing of 

annoyance, inconvenience, danger, obstruction, 

insult, injury, criminal intimidation, enmity, 

hatred or ill-will are all outside the purview of 

Article 19(2). Further, in creating an offence, 

Section 66A suffers from the vice of vagueness 

because unlike the offence created by Section 66 

of the same Act, none of the aforesaid terms are 

even attempted to be defined and cannot be 

defined, the result being that innocent persons are 

roped in as well as those who are not. Such 

persons are not told clearly on which side of the 

line they fall; and it would be open to the 

authorities to be as arbitrary and whimsical as 

they like in booking such persons under the said 

Section. In fact, a large number of innocent 

persons have been booked and many instances 

have been given in the form of a note to the 

Court. The enforcement of the said Section would 

really be an insidious form of censorship which 

impairs a core value contained in Article 19(1)(a). 

In addition, the said Section has a chilling effect 

on the freedom of speech and expression. Also, 

the right of viewers is infringed as such chilling 

effect would not give them the benefit of many 

shades of grey in terms of various points of view 

that could be viewed over the internet. The 

petitioners also contend that their rights under 

Articles 14 and 21 are breached inasmuch there is 

no intelligible differentia between those who use 

the internet and those who by words spoken or 

written use other mediums of communication. To 

punish somebody because he uses a particular 

medium of communication is itself a 

discriminatory object and would fall foul of 

Article 14 in any case. 

49 



6. In reply, Mr. Tushar Mehta, learned Additional 

Solicitor General defended the constitutionality 

of Section 66A. He argued that the legislature is 

in the best position to understand and appreciate 

the needs of the people. The Court will, therefore, 

interfere with the legislative process only when a 

statute is clearly violative of the rights conferred 

on the citizen under Part-III of the Constitution. 

There is a presumption in favour of the 

constitutionality of an enactment. Further, the 

Court would so construe a statute to make it 

workable and in doing so can read into it or read 

down the provisions that are impugned. The 

Constitution does not impose impossible 

standards of determining validity. Mere 

possibility of abuse of a provision cannot be a 

ground to declare a provision invalid. Loose 

language may have been used in Section 66A to 

deal with novel methods of disturbing other 

people’s rights by using the internet as a tool to 

do so. Further, vagueness is not a ground to 

declare a statute unconstitutional if the statute is 

otherwise legislatively competent and nonarbitrary. 

He cited a large number of judgments 

before us both from this Court and from overseas 

to buttress his submissions. 

Freedom of Speech and Expression 

Article 19(1)(a) of the Constitution of India states 

as follows: 

“Article 19. Protection of certain rights regarding 

freedom of speech, etc. – 

(1) All citizens shall have the right – 

(a) to freedom of speech and expression;” 

7. Article 19(2) states: 

“Article 19. Protection of certain rights regarding 

freedom of speech, etc. – 

(2) Nothing in sub-clause (a) of clause (1) shall 

affect the operation of any existing law, or 

prevent the State from making any law, in so far 

as such law imposes reasonable restrictions on 

the exercise of the right conferred by the said 

sub-clause in the interests of the sovereignty and 

integrity of India, the security of the State, 

friendly relations with foreign States, public 

order, decency or morality or in relation to 

contempt of court, defamation or incitement to 

an offence.” 

8. The Preamble of the Constitution of India inter 

alia speaks of liberty of thought, expression, 

belief, faith and worship. It also says that India is 

a sovereign democratic republic. It cannot be over 

emphasized that when it comes to democracy, 

liberty of thought and expression is a cardinal 

value that is of paramount significance under our 

constitutional scheme. 

9. Various judgments of this Court have referred 

to the importance of freedom of speech and 

expression both from the point of view of the 

liberty of the individual and from the point of 

view of our democratic form of government. For 

example, in the early case of Romesh Thappar v. 

State of Madras, [1950] S.C.R. 594 at 602, this 

Court stated that freedom of speech lay at the 

foundation of all democratic organizations. In 

Sakal Papers (P) Ltd. & Ors. v. Union of India, 

[1962] 3 S.C.R. 842 at 866, a Constitution Bench 

of this Court said freedom of speech and 

expression of opinion is of paramount importance 

under a democratic constitution which envisages 

changes in the composition of legislatures and 

governments and must be preserved. In a separate 

concurring judgment Beg,J. said, in Bennett 

Coleman & Co. & Ors. v. Union of India & Ors., 

[1973] 2 S.C.R. 757 at 829, that the freedom of 

speech and of the press is the Ark of the 

Covenant of Democracy because public criticism 

is essential to the working of its institutions. 2 

10. Equally, in S. Khushboo v. Kanniamal & Anr., 

(2010) 5 SCC 600, this Court stated, in paragraph 

45 that the importance of freedom of speech and 

expression though not absolute was necessary as 

we need to tolerate unpopular views. This right 

requires the free flow of opinions and ideas 

2 Incidentally, the Ark of the Covenant is perhaps the single 

most important focal point in Judaism. The original ten 

commandments which the Lord himself gave to Moses 

was housed in a wooden chest which was gold plated and 

called the Ark of the Covenant and carried by the Jews 

from place to place until it found its final repose in the 

first temple - that is the temple built by Solomon. 


50


essential to sustain the collective life of the 

citizenry. While an informed citizenry is a precondition 

for meaningful governance, the culture of 

open dialogue is generally of great societal importance. 

11. This last judgment is important in that it 

refers to the “market place of ideas” ♠ concept that 

has permeated American Law. This was put in 

the felicitous words of Justice Holmes in his 

famous dissent in Abrams v. United States, 250 US 

616 (1919), thus: 

“But when men have realized that time has upset 

many fighting faiths, they may come to believe 

even more than they believe the very foundations 

of their own conduct that the ultimate good 

desired is better reached by free trade ♠ in ideas – 

that the best test of truth is the power of thought 

to get itself accepted in the competition of the 

market, and that truth is the only ground upon 

which their wishes safely can be carried out. 

That at any rate is the theory of our 

Constitution.” 

12. Justice Brandeis in his famous concurring 

judgment in Whitney v. California, 71 L. Ed. 1095 

said: 

“Those who won our independence believed that 

the final end of the state was to make men free to 

develop their faculties, and that in its government 

the deliberative forces should prevail over the 

arbitrary. They valued liberty both as an end and 

as a means. They believed liberty to be the secret 

of happiness and courage to be the secret of 

liberty. They believed that freedom to think as 

you will and to speak as you think are means 

indispensable to the discovery and spread of 

political truth; that without free speech and 

assembly discussion would be futile; that with 

them, discussion affords ordinarily adequate 

protection against the dissemination of noxious 

doctrine; that the greatest menace to freedom is 

an inert people; that public discussion is a political 

duty; and that this should be a fundamental 

♠ Capitalist culture has so permeated the minds of one and 

all these days, and ever since the last two centuries, that 

for any salient reference, ‘market’ and ‘trade’ readily 

come to mind and are used. They don’t even get the idea 

that instead of trade and market the words flow and 

exchange could be used. - IMS. 

principle of the American government. They 

recognized the risks to which all human 

institutions are subject. But they knew that order 

cannot be secured merely through fear of 

punishment for its infraction; that it is hazardous 

to discourage thought, hope and imagination; 

that fear breeds repression; that repression breeds hate; 

that hate menaces stable government; that the path of 

safety lies in the opportunity to discuss freely supposed 

grievances and proposed remedies; and that the 

fitting remedy for evil counsels is good ones. 

Believing in the power of reason as applied 

through public discussion, they eschewed silence 

coerced by law – the argument of force in its worst form. 

Recognizing the occasional tyrannies of governing 

majorities, they amended the Constitution so that 

free speech and assembly should be guaranteed. 

Fear of serious injury cannot alone justify 

suppression of free speech and assembly. Men 

feared witches and burnt women. It is the 

function of speech to free men from the bondage 

of irrational fears. To justify suppression of free speech 

there must be reasonable ground to fear that serious evil 

will result if free speech is practiced. There must be 

reasonable ground to believe that the danger 

apprehended is imminent. There must be 

reasonable ground to believe that the evil to be 

prevented is a serious one. Every denunciation of 

existing law tends in some measure to increase 

the probability that there will be violation of it. 

Condonation of a breach enhances the 

probability. Expressions of approval add to the 

probability. Propagation of the criminal state of 

mind by teaching syndicalism increases it. 

Advocacy of lawbreaking heightens it still 

further. But even advocacy of violation, however 

reprehensible morally, is not a justification for denying 

free speech where the advocacy falls short of incitement 

and there is nothing to indicate that the advocacy would 

be immediately acted on. The wide difference 

between advocacy and incitement, between 

preparation and attempt, between assembling and 

conspiracy, must be borne in mind. In order to 

support a finding of clear and present danger it must 

be shown either that immediate serious violence was to 

be expected or was advocated, or that the past conduct 

furnished reason to believe that such advocacy was then 

contemplated.” (at page 1105, 1106) (emphases ours) 

13. This leads us to a discussion of what is the 

content of the expression “freedom of speech and 

51 



expression”. There are three concepts which are 

fundamental in understanding the reach of this 

most basic of human rights. The first is 

discussion, the second is advocacy, and the third 

is incitement. Mere discussion or even advocacy 

of a particular cause howsoever unpopular is at 

the heart of Article 19(1)(a). It is only when such 

discussion or advocacy reaches the level of incitement 

that Article 19(2) kicks in. 3 It is at this stage that a 

law may be made curtailing the speech or 

expression that leads inexorably to or tends to 

cause public disorder or tends to cause or tends to 

affect the sovereignty and integrity of India, the 

security of the State, friendly relations with 

foreign States, etc. Why it is important to have 

3 A good example of the difference between advocacy and 

incitement is Mark Antony’s speech in Shakespeare’s 

immortal classic Julius Caesar. Mark Antony begins 

cautiously. Brutus is chastised for calling Julius Caesar 

ambitious and is repeatedly said to be an “honourable 

man”. He then shows the crowd Caesar’s mantle and 

describes who struck Caesar where. It is at this point, 

after the interjection of two citizens from the crowd, that 

Antony says – 

“ANTONY – 

Good friends, sweet friends, let me not stir you up 

To such a sudden flood of mutiny. 

They that have done this deed are honourable: 

What private griefs they have, alas, I know not, 

That made them do it: they are wise and honourable, 

And will, no doubt, with reasons answer you. 

I come not, friends, to steal away your hearts: 

I am no orator, as Brutus is; 

But, as you know me all, a plain blunt man, 

That love my friend; and that they know full well 

That gave me public leave to speak of him: 

For I have neither wit, nor words, nor worth, 

Action, nor utterance, nor the power of speech, 

To stir men's blood: I only speak right on; 

I tell you that which you yourselves do know; 

Show you sweet Caesar's wounds, 

poor poor dumb mouths, 

And bid them speak for me: but were I Brutus, 

And Brutus Antony, there were an Antony 

Would ruffle up your spirits and put a tongue 

In every wound of Caesar that should move 

The stones of Rome to rise and mutiny. 

ALL – We'll mutiny.” 

these three concepts in mind is because most of 

the arguments of both petitioners and respondents 

tended to veer around the expression “public 

order”. 

14. It is at this point that a word needs to be said 

about the use of American judgments in the 

context of Article 19(1)(a). In virtually every 

significant judgment of this Court, reference has 

been made to judgments from across the Atlantic. 

Is it safe to do so? 

15. It is significant to notice first the differences 

between the US First Amendment and Article 

19(1)(a) read with Article 19(2). The first 

important difference is the absoluteness of the U.S. first 

Amendment – Congress shall make no law which 

abridges the freedom of speech. Second, whereas 

the U.S. First Amendment speaks of freedom of 

speech and of the press, without any reference to 

“expression”, Article 19(1)(a) speaks of freedom 

of speech and expression without any reference to 

“the press”. Third, under the US Constitution, speech 

may be abridged, whereas under our Constitution, 

reasonable restrictions may be imposed. Fourth, under 

our Constitution such restrictions have to be in 

the interest of eight designated subject matters - 

that is any law seeking to impose a restriction on 

the freedom of speech can only pass muster if it is 

proximately related to any of the eight subject 

matters set out in Article 19(2). 

16. Insofar as the first apparent difference is 

concerned, the U.S. Supreme Court has never given 

literal effect to the declaration that Congress shall make 

no law abridging the freedom of speech. The approach 

of the Court which is succinctly stated in one of 

the early U.S. Supreme Court Judgments, 

continues even today. In Chaplinsky v. New 

Hampshire, 86 L. Ed. 1031, Justice Murphy who 

delivered the opinion of the Court put it thus:- 

“Allowing the broadest scope to the language 

and purpose of the Fourteenth Amendment, it is 

well understood that the right of free speech is not 

absolute at all times and under all circumstances. There 

are certain well-defined and narrowly limited 

classes of speech, the prevention and punishment 

of which has never been thought to raise any 

Constitutional problem. These include the lewd 


52


and obscene, the profane, the libelous, and the 

insulting or 'fighting' words – those which by 

their very utterance inflict injury or tend to incite 

an immediate breach of the peace. It has been 

well observed that such utterances are no 

essential part of any exposition of ideas, and are 

of such slight social value as a step to truth that 

any benefit that may be derived from them is 

clearly outweighed by the social interest in order 

and morality. 'Resort to epithets or personal 

abuse is not in any proper sense communication 

of information or opinion safeguarded by the 

Constitution, and its punishment as a criminal act 

would raise no question under that instrument.' 

Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 

60 S.Ct. 900, 906, 84 L.Ed.1213, 128 A.L.R. 

1352.” (at page 1035) 

17. So far as the second apparent difference is 

concerned, the American Supreme Court has 

included “expression” as part of freedom of 

speech and this Court has included “the press” as 

being covered under Article 19(1)(a), so that, as a 

matter of judicial interpretation, both the US and 

India protect the freedom of speech and 

expression as well as press freedom. Insofar as 

abridgement and reasonable restrictions are 

concerned, both the U.S. Supreme Court and this 

Court have held that a restriction in order to be 

reasonable must be narrowly tailored or narrowly 

interpreted so as to abridge or restrict only what is 

absolutely necessary. It is only when it comes to the 

eight subject matters that there is a vast 

difference. In the U.S., if there is a compelling 

necessity to achieve an important governmental 

or societal goal, a law abridging freedom of 

speech may pass muster. But in India, such law 

cannot pass muster if it is in the interest of the 

general public. Such law has to be covered by one 

of the eight subject matters set out under Article 

19(2). If it does not, and is outside the pale of 

19(2), Indian courts will strike down such law. 

18. Viewed from the above perspective, 

American judgments have great persuasive value 

on the content of freedom of speech and 

expression and the tests laid down for its 

infringement. It is only when it comes to subserving 

the general public interest that there is the 

world of a difference. This is perhaps why in 

Kameshwar Prasad & Ors. v. The State of Bihar & 

Anr., 1962 Supp. (3) S.C.R. 369, this Court held: 

“As regards these decisions of the American 

Courts, it should be borne in mind that though 

the First Amendment to the Constitution of the 

United State reading "Congress shall make no 

law.... abridging the freedom of speech..." 

appears to confer no power on the Congress to 

impose any restriction on the exercise of the 

guaranteed right, still it has always been 

understood that the freedom guaranteed is 

subject to the police power – the scope of which 

however has not been defined with precision or 

uniformly. It is on the basis of the police power 

to abridge that freedom that the constitutional 

validity of laws penalising libels, and those 

relating to sedition, or to obscene publications 

etc., has been sustained. The resultant flexibility 

of the restrictions that could be validly imposed 

renders the American decisions inapplicable to 

and without much use for resolving the questions 

arising under Art. 19(1) (a) or (b) of our 

Constitution wherein the grounds on which 

limitations might be placed on the guaranteed 

right are set out with definiteness and 

precision ♥ .” (At page 378) 

19. But when it comes to understanding the 

impact and content of freedom of speech, in 

Indian Express Newspapers (Bombay) Private 

♥ What precision? Even ‘incitement to offence’ has been 

introduced as one of the grounds for reasonable 

restrictions much later and so incitement to any hundreds 

of offences under the penal code and other codes can be 

cited as ground for restriction and is this precision? 

Actually the Constituent Assembly in its first sessions 

and before the advent of Ambedkar as Chairman of the 

Drafting Committee rejected any move to introduce 

reasonable restrictions clause and wanted that the 

fundamental rights guaranteed should be absolute, 

leaving it to the Courts to decide, like in America, 

whether any police powers curtailing those are valid and 

reasonable on the criterion of balance of interests and 

rights of all citizens. And ‘defamation’!? When 

defamation by itself is a separate criminal offence to be 

prosecuted in certain circumstances and conditions, why 

to use it under reasonable restrictions to curb a 

fundamental right? What is left of this fundamental right 

then? Virtually nothing, except Judges’ mercy!? - IMS. 

53 



Limited & Ors. v. Union of India & Ors., (1985) 2 

SCR 287, Venkataramiah,J. stated: 

“While examining the constitutionality of a law 

which is alleged to contravene Article 19 (1) (a) 

of the Constitution, we cannot, no doubt, be 

solely guided by the decisions of the Supreme 

Court of the United States of America. But in 

order to understand the basic principles of 

freedom of speech and expression and the need 

for that freedom in a democratic country, we 

may take them into consideration. The pattern of 

Article 19 (1) (a) and of Article 19 (1) (g) of our 

constitution is different from the pattern of the 

First Amendment to the American Constitution 

which is almost absolute in its terms. The rights 

guaranteed under Article 19(1)(a) and Article 19 

(1) (g) of the Constitution are to be read along 

with clauses (2) and (6) of Article 19 which 

carve out areas in respect of which valid 

legislation can be made.” (at page 324) 

20. With these prefatory remarks, we will now go 

to the other aspects of the challenge made in 

these writ petitions and argued before us. 

A. Article 19(1)(a) – 

Section 66A has been challenged on the ground 

that it casts the net very wide – “all information” 

that is disseminated over the internet is included 

within its reach. It will be useful to note that 

Section 2(v) of Information Technology Act, 

2000 defines information as follows: 

“2. Definitions. – (1) In this Act, unless the 

context otherwise requires, – 

(v) “Information” includes data, message, text, 

images, sound, voice, codes, computer 

programmes, software and databases or micro 

film or computer generated micro fiche.” 

Two things will be noticed. The first is that the 

definition is an inclusive one. Second, the 

definition does not refer to what the content of 

information can be. In fact, it refers only to the 

medium through which such information is 

disseminated. It is clear, therefore, that the 

petitioners are correct in saying that the 

public’s right to know is directly affected by 

Section 66A. ψ Information of all kinds is roped in 

– such information may have scientific, literary or 

artistic value, it may refer to current events, it 

may be obscene or seditious. That such 

information may cause annoyance or 

inconvenience to some is how the offence is 

made out. It is clear that the right of the people to 

know – the market place of ideas – which the 

internet provides to persons of all kinds is what 

attracts Section 66A. That the information sent 

has to be annoying, inconvenient, grossly 

offensive etc., also shows that no distinction is 

made between mere discussion or advocacy of a 

particular point of view which may be annoying 

or inconvenient or grossly offensive to some and 

incitement by which such words lead to an 

imminent causal connection with public disorder, 

security of State etc. The petitioners are right in 

saying that Section 66A in creating an offence 

against persons who use the internet and annoy or 

cause inconvenience to others very clearly affects 

the freedom of speech and expression of the 

ψ I am unable to understand how this definition per se 

affects public’s right to know this or that and how 

66A is connected to it adversely so to speak. 

66A attaches some adjectives to the information so 

defined and only if that information falls under the 

category of information with such adjectives – i.e. 

menacing or seditious etc. then that information is 

treated as an offence and the giver or broadcaster of 

that information is treated as an offender. It is just 

like defining anything – paper or copper plate or 

wooden board – in which something is written/ 

engraved as a document and then say that any such 

document with certain qualities (adjectives) is 

offensive. If the adjectives are precisely meant and 

worded it would be OK. For example, what is the 

difference between a written letter inciting some 

addressee to kill/injure certain type of persons or an 

e-mail or a face-book post exhorting the same? 

Since that is patent incitement, it would be an 

offence, even under ordinary criminal law. If the 

Court objects by saying that those adjectives are too 

vague and broad and encompass virtually all 

information and hence such categorization is 

arbitrary that would be an entirely different matter – 

it would be a rational objection. I think the Court’s 

logic fails here. - IMS. 


54


citizenry of India at large in that such speech or 

expression is directly curbed by the creation of 

the offence contained in Section 66A. In this 

regard, the observations of Justice Jackson in 

American Communications Association v. Douds, 94 

L. Ed. 925, are apposite: 

“Thought control is a copyright of totalitarianism, and 

we have no claim to it. It is not the function of 

our Government to keep the citizen from falling 

into error; it is the function of the citizen to keep 

the Government from falling into error. We 

could justify any censorship only when the 

censors are better shielded against error than the 

censored.” 

B. Article 19(2) 

One challenge to Section 66A made by the 

petitioners’ counsel is that the offence created by 

the said Section has no proximate relation with 

any of the eight subject matters contained in 

Article 19(2). We may incidentally mention that 

the State has claimed that the said Section can be 

supported under the heads of public order, 

defamation, incitement to an offence and decency 

or morality. 

21. Under our constitutional scheme, as stated earlier, 

it is not open to the State to curtail freedom of speech to 

promote the general public interest. In Sakal Papers 

(P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 

842, this Court said: 

“It may well be within the power of the State to 

place, in the interest of the general public, 

restrictions upon the right of a citizen to carry on 

business but it is not open to the State to achieve 

this object by directly and immediately curtailing 

any other freedom of that citizen guaranteed by 

the Constitution and which is not susceptible of 

abridgment on the same grounds as are set out in 

clause (6) of Article 19. Therefore, the right of 

freedom of speech cannot be taken away with the 

object of placing restrictions on the business 

activities of a citizen. Freedom of speech can be 

restricted only in the interests of the security of 

the State, friendly relations with foreign State, 

public order, decency or morality or in relation to 

contempt of court, defamation or incitement to 

an offence. It cannot, like the freedom to carry 

on business, be curtailed in the interest of the 

general public. If a law directly affecting it is 

challenged, it is no answer that the restrictions 

enacted by it are justifiable under clauses (3) to 

(6). For, the scheme of Article 19 is to enumerate 

different freedoms separately and then to specify 

the extent of restrictions to which they may be 

subjected and the objects for securing which this 

could be done. A citizen is entitled to enjoy each 

and every one of the freedoms together and 

clause (1) does not prefer one freedom to 

another. That is the plain meaning of this clause. 

It follows from this that the State cannot make a 

law which directly restricts one freedom even for 

securing the better enjoyment of another freedom. 

All the greater reason, therefore for holding that 

the State cannot directly restrict one freedom by 

placing an otherwise permissible restriction on 

another freedom.” (at page 863) (emphases ours) 

22. Before we come to each of these expressions, 

we must understand what is meant by the 

expression “in the interests of”. In The 

Superintendent, Central Prison, Fatehgarh v. Ram 

Manohar Lohia, [1960] 2 S.C.R. 821, this Court 

laid down: 

“We do not understand the observations of the 

Chief Justice to mean that any remote or fanciful 

connection between the impugned Act and the 

public order would be sufficient to sustain its 

validity. The learned Chief Justice was only 

making a distinction between an Act which 

expressly and directly purported to maintain 

public order and one which did not expressly 

state the said purpose but left it to be implied 

there from; and between an Act that directly 

maintained public order and that indirectly 

brought about the same result. The distinction 

does not ignore the necessity for intimate 

connection between the Act and the public order 

sought to be maintained by the Act.” (at pp. 834, 835) 

“The restriction made "in the interests of public 

order" must also have reasonable relation to the 

object to be achieved, i.e., the public order. If the 

restriction has no proximate relationship to the 

achievement of public order, it cannot be said 

that the restriction is a reasonable restriction 

within the meaning of the said clause.” (at p. 835) 

“The decision, in our view, lays down the correct 

test. The limitation imposed in the interests of 

public order to be a reasonable restriction, should 

55 



be one which has a proximate connection or 

nexus with public order, but not one far-fetched, 

hypothetical or problematical or too remote in 

the chain of its relation with the public order…. 

There is no proximate or even foreseeable 

connection between such instigation and the 

public order sought to be protected under [the] 

section. We cannot accept the argument of the 

learned Advocate General that instigation of a 

single individual not to pay tax or dues is a spark 

which may in the long run ignite a revolutionary 

movement destroying public order” (at p. 836). 

Reasonable Restrictions: 

23. This Court has laid down what “reasonable 

restrictions” means in several cases. In Chintaman 

Rao v. The State of Madhya Pradesh, [1950] S.C.R. 


“The phrase "reasonable restriction" connotes 

that the limitation imposed on a person in 

enjoyment of the right should not be arbitrary or 

of an excessive nature, beyond what is required 

in the interests of the public. The word 

"reasonable" implies intelligent care and 

deliberation, that is, the choice of a course which 

reason dictates. Legislation which arbitrarily or 

excessively invades the right cannot be said to 

contain the quality of reasonableness and unless 

it strikes a proper balance between the freedom 

guaranteed in article 19(1)(g) and the social control 

permitted by clause (6) of article 19, it must be 

held to be wanting in that quality.” (at page 763) 

24. In State of Madras v. V.G. Row, [1952] S.C.R. 


“This Court had occasion in Dr. Khare's case 

(1950) S.C.R. 519 to define the scope of the 

judicial review under clause (5) of Article19 

where the phrase "imposing reasonable 

restriction on the exercise of the right" also 

occurs and four out of the five Judges 

participating in the decision expressed the view 

(the other Judge leaving the question open) that 

both the substantive and the procedural aspects 

of the impugned restrictive law should be 

examined from the point of view of 

reasonableness; that is to say, the Court should 

consider not only factors such as the duration and 

the extent of the restrictions, but also the 

circumstances under which and the manner in 

which their imposition has been authorised. It is 

important in this context to bear in mind that the 

test of reasonableness, whereever prescribed, 

should be applied to each, individual statute 

impugned and no abstract standard, or general 

pattern of reasonableness can be laid down as applicable 

to all cases. The nature of the right alleged to have been 

infringed, the underlying purpose of the restriction 

imposed, the extent and urgency of the evil sought to be 

remedied thereby, the disproportion of the imposition, 

the prevailing conditions at the time, should all enter 

into the judicial verdict. In evaluating such elusive 

factors and forming their own conception of 

what is reasonable, in all the circumstances of a 

given case, it is inevitable that the social 

philosophy and the scale of values of the judges 

participating in the decision should play an 

important part, and the limit to their interference 

with legislative judgment in such cases can only 

be dictated by their sense of responsibility and 

self-restraint and the sobering reflection that the 

Constitution is meant not only for people of their 

way of thinking but for all, and that the majority 

of the elected representatives of the people have, 

in authorising the imposition of the restrictions, 

considered them to be reasonable.” (at pages 606- 

607) (emphasis ours) 

25. Similarly, in Mohd. Faruk v. State of Madhya 

Pradesh & Ors., [1970] 1 S.C.R. 156, this Court 

said: 

“The Court must in considering the validity of 

the impugned law imposing a prohibition on the 

carrying on of a business or profession, attempt 

an evaluation of its direct and immediate impact 

upon the fundamental rights of the citizens 

affected thereby and the larger public interest 

sought to be ensured in the light of the object 

sought to be achieved, the necessity to restrict 

the citizen's freedom, the inherent pernicious 

nature of the act prohibited or its capacity or 

tendency to be harmful to the general public, the 

possibility of achieving the object by imposing a 

less drastic restraint, and in the absence of 

exceptional situations such as the prevalence of a 

state of emergency – national or local – or the 

necessity to maintain essential supplies, or the 

necessity to stop activities inherently dangerous, 

the existence of a machinery to satisfy the 

administrative authority that no case for 

imposing the restriction is made out or that a less 


56


drastic restriction may ensure the object intended 

to be achieved.” (at page 161) 

26. In Dr. N. B. Khare v. State of Delhi, [1950] 

S.C.R. 519, a Constitution Bench also spoke of 

reasonable restrictions when it comes to 

procedure. It said: 

“While the reasonableness of the restrictions has to be 

considered with regard to the exercise of the right, it 

does not necessarily exclude from the consideration of 

the Court the question of reasonableness of the 

procedural part of the law. It is obvious that if the 

law prescribes five years externment or ten years 

externment, the question whether such period of 

externment is reasonable, being the substantive 

part, is necessarily for the consideration of the 

court under clause (5). Similarly, if the law 

provides the procedure under which the exercise 

of the right may be restricted, the same is also for 

the consideration of the Court, as it has to 

determine if the exercise of the right has been 

reasonably restricted.” (at page 524) (emphasis ours) 

27. It was argued by the learned Additional 

Solicitor General that a relaxed standard of 

reasonableness of restriction should apply regard 

being had to the fact that the medium of speech 

being the internet differs from other mediums on 

several grounds. To appreciate the width and 

scope of his submissions, we are setting out his 

written submission verbatim: 

“(i) the reach of print media is restricted to one 

state or at the most one country while 

internet has no boundaries and its reach is 

global; 

(ii) the recipient of the free speech and 

expression used in a print media can only be 

literate persons while internet can be 

accessed by literate and illiterate both since 

one click is needed to download an 

objectionable post or a video; 

(iii) In case of televisions serials [except live 

shows] and movies, there is a permitted 

‘pre-censorship' which ensures right of 

viewers not to receive any information 

which is dangerous to or not in conformity 

with the social interest. While in the case of 

an internet, no such pre-censorship is 

possible and each individual is publisher, 

printer, producer, director and broadcaster of 

the content without any statutory regulation; 

(iv) In case of print media or medium of 

television and films whatever is truly 

recorded can only be published or 

broadcasted/televised/ viewed. While in case 

of an internet, morphing of images, change 

of voices and many other technologically 

advance[d] methods to create serious 

potential social disorder can be applied. 

(v) By the medium of internet, rumors having a 

serious potential of creating a serious social 

disorder can be spread to trillions of people 

without any check which is not possible in 

case of other mediums. 

(vi) In case of mediums like print media, 

television and films, it is broadly not 

possible to invade privacy of unwilling 

persons. While in case of an internet, it is 

very easy to invade upon the privacy of any 

individual and thereby violating his right 

under Article 21 of the Constitution of India. 

(vii) By its very nature, in the mediums like 

newspaper, magazine, television or a movie, 

it is not possible to sexually harass someone, 

outrage the modesty of anyone, use 

unacceptable filthy language and evoke 

communal frenzy which would lead to 

serious social disorder. While in the case of 

an internet, it is easily possible to do so by a 

mere click of a button without any 

geographical limitations and almost in all 

cases while ensuring anonymity of the 

offender. 

(viii) By the very nature of the medium, the 

width and reach of internet is manifold as 

against newspaper and films. The said 

mediums have inbuilt limitations i.e. a 

person will have to buy / borrow a 

newspaper and / or will have to go to a 

theater to watch a movie. For television also 

one needs at least a room where a television 

is placed and can only watch those channels 

which he has subscribed and that too only at 

a time where it is being telecast. While in 

case of an internet a person abusing the 

internet, can commit an offence at any place 

at the time of his choice and maintaining his 

anonymity in almost all cases. 

57 



(ix) In case of other mediums, it is impossible to 

maintain anonymity as a result of which 

speech ideal opinions films having serious 

potential of creating a social disorder never 

gets generated since its origin is bound to be 

known. While in case of an internet mostly 

its abuse takes place under the garb of 

anonymity which can be unveiled only after 

thorough investigation. 

(x) In case of other mediums like newspapers, 

television or films, the approach is always 

institutionalized approach governed by 

industry specific ethical norms of self 

conduct. Each newspaper / magazine / 

movie production house / TV Channel will 

have their own institutionalized policies in 

house which would generally obviate any 

possibility of the medium being abused. As 

against that use of internet is solely based 

upon individualistic approach of each 

individual without any check, balance or 

regulatory ethical norms for exercising 

freedom of speech and expression under 

Article 19[ 1] [a]. 

(xi) In the era limited to print media and 

cinematograph; or even in case of 

publication through airwaves, the chances of 

abuse of freedom of expression was less due 

to inherent infrastructural and logistical 

constrains. In the case of said mediums, it 

was almost impossible for an individual to 

create and publish an abusive content and 

make it available to trillions of people. 

Whereas, in the present internet age the said 

infrastructural and logistical constrains have 

disappeared as any individual using even a 

smart mobile phone or a portable computer 

device can create and publish abusive 

material on [his] own, without seeking help 

of anyone else and make it available to 

trillions of people by just one click.” 

28. As stated, all the above factors may make a 

distinction between the print and other media as 

opposed to the internet and the legislature may 

well, therefore, provide for separate offences so 

far as free speech over the internet is concerned. 

There is, therefore, an intelligible differentia 

having a rational relation to the object sought to 

be achieved – that there can be creation of 

offences which are applied to free speech over the 

internet alone as opposed to other mediums of 

communication. Thus, an Article 14 challenge 

has been repelled by us on this ground later in 

this judgment. But we do not find anything in the 

features outlined by the learned Additional 

Solicitor General to relax the Court’s scrutiny of 

the curbing of the content of free speech over the 

internet. While it may be possible to narrowly 

draw a Section creating a new offence, such as 

Section 69A for instance, relatable only to speech 

over the internet, yet the validity of such a law 

will have to be tested on the touchstone of the 

tests already indicated above. 

29. In fact, this aspect was considered in Secretary 

Ministry of Information & Broadcasting, Government 

of India v. Cricket Association of Bengal, (1995) 2 

SCC 161, in para 37, where the following 

question was posed: 

“The next question which is required to be 

answered is whether there is any distinction 

between the freedom of the print media and that 

of the electronic media such as radio and 

television, and if so, whether it necessitates more 

restrictions on the latter media.” 

This question was answered in para 78 thus: 

“There is no doubt that since the airwaves/ 

frequencies are a public property and are also 

limited, they have to be used in the best interest 

of the society and this can be done either by a 

central authority by establishing its own 

broadcasting network or regulating the grant of 

licences to other agencies, including the private 

agencies. What is further, the electronic media is 

the most powerful media both because of its 

audiovisual impact and its widest reach covering 

the section of the society where the print media 

does not reach. The right to use the airwaves and 

the content of the programmes, therefore, needs 

regulation for balancing it and as well as to 

prevent monopoly of information and views 

relayed, which is a potential danger flowing from 

the concentration of the right to broadcast/ 

telecast in the hands either of a central agency or 

of few private affluent broadcasters. That is why 

the need to have a central agency representative 

of all sections of the society free from control 


58


both of the Government and the dominant 

influential sections of the society. This is not 

disputed. But to contend that on that account the 

restrictions to be imposed on the right under 

Article 19(1)(a) should be in addition to those 

permissible under Article 19(2) and dictated by 

the use of public resources in the best interests of 

the society at large, is to misconceive both the 

content of the freedom of speech and expression 

and the problems posed by the element of public 

property in, and the alleged scarcity of, the 

frequencies as well as by the wider reach of the 

media. If the right to freedom of speech and expression 

includes the right to disseminate information to as wide 

a section of the population as is possible, the access 

which enables the right to be so exercised is also an 

integral part of the said right. The wider range of 

circulation of information or its greater impact cannot 

restrict the content of the right nor can it justify its 

denial. The virtues of the electronic media cannot 

become its enemies. It may warrant a greater 

regulation over licensing and control and 

vigilance on the content of the programme 

telecast. However, this control can only be 

exercised within the framework of Article 19(2) 

and the dictates of public interests. To plead for 

other grounds is to plead for unconstitutional 

measures. It is further difficult to appreciate such 

contention on the part of the Government in this 

country when they have a complete control over 

the frequencies and the content of the 

programme to be telecast. They control the sole 

agency of telecasting. They are also armed with 

the provisions of Article 19(2) and the powers of 

pre-censorship under the Cinematograph Act and 

Rules. The only limitation on the said right is, 

therefore, the limitation of resources and the 

need to use them for the benefit of all. When, 

however, there are surplus or unlimited resources 

and the public interests so demand or in any case 

do not prevent telecasting, the validity of the 

argument based on limitation of resources 

disappears. It is true that to own a frequency for 

the purposes of broadcasting is a costly affair and 

even when there are surplus or unlimited 

frequencies, only the affluent few will own them 

and will be in a position to use it to subserve 

their own interest by manipulating news and 

views. That also poses a danger to the freedom of 

speech and expression of the have-nots by 

denying them the truthful information on all 

sides of an issue which is so necessary to form a 

sound view on any subject. That is why the 

doctrine of fairness has been evolved in the US 

in the context of the private broadcasters licensed 

to share the limited frequencies with the central 

agency like the FCC to regulate the programming. 

But this phenomenon occurs even in the case of 

the print media of all the countries. Hence the 

body like the Press Council of India which is 

empowered to enforce, however imperfectly, the 

right to reply. The print media further enjoys as 

in our country, freedom from pre-censorship 

unlike the electronic media.” 

Public Order 

30. In Article 19(2) (as it originally stood) this sub-head 

was conspicuously absent. Because of its absence, 

challenges made to an order made under Section 

7 of the Punjab Maintenance of Public Order Act 

and to an order made under Section 9 (1)(a) of the 

Madras Maintenance of Public Order Act were 

allowed in two early judgments by this Court. 

Thus in Romesh Thappar v. State of Madras, [1950] 

S.C.R. 594, this Court held that an order made 

under Section 9(1)(a) of the Madras Maintenance 

of Public Order Act (XXIII of 1949) was 

unconstitutional and void in that it could not be 

justified as a measure connected with security of 

the State. While dealing with the expression 

“public order”, this Court held that “public order” 

is an expression which signifies a state of 

tranquility which prevails amongst the members 

of a political society as a result of the internal 

regulations enforced by the Government which 

they have established. 

31. Similarly, in Brij Bhushan & Anr. v. State of 

Delhi, [1950] S.C.R. 605, an order made under 

Section 7 of the East Punjab Public Safety Act, 

1949, was held to be unconstitutional and void 

for the self-same reason. 

32. As an aftermath of these judgments, the 

Constitution First Amendment added the words 

“public order” to Article 19(2). 

33. In Superintendent, Central Prison, Fatehgarh v. 

Ram Manohar Lohia, [1960] 2 S.C.R. 821, this 

Court held that public order is synonymous with 

59 



public safety and tranquility; it is the absence of 

disorder involving breaches of local significance 

in contradistinction to national upheavals, such as 

revolution, civil strife, war, affecting the security 

of the State. This definition was further refined in 

Dr. Ram Manohar Lohia v. State of Bihar & Ors., 

[1966] 1 S.C.R. 709, where this Court held: 

“It will thus appear that just as "public order" in 

the rulings of this Court (earlier cited) was said 

to comprehend disorders of less gravity than 

those affecting "security of State", "law and order" 

also comprehends disorders of less gravity than 

those affecting "public order". One has to imagine 

three concentric circles. Law and order represents the 

largest circle within which is the next circle representing 

public order and the smallest circle represents security 

of State. It is then easy to see that an act may 

affect law and order but not public order just as 

an act may affect public order but not security of 

the State.” (at page 746) 

(emphasis ours) 

34. In Arun Ghosh v. State of West Bengal, [1970] 

3 S.C.R. 288, Ram Manohar Lohia’s case was 

referred to with approval in the following terms: 

“In Dr. Ram Manohar Lohia's case this Court 

pointed out the difference between maintenance 

of law and order and its disturbance and the 

maintenance of public order and its disturbance. 

Public order was said to embrace more of the 

community than law and order. Public order is 

the even tempo of the life of the community 

taking the country as a whole or even a specified 

locality. Disturbance of public order is to be 

distinguished, from acts directed against 

individuals which do not disturb the society to 

the extent of causing a general disturbance of 

public tranquility. It is the degree of disturbance 

and its effect upon the life of the community in a 

locality which determines whether the 

disturbance amounts only to a breach of law and 

order. Take for instance, a man stabs another. 

People may be shocked and even disturbed, but 

the life of the community keeps moving at an 

even tempo, however much one may dislike the 

act. Take another case of a town where there is 

communal tension. A man stabs a member of the 

other community. This is an act of a very 

different sort. Its implications are deeper and it 

affects the even tempo of life and public order is 

jeopardized because the repercussions of the act 

embrace large Sections of the community and 

incite them to make further breaches of the law 

and order and to subvert the public order. An act 

by itself is not determinant of its own gravity. In its 

quality it may not differ from another but in its 

potentiality it may be very different. Take the case of 

assault on girls. A guest at a hotel may kiss or 

make advances to half a dozen chamber maids. 

He may annoy them and also the management 

but he does not cause disturbance of public 

order. He may even have a fracas with the 

friends of one of the girls but even then it would 

be a case of breach of law and order only. Take 

another case of a man who molests women in 

lonely places. As a result of his activities girls 

going to colleges and schools are in constant 

danger and fear. Women going for their ordinary 

business are afraid of being waylaid and 

assaulted. The activity of this man in its essential 

quality is not different from the act of the other 

man but in its potentiality and in its effect upon 

the public tranquility there is a vast difference. 

The act of the man who molests the girls in 

lonely places causes a disturbance in the even 

tempo of living which is the first requirement of 

public order. He disturbs the society and the 

community. His act makes all the women 

apprehensive of their honour and he can be said 

to be causing disturbance of public order and not 

merely committing individual actions which may 

be taken note of by the criminal prosecution 

agencies. It means therefore that the question 

whether a man has only committed a breach of law and 

order or has acted in a manner likely to cause a 

disturbance of the public order is a question of degree 

and the extent of the reach of the act upon the society. 

The French distinguish law and order and public 

order by designating the latter as order publique. 

The latter expression has been recognised as 

meaning something more than ordinary 

maintenance of law and order. Justice 

Ramaswami in Writ Petition No. 179 of 1968 

drew a line of demarcation between the serious 

and aggravated forms of breaches of public order 

which affect the community or endanger the 

public interest at large from minor breaches of 

peace which do not affect the public at large. He 

drew an analogy between public and private 

crimes. The analogy is useful but not to be 

pushed too far. A large number of acts directed 

against persons or individuals may total up into a 


60


breach of public order. In Dr. Ram Manohar 

Lohia's case examples were given by Sarkar, and 

Hidayatullah, JJ. They show how similar acts in 

different contexts affect differently law and order 

on the one hand and public order on the other. It 

is always a question of degree of the harm and its effect 

upon the community. The question to ask is: Does it 

lead to disturbance of the current of life of the 

community so as to amount to a disturbance of the 

public order or does it affect merely an individual 

leaving the tranquility of the society undisturbed? This 

question has to be faced in every case on facts. 

There is no formula by which one case can be 

distinguished from another.” (pp. 290-291) (emphases ours) 

35. This decision lays down the test that has to be 

formulated in all these cases. We have to ask ourselves 

the question: does a particular act lead to disturbance of 

the current life of the community or does it merely 

affect an individual leaving the tranquility of society 

undisturbed? Going by this test, it is clear that 

Section 66A is intended to punish any person 

who uses the internet to disseminate any 

information that falls within the sub-clauses of 

Section 66A. It will be immediately noticed that 

the recipient of the written word that is sent by 

the person who is accused of the offence is not of 

any importance so far as this Section is 

concerned. (Save and except where under subclause 

(c) the addressee or recipient is deceived 

or misled about the origin of a particular 

message.) It is clear, therefore, that the 

information that is disseminated may be to one 

individual or several individuals. The Section 

makes no distinction between mass dissemination 

and dissemination to one person. Further, the 

Section does not require that such message 

should have a clear tendency to disrupt public 

order. Such message need not have any potential 

which could disturb the community at large. The 

nexus between the message and action that may be 

taken based on the message is conspicuously absent – 

there is no ingredient in this offence of inciting anybody 

to do anything which a reasonable man would then say 

would have the tendency of being an immediate threat 

to public safety or tranquility. On all these counts, it 

is clear that the Section has no proximate relationship 

to public order whatsoever. The example of a guest 

at a hotel ‘annoying’ girls is telling – this Court 

has held that mere ‘annoyance’ need not cause 

disturbance of public order. Under Section 66A, 

the offence is complete by sending a message for 

the purpose of causing annoyance, either 

‘persistently’ or otherwise without in any manner 

impacting public order. 

Clear and present danger – tendency to affect: 

36. It will be remembered that Justice Holmes in 

Schenck v. United States, 63 L. Ed. 470, enunciated 

the clear and present danger test as follows: 

“…The most stringent protection of free speech would 

not protect a man in falsely shouting fire in a theatre 

and causing a panic. It does not even protect a man 

from an injunction against uttering words that may have 

all the effect of force. Gompers v. Buck's Stove & 

Range Co., 221 U.S. 418, 439, 31 Sup. Ct. 492, 

55 L. ed. 797, 34 L.R.A. (N.S.) 874. The question 

in every case is whether the words used are used in such 

circumstances and are of such a nature as to create a 

clear and present danger that they will bring about 

the substantive evils that Congress has a right to 

prevent. It is a question of proximity and 

degree.” (At page 473, 474) 

(emphases ours) 

37. This was further refined in Abrams v. Unites 

States, 250 U.S. 616 (1919), this time in a 

Holmesian dissent, to be clear and imminent danger. 

However, in most of the subsequent judgments of 

the U.S. Supreme Court, the test has been 

understood to mean to be “clear and present 

danger”. The test of “clear and present danger” 

has been used by the U.S. Supreme Court in 

many varying situations and has been adjusted 

according to varying fact situations. It appears to 

have been repeatedly applied, see – Terminiello v. 

City of Chicago 93 L.Ed. 1131 (1949) at page 1134- 

1135, Brandenburg v. Ohio 23 L.Ed. 2d 430 (1969) at 

434-435 & 436, Virginia v. Black 155 L.Ed. 2d 535 

(2003) at page 551, 552 and 553. 4 

4 In its present form the clear and present danger test has 

been reformulated to say that: 

“The constitutional guarantees of free speech and free press 

do not permit a State to forbid or proscribe advocacy of 

the use of force or of law violation except where such 

advocacy is directed to inciting or producing imminent 

lawless action and is likely to incite or produce such 

action.” 


Interestingly, the US Courts have gone on to make a 

further refinement. The State may ban what is called a 

“true threat”. 

61 



38. We have echoes of it in our law as well [in] 

S. Rangarajan v. P. Jagjivan & Ors., (1989) 2 SCC 

574 at paragraph 45: 

“45. The problem of defining the area of freedom 

of expression when it appears to conflict with the 

various social interests enumerated under Article 

19(2) may briefly be touched upon here. There 

does indeed have to be a compromise between 

the interest of freedom of expression and special 

interests. But we cannot simply balance the two 

interests as if they are of equal weight. Our 

commitment of freedom of expression demands that it 

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 interest. In other words, the expression 

should be inseparably locked up with the action 

contemplated like the equivalent of a "spark in a 

powder keg".” 


39. This Court has used the expression “tendency” 

to a particular act. Thus, in State of Bihar v. 

Shailabala Devi, [1952] S.C.R. 654, an early 

decision of this Court said that an article, in order 

to be banned must have a tendency to excite 

persons to acts of violence (at page 662-663). The 

test laid down in the said decision was that the 

article should be considered as a whole in a fair 

free liberal spirit and then it must be decided 

what effect it would have on the mind of a 

reasonable reader. (at pages 664-665) 

“"True threats" encompass those statements where the 

speaker means to communicate a serious expression of an 

intent to commit an act of unlawful violence to a 

particular individual or group of individuals.” 

“The speaker need not actually intend to carry out the 

threat. Rather, a prohibition on true threats protects 

individuals from the fear of violence and from the 

disruption that fear engenders, in addition to protecting 

people from the possibility that the threatened violence 

will occur. Intimidation in the constitutionally 

proscribable sense of the word is a type of true threat, 

where a speaker directs a threat to a person or group of 

persons with the intent of placing the victim in fear of 

bodily harm or death.” 

See Virginia v. Black (Supra) and Watts v. United States 

22 L. Ed. 2d. 664 at 667. 

40. In Ramji Lal Modi v. The State of U.P., [1957] 

S.C.R. 860 at page 867, this court upheld Section 

295A of the Indian Penal Code only because it was read 

down to mean that aggravated forms of insults to 

religion must have a tendency to disrupt public order. 

Similarly, in Kedar Nath Singh v. State of Bihar, 

1962 Supp. (2) S.C.R. 769, Section 124A of the 

Indian Penal Code was upheld by construing it 

narrowly and stating that the offence would only be 

complete if the words complained of have a tendency of 

creating public disorder by violence. It was added that 

merely creating disaffection or creating feelings of 

enmity in certain people was not good enough or else it 

would violate the fundamental right of free speech 

under Article 19(1)(a). Again, in Dr. Ramesh 

Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & 

Ors., 1996 (1) SCC 130, Section 123 (3A) of the 

Representation of People Act was upheld only if 

the enmity or hatred that was spoken about in the 

Section would tend to create immediate public disorder 

and not otherwise. 


41. Viewed at either by the standpoint of the clear and 

present danger test or the tendency to create public 

disorder, Section 66A would not pass muster as it has 

no element of any tendency to create public 

disorder which ought to be an essential ingredient 

of the offence which it creates. 

DEFAMATION 

42. Defamation is defined in Section 499 of the 

Penal Code as follows: 

“499. Defamation. – Whoever, by words either 

spoken or intended to be read, or by signs or by 

visible representations, makes or publishes any 

imputation concerning any person intending to 

harm, or knowing or having reason to believe 

that such imputation will harm, the reputation of 

such person, is said, except in the cases 

hereinafter excepted, to defame that person. 

Explanation 1. – It may amount to defamation to 

impute anything to a deceased person, if the 

imputation would harm the reputation of that 

person if living, and is intended to be hurtful to 

the feelings of his family or other near relatives. 

Explanation 2. – It may amount to defamation to 

make an imputation concerning a company or an 

association or collection of persons as such. 


62


Explanation 3. – An imputation in the form of an 

alternative or expressed ironically, may amount 

to defamation. 

Explanation 4. – No imputation is said to harm a 

person's reputation, unless that imputation 

directly or indirectly, in the estimation of others, 

lowers the moral or intellectual character of that 

person, or lowers the character of that person in 

respect of his caste or of his calling, or lowers 

the credit of that person, or causes it to be 

believed that the body of that person is in a 

loathsome state, or in a state generally 

considered as disgraceful.” 

43. It will be noticed that for something to be 

defamatory, injury to reputation is a basic 

ingredient. Section 66A does not concern itself with 

injury to reputation. Something may be grossly 

offensive and may annoy or be inconvenient to 

somebody without at all affecting his reputation. 

It is clear therefore that the Section is not aimed 

at defamatory statements at all. 

Incitement to an offence: 

44. Equally, Section 66A has no proximate connection 

with incitement to commit an offence. Firstly, the 

information disseminated over the internet need not be 

information which “incites” anybody at all. Written 

words may be sent that may be purely in the 

realm of “discussion” or “advocacy” of a 

“particular point of view”. Further, the mere 

causing of annoyance, inconvenience, danger etc., or 

being grossly offensive or having a menacing character 

are not offences under the Penal Code at all. They may 

be ingredients of certain offences under the Penal 

Code but are not offences in themselves. For 

these reasons, Section 66A has nothing to do with 

“incitement to an offence”. As Section 66A severely 

curtails information that may be sent on the 

internet based on whether it is grossly offensive, 

annoying, inconvenient, etc. and being unrelated to 

any of the eight subject matters under Article 19(2) 

must, therefore, fall foul of Article 19(1)(a), and 

not being saved under Article 19(2), is declared as 

unconstitutional. 


Decency or Morality 

45. This Court in Ranjit Udeshi v. State of 

Maharashtra, [1965] 1 S.C.R. 65, took a rather 

restrictive view of what would pass muster as not 

being obscene. The Court followed the test laid 

down in the old English judgment in Hicklin’s 

case which was whether the tendency of the 

matter charged as obscene is to deprave and 

corrupt those whose minds are open to such 

immoral influences and into whose hands a 

publication of this sort may fall. Great strides 

have been made since this decision in the UK, 

United States as well as in our country. Thus, in 

Director General, Directorate General of 

Doordarshan v. Anand Patwardhan, 2006 (8) SCC 

433, this Court noticed the law in the United 

States and said that a material may be regarded as 

obscene if the average person applying contemporary 

community standards would find that the subject 

matter taken as a whole appeals to the prurient interest 

and that taken as a whole it otherwise lacks serious 

literary artistic, political, educational or scientific value 

(see Para 31). 


46. In a recent judgment of this Court, Aveek 

Sarkar v. State of West Bengal, 2014 (4) SCC 257 

[= (2014) 1 LAW ISC-73], this Court referred to 

English, U.S. and Canadian judgments and 

moved away from the Hicklin test and applied the 

contemporary community standards test. 

47. What has been said with regard to public 

order and incitement to an offence equally applies 

here. Section 66A cannot possibly be said to create an 

offence which falls within the expression ‘decency’ or 

‘morality’ in that what may be grossly offensive or 

annoying under the Section need not be obscene at all – 

in fact the word ‘obscene’ is conspicuous by its absence 

in Section 66A. 


48. However, the learned Additional Solicitor 

General asked us to read into Section 66A each of 

the subject matters contained in Article 19(2) in 

order to save the constitutionality of the 

provision. We are afraid that such an exercise is 

not possible for the simple reason that when the 

legislature intended to do so, it provided for some 

of the subject matters contained in Article 19(2) 

in Section 69A. We would be doing complete 

violence to the language of Section 66A if we 

were to read into it something that was never 

intended to be read into it. Further, he argued that 

63 


ISC-150 Shreya Singhal v. Union of India [IND-SC] (2015) 1 LAW 

the statute should be made workable, and the 

following should be read into Section 66A: 

“(i) Information which would appear highly 

abusive, insulting, pejorative, offensive by 

reasonable person in general, judged by the 

standards of an open and just multi-caste, 

multi-religious, multi racial society; 

- Director of Public Prosecutions v. Collins – 

(2006) 1 WLR 2223 @ para 9 and 21 

- Connolly v. Director of Public Prosecutions 

reported in [2008] 1 W.L.R. 276/2007 [1] All 

ER 1012 

- House of Lords Select Committee 1 st Report 

of Session 2014-2015 on Communications 

titled as “Social Media And Criminal 

Offences” @ p. 260 of compilation of 

judgments Vol I, Part B; 

(ii) Information which is directed to incite or 

can produce imminent lawless action 

Brandenburg v. Ohio 395 U.S. 444 (1969); 

(iii) Information which may constitute credible 

threats of violence to the person or damage; 

(iv) Information which stirs the public to 

anger, invites violent disputes brings about 

condition of violent unrest and disturbances; 

Terminiello v. Chicago 337 US 1 (1949); 

(v) Information which advocates or teaches the 

duty, necessity or proprietary of violence as a 

means of accomplishing political, social or 

religious reform and/or justifies 

commissioning of violent acts with an intent to 

exemplify glorify such violent means to 

accomplish political, social, economical or 

religious reforms [Whitney vs. California 274 US 357]; 

(vi) Information which contains fighting or 

abusive material, Chaplinsky v. New Hampshire, 

315 U.S. 568 (1942); 

(vii) Information which promotes hate speech 

i.e. 

(a) Information which propagates hatred towards 

individual or a groups, on the basis of race, 

religion, religion, casteism, ethnicity, 

(b) Information which is intended to show the 

supremacy of one particular 

religion/race/caste by making disparaging, 

abusive and/or highly inflammatory remarks 

against religion/race/caste. 

(c) Information depicting religious deities, holy 

persons, holy symbols, holy books which are 

created to insult or to show contempt or lack 

of reverence for such religious deities, holy 

persons, holy symbols, holy books or towards 

something which is considered sacred or 

inviolable. 

(viii) Satirical or iconoclastic cartoon and 

caricature which fails the test laid down in 

Hustler Magazine, Inc. v. Falwell 485 U.S. 46 

(1988); 

(ix) Information which glorifies terrorism and 

use of drugs; 

(x) Information which infringes right of 

privacy of the others and includes acts of cyber 

bullying, harassment or stalking. 

(xi) Information which is obscene and has the 

tendency to arouse feeling or revealing an 

overt sexual desire and should be suggestive of 

deprave mind and designed to excite sexual 

passion in persons who are likely to see it. 

Aveek Sarkar and Anr. vs. State of West Bengal and 

Ors. (2014) 4 SCC 257 [= (2014) 1 LAW ISC-73]; 

(xii) Context and background test of obscenity. 

Information which is posted in such a context 

or background which has a consequential 

effect of outraging the modesty of the pictured 

individual. Aveek Sarkar and Anr. vs. State of West 

Bengal and Ors. (2014) 4 SCC 257 [= (2014) 1 LAW 

ISC-73].” 

49. What the learned Additional Solicitor General is 

asking us to do is not to read down Section 66A – he is 

asking for a wholesale substitution of the provision 

which is obviously not possible. 


VAGUENESS 

50. Counsel for the petitioners argued that the 

language used in Section 66A is so vague that 

neither would an accused person be put on notice 

as to what exactly is the offence which has been 

committed nor would the authorities 

administering the Section be clear as to on which 

side of a clearly drawn line a particular 

communication will fall. 

51. We were given Collin’s dictionary, which 

defined most of the terms used in Section 66A, as 

follows: 


64

(2015) 1 LAW Shreya Singhal v. Union of India [IND-SC] ISC-151 

“Offensive:- 

1. Unpleasant or disgusting, as to the senses 

2. Causing anger or annoyance; insulting 

3. For the purpose of attack rather than defence. 

Menace:- 

1. To threaten with violence, danger, etc. 

2. A threat or the act of threatening 

3. Something menacing; a source of danger 

4. A nuisance 

Annoy:- 

1. To irritate or displease 

2. To harass with repeated attacks 

Annoyance 

1. The feeling of being annoyed 

2. The act of annoying. 

Inconvenience 

1. The state of quality of being inconvenient 

2. Something inconvenient; a hindrance, 

trouble, or difficulty 

Danger:- 

1. The state of being vulnerable to injury, 

loss, or evil risk 

2. A person or a thing that may cause injury 

pain etc. 

Obstruct:- 

1. To block (a road, a passageway, etc.) with 

an obstacle 

2. To make (progress or activity) difficult. 

3. To impede or block a clear view of. 

Obstruction:- a person or a thing that obstructs. 

Insult:- 

1. To treat, mention, or speak to rudely; 

offend; affront 

2. To assault; attack 

3. An offensive or contemptuous remark or 

action; affront; slight 

4. A person or thing producing the effect of 

an affront = some television is an insult to 

intelligence 

5. An injury or trauma.” 

52. The U.S. Supreme Court has repeatedly held 

in a series of judgments that where no reasonable 

standards are laid down to define guilt in a Section 

which creates an offence, and where no clear guidance is 

given to either law abiding citizens or to authorities and 

courts, a Section which creates an offence and which is 

vague must be struck down as being arbitrary and 

unreasonable. Thus, in Musser v. Utah, 92 L. Ed. 

562, a Utah statute which outlawed conspiracy to 

commit acts injurious to public morals was struck 

down. 


53. In Winters v. People of State of New York, 92 L. 

Ed. 840, a New York Penal Law read as follows:- 

“1141. Obscene prints and articles 

1. A person……who, 

2. Prints, utters, publishes, sells, lends, gives 

away, distributes or shows, or has in his 

possession with intent to sell, lend, give 

away, distribute or show, or otherwise 

offers for sale, loan, gift or distribution, 

any book, pamphlet, magazine, newspaper 

or other printed paper devoted to the 

publication, and principally made up of 

criminal news, police reports, or accounts 

of criminal deeds, or pictures, or stories of 

deeds of bloodshed, lust or crime; 

…………………………………………… 

'Is guilty of a misdemeanor, …'.” (at page 846) 

The court in striking down the said statute held: 

“The impossibility of defining the precise line 

between permissible uncertainty in statutes 

caused by describing crimes by words well 

understood through long use in the criminal law 

– obscene, lewd, lascivious, filthy, indecent or 

disgusting – and the unconstitutional vagueness 

that leaves a person uncertain as to the kind of 

prohibited conduct – massing stories to incite 

crime – has resulted in three arguments of this 

case in this Court. The legislative bodies in 

draftsmanship obviously have the same difficulty 

as do the judicial in interpretation. Nevertheless 

despite the difficulties, courts must do their best 

to determine whether or not the vagueness is of 

such a character 'that men of common 

intelligence must necessarily guess at its 

meaning.' Connally v. General Constr. Co., 269 

U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. 

The entire text of the statute or the subjects dealt 

with may furnish an adequate standard. The 

present case as to a vague statute abridging free 

speech involves the circulation of only vulgar 

magazines. The next may call for decision as to 

65 



free expression of political views in the light of a 

statute intended to punish subversive activities. 

The subsection of the New York Penal Law, as 

now interpreted by the Court of Appeals 

prohibits distribution of a magazine principally 

made up of criminal news or stories of deeds of 

bloodshed, or lust, so massed as to become 

vehicles for inciting violent and depraved crimes 

against the person. But even considering the 

gloss put upon the literal meaning by the Court 

of Appeals' restriction of the statute to 

collections of stories 'so massed as to become 

vehicles for inciting violent and depraved crimes 

against the person * * * not necessarily * * * 

sexual passion,' we find the specification of 

publications, prohibited from distribution, too 

uncertain and indefinite to justify the conviction 

of this petitioner. Even though all detective tales 

and treatises on criminology are not forbidden, 

and though publications made up of criminal 

deeds not characterized by bloodshed or lust are 

omitted from the interpretation of the Court of 

Appeals, we think fair use of collections of pictures 

and stories would be interdicted because of the utter 

impossibility of the actor or the trier to know where this 

new standard of guilt would draw the line between the 

allowable and the forbidden publications. No intent or 

purpose is required – no indecency or obscenity 

in any sense heretofore known to the law. 'So 

massed as to incite to crime' can become 

meaningful only by concrete instances. This one 

example is not enough. The clause proposes to 

punish the printing and circulation of 

publications that courts or juries may think 

influence generally persons to commit crime of 

violence against the person. No conspiracy to 

commit a crime is required. See Musser v. State 

of Utah, 68 S.Ct. 397, this Term. It is not an 

effective notice of new crime. The clause has no 

technical or common law meaning. Nor can light 

as to the meaning be gained from the section as a whole 

or the Article of the Penal Law under which it appears. 

As said in the Cohen Grocery Co. case, supra, 

255 U.S. at page 89, 41 S.Ct. at page 300, 65 

L.Ed. 516, 14 A.L.R. 1045: 

'It leaves open, therefore, the widest 

conceivable inquiry, the scope of which no 

one can foresee and the result of which no 

one can foreshadow or adequately guard 

against.' 

The statute as construed by the Court of Appeals 

does not limit punishment to the indecent and 

obscene, as formerly understood. When stories of 

deeds of bloodshed, such as many in the accused 

magazines, are massed so as to incite to violent 

crimes, the statute is violated. it does not seem to 

us that an honest distributor of publications could 

know when he might be held to have ignored 

such a prohibition. Collections of tales of war 

horrors, otherwise unexceptionable, might well 

be found to be 'massed' so as to become 'vehicles 

for inciting violent and depraved crimes.' Where a 

statute is so vague as to make criminal an innocent act, a 

conviction under it cannot be sustained. Herndon v. 

Lowry, 301 U.S. 242, 259, 57 S.Ct. 732, 739, 81 

L.Ed. 1066.” (at page 851-852) (emphases ours) 

54. In Burstyn v. Wilson, 96 L. Ed. 1098, 

sacrilegious writings and utterances were 

outlawed. Here again, the U.S. Supreme Court 

stepped in to strike down the offending Section 

stating: 

“It is not a sufficient answer to say that 'sacrilegious' is 

definite, because all subjects that in any way might be 

interpreted as offending the religious beliefs of any one 

of the 300 sects of the United States are banned in New 

York. To allow such vague, undefinable powers of 

censorship to be exercised is bound to have stultifying 

consequences on the creative process of literature and 

art – for the films are derived largely from 

literature. History does not encourage reliance on 

the wisdom and moderation of the censor as a 

safeguard in the exercise of such drastic power 

over the minds of men. We not only do not know but 

cannot know what is condemnable by 'sacrilegious'. 

And if we cannot tell, how are those to be governed by 

the statute to tell?” (at page 1121) (emphases ours) 

55. In City of Chicago v. Morales et al, 527 U.S. 41 

(1999), a Chicago Gang Congregation Ordinance 

prohibited criminal street gang members from 

loitering with one another or with other persons 

in any public place for no apparent purpose. The 

Court referred to an earlier judgment in United 

States v. Reese, 92 U.S. 214 (1875) at 221, in 

which it was stated that the Constitution does not 

permit a legislature to set a net large enough to catch all 

possible offenders and leave it to the Court to step in 

and say who could be rightfully detained and who 

should be set at liberty. It was held that the broad 

sweep of the Ordinance violated the requirement 


66


that a legislature needs to meet: to establish minimum 

guidelines to govern law enforcement. As the 

impugned Ordinance did not have any such 

guidelines, a substantial amount of innocent 

conduct would also be brought within its net, 

leading to its unconstitutionality. (emphases ours) 

56. It was further held that a penal law is void for 

vagueness if it fails to define the criminal offence with 

sufficient definiteness. Ordinary people should be able 

to understand what conduct is prohibited and what is 

permitted. Also, those who administer the law 

must know what offence has been committed so 

that arbitrary and discriminatory enforcement of 

the law does not take place. 


57. Similarly, in Grayned v. City of Rockford, 33 

L.Ed. 2d. 222, the State of Illinois provided in an 

anti-noise ordinance as follows: 

“'(N)o person, while on public or private grounds 

adjacent to any building in which a school or any 

class thereof is in session, shall willfully make or 

assist in the making of any noise or diversion 

which disturbs or tends to disturb the peace or 

good order of such school session or class 

thereof.…' Code of Ordinances, c. 28, § 19.2(a).” 

The law on the subject of vagueness was clearly 

stated thus: 

“It is a basic principle of due process that an enactment 

is void for vagueness if its prohibitions are not clearly 

defined. Vague laws offend several important 

values. First, because we assume that man is free 

to steer between lawful and unlawful conduct, we 

insist that laws give the person of ordinary intelligence a 

reasonable opportunity to know what is prohibited, so 

that he may act accordingly. Vague laws may trap 

the innocent by not providing fair warning. 

Second, if arbitrary and discriminatory enforcement is 

to be prevented, laws must provide explicit standards for 

those who apply them. A vague law impermissibly 

delegates basic policy matters to policemen, 

judges, and juries for resolution on an ad hoc and 

subjective basis, with the attendant dangers of 

arbitrary and discriminatory application. Third, 

but related, where a vague statute 'abut(s) upon 

sensitive areas of basic First Amendment freedoms, it 

‘operates to inhibit the exercise of (those) freedoms.’ 

Uncertain meanings inevitably lead citizens to 

"steer far wider of the unlawful zone' … than if 

the boundaries of the forbidden areas were 

clearly marked.'”(at page 227-228) (emphases ours) 

58. The anti noise ordinance was upheld on facts 

in that case because it fixed the time at which 

noise disrupts school activity – while the school 

is in session – and at a fixed place – ‘adjacent’ to 

the school. 

59. Secondly, there had to be demonstrated a 

causality between disturbance that occurs and the noise 

or diversion. Thirdly, acts have to be willfully done. It is 

important to notice that the Supreme Court specifically 

held that “undesirables” or their “annoying conduct” 

may not be punished. It is only on these limited 

grounds that the said Ordinance was considered 

not to be impermissibly vague. (emphases ours) 

60. In Reno, Attorney General of the United States, 

et al. v. American Civil Liberties Union et al., 521 

U.S. 844 (1997), two provisions of the 

Communications Decency Act of 1996 which sought to 

protect minors from harmful material on the internet 

were adjudged unconstitutional. This judgment is a 

little important for two basic reasons – that it 

deals with a penal offence created for persons 

who use the internet as also for the reason that the 

statute which was adjudged unconstitutional uses 

the expression “patently offensive” which comes 

extremely close to the expression “grossly 

offensive” used by the impugned Section 66A. 

Section 223(d), which was adjudged 

unconstitutional, is set out herein-below:- 

“223 (d) Whoever – 

“(1) in interstate or foreign communications 

knowingly – 

(A) uses an interactive computer service to 

send to a specific person or persons under 

18 years of age, or 

(B) uses any interactive computer service to 

display in a manner available to a person 

under 18 years of age, “any comment, 

request, suggestion, proposal, image, or 

other communication that, in context, 

depicts or describes, in terms patently 

offensive as measured by contemporary 

community standards, sexual or excretory 

activities or organs, regardless of whether 

the user of such service placed the call or 

initiated the communication; or 

67 



(2) knowingly permits any telecommunications 

facility under such person's control to be used 

for an activity prohibited by paragraph (1) with 

the intent that it be used for such activity, 

shall be fined under Title 18, or imprisoned not 

more than two years, or both.” (at page 860) 

Interestingly, the District Court Judge writing of 

the internet said: 

“[i]t is no exaggeration to conclude that the 

Internet has achieved, and continues to achieve, 

the most participatory marketplace of mass 

speech that this country – and indeed the world – 

as yet seen. The plaintiffs in these actions 

correctly describe the ‘democratizing’ effects of 

Internet communication: individual citizens of 

limited means can speak to a worldwide 

audience on issues of concern to them. 

Federalists and Anti-federalists may debate the 

structure of their government nightly, but these 

debates occur in newsgroups or chat rooms 

rather than in pamphlets. Modern-day Luthers 

still post their theses, but to electronic bulletins 

boards rather than the door of the Wittenberg 

Schlosskirche. More mundane (but from a 

constitutional perspective, equally important) 

dialogue occurs between aspiring artists, or 

French cooks, or dog lovers, or fly fishermen.” 

929 F. Supp. At 881. (at page 425) 

61. The Supreme Court held that the impugned 

statute lacked the precision that the first amendment 

required when a statute regulates the content of speech. 

In order to deny minors access to potentially 

harmful speech, the impugned Act effectively 

suppresses a large amount of speech that adults 

have a constitutional right to receive and to 

address to one another. 


62. Such a burden on adult speech is unacceptable 

if less restrictive alternatives would be as effective 

in achieving the legitimate purpose that the 

statute was enacted to serve. It was held that the 

general undefined term “patently offensive” covers 

large amounts of non-pornographic material with 

serious educational or other value and was both vague 

and over broad. It was, thus, held that the impugned 

statute was not narrowly tailored and would fall foul of 

the first amendment. 


63. In Federal Communications Commission v. Fox 

Television Stations, 132 S.Ct. 2307, it was held: 

“A fundamental principle in our legal system is 

that laws which regulate persons or entities must 

give fair notice of conduct that is forbidden or 

required. See Connally v. General Constr. Co., 

269 U.S. 385, 391 (1926) (“[A] statute which 

either forbids or requires the doing of an act in 

terms so vague that men of common intelligence 

must necessarily guess at its meaning and differ 

as to its application, violates the first essential of 

due process of law”); Papachristou v. 

Jacksonville, 405 U.S. 156, 162 (1972) (“Living 

under a rule of law entails various suppositions, 

one of which is that '[all persons] are entitled to 

be informed as to what the State commands or 

forbids'” (quoting Lanzetta v. New Jersey, 306 

U.S. 451, 453 (1939) (alteration in original))). 

This requirement of clarity in regulation is essential to 

the protections provided by the Due Process Clause of 

the Fifth Amendment. See United States v. 

Williams, 553 U.S. 285, 304 (2008). It requires the 

invalidation of laws that are impermissibly vague. A 

conviction or punishment fails to comply with 

due process if the statute or regulation under 

which it is obtained “fails to provide a person of 

ordinary intelligence fair notice of what is 

prohibited, or is so standardless that it authorizes 

or encourages seriously discriminatory 

enforcement.” Ibid. As this Court has explained, 

a regulation is not vague because it may at times 

be difficult to prove an incriminating fact but 

rather because it is unclear as to what fact must 

be proved. See id., at 306. 


Even when speech is not at issue, the void for 

vagueness doctrine addresses at least two 

connected but discrete due process concerns: 

first, that regulated parties should know what is 

required of them so they may act accordingly; 

second, precision and guidance are necessary so 

that those enforcing the law do not act in an 

arbitrary or discriminatory way. See Grayned v. 

City of Rockford, 408 U.S. 104, 108-109 (1972). 

When speech is involved, rigorous adherence to 

those requirements is necessary to ensure that 

ambiguity does not chill protected speech.” (at p. 2317) 

64. Coming to this Court’s judgments, in State of 

Madhya Pradesh v. Baldeo Prasad, [1961] 1 S.C.R. 

970, an inclusive definition of the word “goonda” 

was held to be vague and the offence created by 

Section 4A of the Goondas Act was, therefore, 


68


violative of Article 19(1)(d) and (e) of the 

Constitution. It was stated: 

“Incidentally it would also be relevant to point 

out that the definition of the word "goonda" 

affords no assistance in deciding which citizen 

can be put under that category. It is an inclusive 

definition and it does not indicate which tests 

have to be applied in deciding whether a person 

falls in the first part of the definition. Recourse to 

the dictionary meaning of the word would hardly 

be of any assistance in this matter. After all it 

must be borne in mind that the Act authorises the 

District Magistrate to deprive a citizen of his 

fundamental right under Art. 19(1)(d) and (e), 

and though the object of the Act and its purpose 

would undoubtedly attract the provisions of Art. 

19(5) care must always be taken in passing such 

acts that they provide sufficient safeguards 

against casual, capricious or even malicious 

exercise of the powers conferred by them. It is 

well known that the relevant provisions of the 

Act are initially put in motion against a person at 

a lower level than the District magistrate, and so 

it is always necessary that sufficient safeguards 

should be provided by the Act to protect the 

fundamental rights of innocent citizens and to 

save them from unnecessary harassment. That is 

why we think the definition of the word 

"goonda" should have given necessary assistance 

to the District Magistrate in deciding whether a 

particular citizen falls under the category of 

goonda or not; that is another infirmity in the 

Act. As we have already pointed out s. 4-A 

suffers from the same infirmities as s. 4. 

Having regard to the two infirmities in Sections 

4, 4-A respectively we do not think it would be 

possible to accede to the argument of the 

Learned Advocate-General that the operative 

portion of the Act can fall under Art. 19(5) of the 

Constitution. The person against whom action 

can be taken under the Act is not entitled to 

know the source of the information received by 

the District Magistrate; he is only told about his 

prejudicial activities on which the satisfaction of 

the District Magistrate is based that action should 

be taken against him under s.4 or s. 4-A. In such 

a case it is absolutely essential that the Act must 

clearly indicate by a proper definition or 

otherwise when and under what circumstances a 

person can be called a goonda, and it must 

impose an obligation on the District Magistrate 

to apply his mind to the question as to whether 

the person against whom complaints are received 

is such a goonda or not. It has been urged before 

us that such an obligation is implicit in Sections 

4 and 4-A. We are, however, not impressed by 

this argument. Where a statute empowers the specified 

authorities to take preventive action against the citizens 

it is essential that it should expressly make it a part of 

the duty of the said authorities to satisfy themselves 

about the existence of what the statute regards as 

conditions precedent to the exercise of the said 

authority. If the statute is silent in respect of one 

of such conditions precedent it undoubtedly 

constitutes a serious infirmity which would 

inevitably take it out of the provisions of Art. 

19(5). The result of this infirmity is that it has left to 

the unguided and unfettered discretion of the authority 

concerned to treat any citizen as a goonda. In other 

words, the restrictions which it allows to be imposed on 

the exercise of the fundamental right of a citizen 

guaranteed by Art. 19(1)(d) and (e) must in the 

circumstances be held to be unreasonable. That is the 

view taken by the High court and we see no 

reason to differ from it.” (at pp. 979, 980) (emphases ours) 

65. At one time this Court seemed to suggest that 

the doctrine of vagueness was no part of the 

Constitutional Law of India. That was dispelled 

in no uncertain terms in K.A. Abbas v. The Union 

of India & Another, [1971] 2 S.C.R. 446: 

“This brings us to the manner of the exercise of 

control and restriction by the directions. Here the 

argument is that most of the regulations are 

vague and further that they leave no scope for the 

exercise of creative genius in the field of art. 

This poses the first question before us whether the 

'void for vagueness' doctrine is applicable. Reliance in 

this connection is placed on Municipal 

Committee Amritsar and Anr. v. The State of 

Rajasthan. In that case a Division Bench of this 

Court lays down that an Indian Act cannot be 

declared invalid on the ground that it violates the 

due process clause or that it is vague……” (at 

page 469) 

“These observations which are clearly obiter are 

apt to be too generally applied and need to be 

explained. While it is true that the principles 

evolved by the Supreme Court of the United 

States of America in the application of the 

69 



Fourteenth Amendment were eschewed in our 

Constitution and instead the limits of restrictions 

on each fundamental right were indicated in the 

clauses that follow the first clause of the 

nineteenth article, it cannot be said as an absolute 

principle that no law will be considered bad for sheer 

vagueness. There is ample authority for the 

proposition that a law affecting fundamental 

rights may be so considered. 

A very pertinent example is to be found in State 

of Madhya Pradesh and Anr. v. Baldeo Prasad, 

1961 (1) SCR 970 where the Central Provinces 

and Berar Goondas Act 1946 was declared void 

for uncertainty. The condition for the application 

of Sections 4 and 4A was that the person sought 

to be proceeded against must be a goonda but the 

definition of goonda in the Act indicated no tests 

for deciding which person fell within the 

definition. The provisions were therefore held to 

be uncertain and vague. 

The real rule is that if a law is vague or appears 

to be so, the court must try to construe it, as far 

as may be, and language permitting, the 

construction sought to be placed on it, must be in 

accordance with the intention of the legislature. 

Thus if the law is open to diverse construction, that 

construction which accords best with the intention of the 

legislature and advances the purpose of legislation, is to 

be preferred. Where however the law admits of no 

such construction and the persons applying it are in a 

boundless sea of uncertainty and the law prima facie 

takes away a guaranteed freedom, the law must be held 

to offend the Constitution as was done in the case of 

the Goonda Act. This is not application of the 

doctrine of due process. The invalidity arises from 

the probability of the misuse of the law to the 

detriment of the individual. If possible, the Court 

instead of striking down the law may itself draw 

the line of demarcation where possible but this 

effort should be sparingly made and only in the 

clearest of cases.” (at pages 470, 471) 

66. Similarly, in Harakchand Ratanchand Banthia 

& Ors. v. Union of India & Ors., 1969 (2) SCC 

166, Section 27 of the Gold Control Act was 

struck down on the ground that the conditions 

imposed by it for the grant of renewal of licences 

are uncertain, vague and unintelligible. The Court 

held: 

“21. We now come to Section 27 of the Act 

which relates to licensing of dealers. It was 

stated on behalf of the petitioners that the 

conditions imposed by sub-section (6) of Section 

27 for the grant or renewal of licences are 

uncertain, vague and unintelligible and 

consequently wide and unfettered power was 

conferred upon the statutory authorities in the 

matter of grant or renewal of licence. In our 

opinion this contention is well founded and must 

be accepted as correct. Section 27(6)(a) states 

that in the matter of issue or renewal of licences 

the Administrator shall have regard to “the 

number of dealers existing in the region in which 

the applicant intends to carry on business as a 

dealer”. But the word “region” is nowhere 

defined in the Act. Similarly Section 27(6)(b) 

requires the Administrator to have regard to “the 

anticipated demand, as estimated by him, for 

ornaments in that region.” The expression 

“anticipated demand” is a vague expression 

which is not capable of objective assessment and 

is bound to lead to a great deal of uncertainty. 

Similarly the expression “suitability of the 

applicant” in Section 27(6)(e) and “public 

interest” in Section 27(6)(g) do not provide any 

objective standard or norm or guidance. For 

these reasons it must be held that clauses 

(a),(d),(e) and (g) of Section 27(6) impose 

unreasonable restrictions on the fundamental 

right of the petitioner to carry on business and 

are constitutionally invalid. It was also 

contended that there was no reason why the 

conditions for renewal of licence should be as 

rigorous as the conditions for initial grant of 

licence. The requirement of strict conditions for 

the renewal of licence renders the entire future of 

the business of the dealer uncertain and subjects 

it to the caprice and arbitrary will of the 

administrative authorities. There is justification 

for this argument and the requirement of Section 

26 of the Act imposing the same conditions for 

the renewal of the licence as for the initial grant 

appears to be unreasonable. In our opinion 

clauses (a), (b), (e) and (g) are inextricably 

bound up with the other clauses of Section 27(6) 

and form part of a single scheme. The result is 

that clauses (a), (b), (c), (e) and (g) are not 

severable and the entire Section 27(6) of the Act 

must be held invalid. Section 27(2)(d) of the Act 


70


states that a valid licence issued by the 

Administrator “may contain such conditions, 

limitations and restrictions as the Administrator 

may think fit to impose and different conditions, 

limitations and restrictions may be imposed for 

different classes of dealers”. On the face of it, 

this sub-section confers such wide and vague 

power upon the Administrator that it is difficult 

to limit its scope. In our opinion Section 27(2)(d) 

of the Act must be struck down as an 

unreasonable restriction on the fundamental right 

of the petitioners to carry on business. It appears, 

however, to us that if Section 27(2)(d) and 

Section 27(6) of the Act are invalid the licensing 

scheme contemplated by the rest of Section 27 of 

the Act cannot be worked in practice. It is, 

therefore, necessary for Parliament to enact fresh 

legislation imposing appropriate conditions and 

restrictions for the grant and renewal of licences 

to dealers. In the alternative the Central 

Government may make appropriate rules for the 

same purpose in exercise of its rule-making 

power under Section 114 of the Act.” 

67. In A.K. Roy & Ors. v. Union of India & Ors., 

[1982] 2 S.C.R. 272, a part of Section 3 of the 

National Security Ordinance was read down on 

the ground that “acting in any manner prejudicial 

to the maintenance of supplies and services 

essential to the community” is an expression so 

vague that it is capable of wanton abuse. The 

Court held: 

“What we have said above in regard to the 

expressions ‘defence of India’, ‘security of 

India’, 'security of the State' and ‘relations of 

India with foreign powers’ cannot apply to the 

expression “acting in any manner prejudicial to 

the maintenance of supplies and services 

essential to the community” which occurs in 

Section 3(2) of the Act. Which supplies and 

services are essential to the community can 

easily be defined by the legislature and indeed, 

legislations which regulate the prices and 

possession of essential commodities either 

enumerate those commodities or confer upon the 

appropriate Government the power to do so. In 

the absence of a definition of ‘supplies and 

services essential to the community’, the 

detaining authority will be free to extend the 

application of this clause of sub-section (2) to 

any commodities or services the maintenance of 

supply of which, according to him, is essential to 

the community. 

But that is not all. The Explanation to subsection 

(2) gives to the particular phrase in that 

sub-section a meaning which is not only 

uncertain but which, at any given point of time, 

will be difficult to ascertain or fasten upon. 

According to the Explanation, no order of 

detention can be made under the National 

Security Act on any ground on which an order of 

detention may be made under the Prevention of 

Blackmarketing and Maintenance of Supplies of 

Essential Commodities Act, 1980. The reason for 

this, which is stated in the Explanation itself, is 

that for the purposes of sub-section (2), “acting 

in any manner prejudicial to the maintenance of 

supplies essential to the community” does not 

include “acting in any manner prejudicial to the 

maintenance of supplies of commodities 

essential to the community” as defined in the 

Explanation to sub-section (1) of Section 3 of the 

Act of 1980. Clauses (a) and (b) of the 

Explanation to Section 3(1) of the Act of 1980 

exhaust almost the entire range of essential 

commodities. Clause (a) relates to committing or 

instigating any person to commit any offence 

punishable under the Essential Commodities Act, 

10 of 1955, or under any other law for the time 

being in force relating to the control of the 

production, supply or distribution of, or trade and 

commerce in, any commodity essential to the 

community. Clause (b) of the Explanation to 

Section 3(1) of the Act of 1980 relates to dealing 

in any commodity which is an essential 

commodity as defined in the Essential 

Commodities Act, 1955, or with respect to which 

provisions have been made in any such other law 

as is referred to in clause (a). We find it quite 

difficult to understand as to which are the 

remaining commodities outside the scope of the 

Act of 1980, in respect of which it can be said 

that the maintenance of their supplies is essential 

to the community. The particular clause in subsection 

(2) of Section 3 of the National Security 

Act is, therefore, capable of wanton abuse in 

that, the detaining authority can place under 

detention any person for possession of any 

commodity on the basis that the authority is of 

the opinion that the maintenance of supply of 

71 



that commodity is essential to the community. 

We consider the particular clause not only vague and 

uncertain but, in the context of the Explanation, 

capable of being extended cavalierly to supplies, the 

maintenance of which is not essential to the community. 

To allow the personal liberty of the people to be taken 

away by the application of that clause would be a 

flagrant violation of the fairness and justness of 

procedure which is implicit in the provisions of Article 

21.” (at p. 325-326) (emphasis ours) 

68. Similarly, in Kartar Singh v. State of Punjab, 

(1994) 3 SCC 569 at para 130-131, it was held: 

“130. It is the basic principle of legal jurisprudence 

that an enactment is void for vagueness if its 

prohibitions are not clearly defined. Vague laws 

offend several important values. It is insisted or 

emphasized that laws should give the person of 

ordinary intelligence a reasonable opportunity to 

know what is prohibited, so that he may act 

accordingly. Vague laws may trap the innocent 

by not providing fair warning. Such a law 

impermissibly delegates basic policy matters to 

policemen and also judges for resolution on an 

ad hoc and subjective basis, with the attendant 

dangers of arbitrary and discriminatory 

application. More so uncertain and undefined 

words deployed inevitably lead citizens to “steer 

far wider of the unlawful zone …” than if the 

boundaries of the forbidden areas were clearly 

marked. 

131. Let us examine clause (i) of Section 2(1)(a). 

This section is shown to be blissfully and 

impermissibly vague and imprecise. As rightly 

pointed out by the learned counsel, even an 

innocent person who ingenuously and 

undefiledly communicates or associates without 

any knowledge or having no reason to believe or 

suspect that the person or class of persons with 

whom he has communicated or associated is 

engaged in assisting in any manner terrorists or 

disruptionists, can be arrested and prosecuted by 

abusing or misusing or misapplying this 

definition. In ultimate consummation of the 

proceedings, perhaps that guiltless and innocuous 

innocent person may also be convicted.” 

69. Judged by the standards laid down in the 

aforesaid judgments, it is quite clear that the 

expressions used in 66A are completely open-ended and 

undefined. Section 66 in stark contrast to Section 

66A states: 

“66. Computer related offences. – If any person, 

dishonestly or fraudulently, does any act referred 

to in Section 43, he shall be punishable with 

imprisonment for a term which may extend to 

three years or with fine which may extend to five 

lakh rupees or with both. 

Explanation. – For the purposes of this section, – 

(a) the word “dishonestly” shall have the 

meaning assigned to it in Section 24 of the 

Indian Penal Code (45 of 1860); 

(b) the word “fraudulently” shall have the 

meaning assigned to it in Section 25 of the 

Indian Penal Code (45 of 1860).” 

70. It will be clear that in all computer related 

offences that are spoken of by Section 66, mens rea is an 

ingredient and the expression “dishonestly” and 

“fraudulently” are defined with some degree of 

specificity, unlike the expressions used in Section 66A. 

71. The provisions contained in Sections 66B up 

to Section 67B also provide for various 

punishments for offences that are clearly made 

out. For example, under Section 66B, whoever 

dishonestly receives or retains any stolen 

computer resource or communication device is 

punished with imprisonment. Under Section 66C, 

whoever fraudulently or dishonestly makes use of 

any identification feature of another person is 

liable to punishment with imprisonment. Under 

Section 66D, whoever cheats by personating 

becomes liable to punishment with imprisonment. 

Section 66F again is a narrowly drawn section which 

inflicts punishment which may extend to imprisonment 

for life for persons who threaten the unity, integrity, 

security or sovereignty of India. ♠ Sections 67 to 67B 

deal with punishment for offences for publishing 

or transmitting obscene material including 

depicting children in sexually explicit acts in 

electronic form. 

♠ This seems to be a horribly conceived and vaguely drawn 

up section, which can rope in persons engaging in rightful 

and scientific/historical study, discussion and criticism of 

state policies and actions in connection with the said 

objectives. - IMS. 


72


72. In the Indian Penal Code, a number of the 

expressions that occur in Section 66A occur in 

Section 268. 

“268. Public nuisance. – A person is guilty of a 

public nuisance who does any act or is guilty of 

an illegal omission, which causes any common 

injury, danger or annoyance to the public or to 

the people in general who dwell or occupy 

property in the vicinity, or which must 

necessarily cause injury, obstruction, danger or 

annoyance to persons who may have occasion to 

use any public right. A common nuisance is not 

excused on the ground that it causes some 

convenience or advantage.” 

73. It is important to notice the distinction between 

the Sections 268 and 66A. Whereas, in Section 268 the 

various expressions used are ingredients for the offence 

of a public nuisance, these ingredients now become 

offences in themselves when it comes to Section 66A. 

Further, under Section 268, the person should be 

guilty of an act or omission which is illegal in 

nature – legal acts are not within its net. A further 

ingredient is that injury, danger or annoyance must 

be to the public in general. Injury, danger or 

annoyance are not offences by themselves 

howsoever made and to whomsoever made. The 

expression “annoyance” appears also in Sections 

294 and 510 of the IPC: 

“294. Obscene acts and songs. – Whoever, to the 

annoyance of others, 

(a) does any obscene act in any public place, or 

(b) sings, recites or utters any obscene songs, 

ballad or words, in or near any public place, 

shall be punished with imprisonment of either 

description for a term which may extend to three 

months, or with fine, or with both. 

510. Misconduct in public by a drunken person. – 

Whoever, in a state of intoxication, appears in 

any public place, or in any place which it is a 

trespass in him to enter, and there conducts 

himself in such a manner as to cause annoyance 

to any person, shall be punished with simple 


twenty-four hours, or with fine which may 

extend to ten rupees, or with both.” 

74. If one looks at Section 294, the annoyance 

that is spoken of is clearly defined – that is, it has 

to be caused by obscene utterances or acts. 

Equally, under Section 510, the annoyance that is 

caused to a person must only be by another 

person who is in a state of intoxication and who 

annoys such person only in a public place or in a 

place for which it is a trespass for him to enter. 

Such narrowly and closely defined contours of offences 

made out under the Penal Code are conspicuous by 

their absence in Section 66A which in stark contrast 

uses completely open ended, undefined and vague 

language. 


75. Incidentally, none of the expressions used in 

Section 66A are defined. Even “criminal intimidation” 

is not defined – and the definition clause of the 

Information Technology Act, Section 2 does not 

say that words and expressions that are defined in 

the Penal Code will apply to this Act. (emphasis ours) 

76. Quite apart from this, as has been pointed out 

above, every expression used is nebulous in meaning. 

What may be offensive to one may not be offensive to 

another. What may cause annoyance or 

inconvenience to one may not cause annoyance 

or inconvenience to another. Even the expression 

“persistently” is completely imprecise – suppose a 

message is sent thrice, can it be said that it was 

sent “persistently”? Does a message have to be 

sent (say) at least eight times, before it can be 

said that such message is “persistently” sent? 

There is no demarcating line conveyed by any of these 

expressions – and that is what renders the Section 

unconstitutionally vague. 


77. However, the learned Additional Solicitor 

General argued before us that expressions that are 

used in Section 66A may be incapable of any precise 

definition but for that reason they are not 

constitutionally vulnerable. He cited a large number 

of judgments in support of this submission. None 

of the cited judgments dealt with a Section creating an 

offence which is saved despite its being vague and in 

capable of any precise definition. In fact, most of the 

judgments cited before us did not deal with 

criminal law at all. The few that did are dealt with 

herein-below. For instance, Madan Singh v. State 

of Bihar, (2004) 4 SCC 622, was cited before us. 

The passage cited from the aforesaid judgment is 

contained in para 19 of the judgment. The cited 

73 



passage is not in the context of an argument that 

the word “terrorism” not being separately defined 

would, therefore, be struck down on the ground 

of vagueness. The cited passage was only in the 

context of upholding the conviction of the 

accused in that case. Similarly, in Zameer Ahmed 

Latifur Rehman Sheikh v. State of Maharashtra & 

Ors., (2010) 5 SCC 246, the expression 

“insurgency” was said to be undefined and would 

defy a precise definition, yet it could be 

understood to mean break down of peace and 

tranquility as also a grave disturbance of public 

order so as to endanger the security of the State 

and its sovereignty. This again was said in the 

context of a challenge on the ground of legislative 

competence. The provisions of the Maharashtra 

Control of Organised Crime Act were challenged 

on the ground that they were outside the 

expression “public order” contained in Entry 1 of 

List I of the 7 th Schedule of the Constitution of 

India. This contention was repelled by saying that 

the expression “public order” was wide enough to 

encompass cases of “insurgency”. This case again 

had nothing to do with a challenge raised on the 

ground of vagueness. 

78. Similarly, in State of M.P. v. Kedia Leather & 

Liquor Limited, (2003) 7 SCC 389, paragraph 8 

was cited to show that the expression “nuisance” 

appearing in Section 133 of the Code of Criminal 

Procedure was also not capable of precise 

definition. This again was said in the context of 

an argument that Section 133 of the Code of 

Criminal Procedure was impliedly repealed by 

the Water (Prevention and Control of Pollution) 

Act, 1974. This contention was repelled by 

saying that the areas of operation of the two 

provisions were completely different and they 

existed side by side being mutually exclusive. 

This case again did not contain any argument that 

the provision contained in Section 133 was vague 

and, therefore, unconstitutional. Similarly, in 

State of Karnataka v. Appa Balu Ingale, 1995 Supp. 

(4) SCC 469, the word “untouchability” was said 

not to be capable of precise definition. Here 

again, there was no constitutional challenge on 

the ground of vagueness. 

79. In fact, two English judgments cited by the 

learned Additional Solicitor General would 

demonstrate how vague the words used in Section 

66A are. In Director of Public Prosecutions v. 

Collins, (2006) 1 WLR 2223, the very expression 

“grossly offensive” is contained in Section 

127(1)(1) of the U.K. Communications Act, 

2003. A 61 year old man made a number of 

telephone calls over two years to the office of a 

Member of Parliament. In these telephone calls 

and recorded messages Mr. Collins who held 

strong views on immigration made a reference to 

“Wogs”, “Pakis”, “Black bastards” and 

“Niggers”. Mr. Collins was charged with sending 

messages which were grossly offensive. The 

Leicestershire Justices dismissed the case against 

Mr. Collins on the ground that the telephone calls 

were offensive but not grossly offensive. A 

reasonable person would not so find the calls to 

be grossly offensive. The Queen’s Bench agreed 

and dismissed the appeal filed by the Director of 

Public Prosecutions. The House of Lords 

reversed the Queen’s Bench stating: 

“9. The parties agreed with the rulings of the 

Divisional Court that it is for the Justices to 

determine as a question of fact whether a 

message is grossly offensive, that in making this 

determination the Justices must apply the 

standards of an open and just multi-racial 

society, and that the words must be judged taking 

account of their context and all relevant 

circumstances. I would agree also. Usages and 

sensitivities may change over time. Language 

otherwise insulting may be used in an 

unpejorative, even affectionate, way, or may be 

adopted as a badge of honour (“Old 

Contemptibles”). There can be no yardstick of 

gross offensiveness otherwise than by the 

application of reasonably enlightened, but not 

perfectionist, contemporary standards to the 

particular message sent in its particular context. 

The test is whether a message is couched in 

terms liable to cause gross offence to those to 

whom it relates. 

10. In contrast with section 127(2)(a) and its 

predecessor subsections, which require proof of 

an unlawful purpose and a degree of knowledge, 

section 127(1)(a) provides no explicit guidance 


74


on the state of mind which must be proved 

against a defendant to establish an offence 

against the subsection.” Ψ 

80. Similarly in Chambers v. Director of Public 

Prosecutions, [2013] 1 W.L.R. 1833, the Queen’s 

Bench was faced with the following facts: 

“Following an alert on the Internet social 

network, Twitter, the defendant became aware 

that, due to adverse weather conditions, an 

airport from which he was due to travel nine 

days later was closed. He responded by posting 

several “tweets” on Twitter in his own name, 

including the following: “Crap1 Robin Hood 

Airport is closed. You’ve got a week and a bit to 

get your shit together otherwise I am blowing the 

airport sky high1” None of the defendant’s 

“followers” who read the posting was alarmed by 

it at the time. Some five days after its posting the 

defendant’s tweet was read by the duty manager 

responsible for security at the airport on a 

general Internet search for tweets relating to the 

airport. Though not believed to be a credible 

threat the matter was reported to the police. In 

interview the defendant asserted that the tweet 

was a joke and not intended to be menacing. The 

defendant was charged with sending by a public 

electronic communications network a message of 

a menacing character contrary to section 

127(1)(a) of the Communications Act 2003. He 

was convicted in a magistrates’ court and, on 

appeal, the Crown Court upheld the conviction, 

being satisfied that the message was “menacing 

per se” and that the defendant was, at the very 

least, aware that his message was of a menacing 

character.” 

81. The Crown Court was satisfied that the 

message in question was “menacing” stating that 

an ordinary person seeing the tweet would be 

alarmed and, therefore, such message would be 

“menacing”. The Queen’s Bench Division 

reversed the Crown Court stating: 

“31. Before concluding that a message is 

criminal on the basis that it represents a menace, 

its precise terms, and any inferences to be drawn 

Ψ 

I don’t approve of the House of Lords opinion and 

reversal and would rather agree with the opinion and 

judgment of the lower courts. - IMS. 

from its precise terms, need to be examined in 

the context in and the means by which the 

message was sent. The Crown Court was 

understandably concerned that this message was 

sent at a time when, as we all know, there is 

public concern about acts of terrorism and the 

continuing threat to the security of the country 

from possible further terrorist attacks. That is 

plainly relevant to context, but the offence is not 

directed to the inconvenience which may be 

caused by the message. In any event, the more 

one reflects on it, the clearer it becomes that this 

message did not represent a terrorist threat, or 

indeed any other form of threat. It was posted on 

“Twitter” for widespread reading, a conversation 

piece for the defendant’s followers, drawing 

attention to himself and his predicament. Much 

more significantly, although it purports to 

address “you”, meaning those responsible for the 

airport, it was not sent to anyone at the airport or 

anyone responsible for airport security, or indeed 

any form of public security. The grievance 

addressed by the message is that the airport is 

closed when the writer wants it to be open. The 

language and punctuation are inconsistent with 

the writer intending it to be or it to be taken as a 

serious warning. Moreover, as Mr. Armson 

noted, it is unusual for a threat of a terrorist 

nature to invite the person making it to be readily 

identified, as this message did. Finally, although 

we are accustomed to very brief messages by 

terrorists to indicate that a bomb or explosive 

device has been put in place and will detonate 

shortly, it is difficult to imagine a serious threat 

in which warning of it is given to a large number 

of tweet “followers” in ample time for the threat 

to be reported and extinguished.” 

82. These two cases illustrate how judicially 

trained minds would find a person guilty or not 

guilty depending upon the Judge’s notion of what 

is “grossly offensive” or “menacing”. In Collins’ 

case, both the Leicestershire Justices and two 

Judges of the Queen’s Bench would have 

acquitted Collins whereas the House of Lords 

convicted him. Similarly, in the Chambers case, 

the Crown Court would have convicted Chambers 

whereas the Queen’s Bench acquitted him. If 

judicially trained minds can come to diametrically 

opposite conclusions on the same set of facts it is obvious 

75 



that expressions such as “grossly offensive” or 

“menacing” are so vague that there is no manageable 

standard by which a person can be said to have 

committed an offence or not to have committed an 

offence. Quite obviously, a prospective offender of 

Section 66A and the authorities who are to 

enforce Section 66A have absolutely no 

manageable standard by which to book a person 

for an offence under Section 66A. This being the 

case, having regard also to the two English 

precedents cited by the learned Additional 

Solicitor General, it is clear that Section 66A is 

unconstitutionally vague. 

Ultimately, applying the tests referred to in 

Chintaman Rao and V.G. Row’s case, referred to 

earlier in the judgment, it is clear that Section 66A 

arbitrarily, excessively and disproportionately invades 

the right of free speech and upsets the balance between 

such right and the reasonable restrictions that may be 

imposed on such right. 


Chilling Effect And Over-breadth 

83. Information that may be grossly offensive or 

which causes annoyance or inconvenience are undefined 

terms which take into the net a very large amount of 

protected and innocent speech. A person may discuss 

or even advocate by means of writing 

disseminated over the internet information that 

may be a view or point of view pertaining to 

governmental, literary, scientific or other matters 

which may be unpalatable to certain sections of 

society. It is obvious that an expression of a view 

on any matter may cause annoyance, 

inconvenience or may be grossly offensive to 

some. A few examples will suffice. A certain 

section of a particular community may be grossly 

offended or annoyed by communications over the 

internet by “liberal views” – such as the 

emancipation of women or the abolition of the 

caste system or whether certain members of a non 

proselytizing religion should be allowed to bring 

persons within their fold who are otherwise 

outside the fold. Each one of these things may be 

grossly offensive, annoying, inconvenient, 

insulting or injurious to large sections of 

particular communities and would fall within the 

net cast by Section 66A. In point of fact, Section 

66A is cast so widely that virtually any opinion on 

any subject would be covered by it, as any serious 

opinion dissenting with the mores of the day would be 

caught within its net. Such is the reach of the Section 

and if it is to withstand the test of constitutionality, the 

chilling effect on free speech would be total. (emphases ours) 

84. Incidentally, some of our judgments have 

recognized this chilling effect of free speech. In 

R. Rajagopal v. State of T.N., (1994) 6 SCC 632, 

this Court held: 

“19. The principle of Sullivan [376 US 254 : 11 

L Ed 2d 686 (1964)] was carried forward – and 

this is relevant to the second question arising in 

this case – in Derbyshire County Council v. 

Times Newspapers Ltd. [(1993) 2 WLR 449 : 

(1993) 1 All ER 1011, HL] , a decision rendered 

by the House of Lords. The plaintiff, a local 

authority brought an action for damages for libel 

against the defendants in respect of two articles 

published in Sunday Times questioning the 

propriety of investments made for its 

superannuation fund. The articles were headed 

“Revealed: Socialist tycoon deals with Labour 

Chief” and “Bizarre deals of a council leader 

and the media tycoon”. A preliminary issue was 

raised whether the plaintiff has a cause of action 

against the defendant. The trial Judge held that 

such an action was maintainable but on appeal 

the Court of Appeal held to the contrary. When 

the matter reached the House of Lords, it 

affirmed the decision of the Court of Appeal but 

on a different ground. Lord Keith delivered the 

judgment agreed to by all other learned Law 

Lords. In his opinion, Lord Keith recalled that in 

Attorney General v. Guardian Newspapers Ltd. 

(No. 2)[(1990) 1 AC 109 : (1988) 3 All ER 545 : 

(1988) 3 WLR 776, HL] popularly known as 

“Spy-catcher case”, the House of Lords had 

opined that “there are rights available to private 

citizens which institutions of… Government are not in a 

position to exercise unless they can show that it is in the 

public interest to do so”. It was also held therein 

that not only was there no public interest in allowing 

governmental institutions to sue for libel, it was 

“contrary to the public interest because to admit such 

actions would place an undesirable fetter on freedom of 

speech” and further that action for defamation or 

threat of such action “inevitably have an inhibiting 

effect on freedom of speech”. The learned Law Lord 

referred to the decision of the United States 


76


Supreme Court in New York Times v. Sullivan 

[376 US 254 : 11 L Ed 2d 686 (1964)] and 

certain other decisions of American Courts and 

observed – and this is significant for our 

purposes – 

“while these decisions were related most directly 

to the provisions of the American Constitution 

concerned with securing freedom of speech, the 

public interest considerations which underlaid 

them are no less valid in this country. What has 

been described as ‘the chilling effect’ induced by 

the threat of civil actions for libel is very 

important. Quite often the facts which would 

justify a defamatory publication are known to be 

true, but admissible evidence capable of proving 

those facts is not available.” 

Accordingly, it was held that the action was not 

maintainable in law.” 


85. Also in S. Khushboo v. Kanniammal, (2010) 5 

SCC 600, this Court said: 

“47. In the present case, the substance of the 

controversy does not really touch on whether 

premarital sex is socially acceptable. Instead, the 

real issue of concern is the disproportionate 

response to the appellant's remarks. If the 

complainants vehemently disagreed with the 

appellant's views, then they should have 

contested her views through the news media or 

any other public platform. The law should not be 

used in a manner that has chilling effects on the 

“freedom of speech and expression”.” (emphasis ours) 

86. That the content of the right under Article 

19(1)(a) remains the same whatever the means of 

communication including internet communication 

is clearly established by Reno’s case (supra) and 

by The Secretary, Ministry of Information & 

Broadcasting v. Cricket Association of Bengal & 

Anr., (1995) SCC 2 161 at Para 78, already 

referred to. It is thus clear that not only are the 

expressions used in Section 66A expressions of 

inexactitude but they are also over broad and would fall 

foul of the repeated injunctions of this Court that 

restrictions on the freedom of speech must be couched 

in the narrowest possible terms. For example, see, 

Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 

S.C.R. 769 at 808-809. In point of fact, 

judgments of the Constitution Bench of this Court 

have struck down sections which are similar in 

nature. A prime example is the section struck 

down in the first Ram Manohar Lohia case, 

namely, Section 3 of the U.P. Special Powers 

Act, where the persons who “instigated” 

expressly or by implication any person or class of 

persons not to pay or to defer payment of any 

liability were punishable. This Court specifically 

held that under the Section a wide net was cast to 

catch a variety of acts of instigation ranging from 

friendly advice to systematic propaganda. It was 

held that in its wide amplitude, the Section takes 

in the innocent as well as the guilty, bona fide 

and mala fide advice and whether the person be a 

legal adviser, a friend or a well wisher of the 

person instigated, he cannot escape the tentacles 

of the Section. The Court held that it was not 

possible to predicate with some kind of precision the 

different categories of instigation falling within or 

without the field of constitutional prohibitions. It 

further held that the Section must be declared 

unconstitutional as the offence made out would depend 

upon factors which are uncertain. 


87. In Kameshwar Prasad & Ors. v. The State of 

Bihar & Anr., [1962] Supp. 3 S.C.R. 369, Rule 4- 

A of the Bihar Government Servants Conduct 

Rules, 1956 was challenged. The rule states “No 

government servant shall participate in any 

demonstration or resort to any form of strike in 

connection with any matter pertaining to his 

conditions of service.” 

88. The aforesaid rule was challenged under 

Articles 19 (1)(a) and (b) of the Constitution. The 

Court followed the law laid down in Ram 

Manohar Lohia’s case [1960] 2 S.C.R. 821 and 

accepted the challenge. It first held that 

demonstrations are a form of speech and then 

held: 

“The approach to the question regarding the 

constitutionality of the rule should be whether 

the ban that it imposes on demonstrations would 

be covered by the limitation of the guaranteed 

rights contained in Art. 19 (2) and 19(3). In 

regard to both these clauses the only relevant 

criteria which has been suggested by the 

respondent-State is that the rule is framed "in the 

interest of public order". A demonstration may 

77 



be defined as "an expression of one's feelings by 

outward signs." A demonstration such as is 

prohibited by, the rule may be of the most 

innocent type - peaceful orderly such as the mere 

wearing of a badge by a Government servant or 

even by a silent assembly say outside office 

hours – demonstrations which could in no sense 

be suggested to involve any breach of tranquility, 

or of a type involving incitement to or capable of 

leading to disorder. If the rule had confined itself to 

demonstrations of type which would lead to disorder 

then the validity of that rule could have been sustained 

but what the rule does is the imposition of a blanket-ban 

on all demonstrations of whatever type - innocent as well 

as otherwise - and in consequence its validity cannot be 

upheld.” (at page 374) 


89. The Court further went on to hold that remote 

disturbances of public order by demonstration would 

fall outside Article 19(2). The connection with public 

order has to be intimate, real and rational and should 

arise directly from the demonstration that is sought to 

be prohibited. Finally, the Court held: 

“The vice of the rule, in our opinion, consists in 

this that it lays a ban on every type of 

demonstration – be the same however innocent 

and however incapable of causing a breach of 

public tranquility and does not confine itself to 

those forms of demonstrations which might lead 

to that result.” (at page 384) 

90. These two Constitution Bench decisions bind 

us and would apply directly on Section 66A. We, 

therefore, hold that the Section is unconstitutional 

also on the ground that it takes within its sweep 

protected speech and speech that is innocent in nature 

and is liable therefore to be used in such a way as to 

have a chilling effect on free speech and would, 

therefore, have to be struck down on the ground of 

overbreadth. 


Possibility of an act being abused is 

not a ground to test its validity: 

91. The learned Additional Solicitor General 

cited a large number of judgments on the 

proposition that the fact that Section 66A is 

capable of being abused by the persons who 

administered it is not a ground to test its validity 

if it is otherwise valid. He further assured us that 

this Government was committed to free speech 

and that Section 66A would not be used to curb 

free speech, but would be used only when 

excesses are perpetrated by persons on the rights 

of others. In The Collector of Customs, Madras v. 

Nathella Sampathu Chetty & Anr., [1962] 3 S.C.R. 

786, this Court observed: 

“….This Court has held in numerous rulings, to 

which it is unnecessary to refer, that the possibility 

of the abuse of the powers under the provisions 

contained in any statute is no ground for declaring the 

provision to be unreasonable or void. Commenting on 

a passage in the judgment of the Court of Appeal 

of Northern Ireland which stated: 

“If such powers are capable of being 

exercised reasonably it is impossible to say 

that they may not also be exercised 

unreasonably” 

and treating this as a ground for holding the 

statute invalid Viscount Simonds observed in 

Belfast Corporation v. O.D. Commission [ 1960 

AC 490 at pp. 520-521] : 

“It appears to me that the short answer to this 

contention (and I hope its shortness will not 

be regarded as disrespect) is that the validity of 

a measure is not to be determined by its application 

to particular cases.… If it is not so exercised 

(i.e. if the powers are abused) it is open to 

challenge and there is no need for express 

provision for its challenge in the statute.” 

The possibility of abuse of a statute otherwise valid does 

not impart to it any element of invalidity. The converse 

must also follow that a statute which is otherwise invalid 

as being unreasonable cannot be saved by its being 

administered in a reasonable manner. The 

constitutional validity of the statute would have 

to be determined on the basis of its provisions 

and on the ambit of its operation as reasonably 

construed. If so judged it passes the test of 

reasonableness, possibility of the powers 

conferred being improperly used is no ground for 

pronouncing the law itself invalid and similarly 

if the law properly interpreted and tested in the 

light of the requirements set out in Part III of the 

Constitution does not pass the test it cannot be 

pronounced valid merely because it is administered 

in a manner which might not conflict with the 

constitutional requirements.” (at page 825) (emphases ours) 

92. In this case, it is the converse proposition which 

would really apply if the learned Additional Solicitor 

General’s argument is to be accepted. If Section 66A is 


78


otherwise invalid, it cannot be saved by an assurance 

from the learned Additional Solicitor General that it 

will be administered in a reasonable manner. 

Governments may come and Governments may go but 

Section 66A goes on forever. An assurance from the 

present Government even if carried out faithfully 

would not bind any successor Government. It 

must, therefore, be held that Section 66A must be 

judged on its own merits without any reference to 

how well it may be administered. 

Severability: 

93. The argument of the learned Additional 

Solicitor General on this score is reproduced by 

us verbatim from one of his written submissions: 

“Furthermore it is respectfully submitted that in 

the event of Hon’ble Court not being satisfied 

about the constitutional validity of either any 

expression or a part of the provision, the 

Doctrine of Severability as enshrined under 

Article 13 may be resorted to.” 

94. The submission is vague: the learned 

Additional Solicitor General does not indicate 

which part or parts of Section 66A can possibly 

be saved. This Court in Romesh Thappar v. The 

State of Madras, [1950] S.C.R. 594, repelled a 

contention of severability when it came to the 

courts enforcing the fundamental right under 

Article 19(1)(a) in the following terms: 

“It was, however, argued that Section 9(1-A) 

could not be considered wholly void, as, under 

Article 13(1), an existing law inconsistent with a 

fundamental right is void only to the extent of 

the inconsistency and no more. Insofar as the 

securing of the public safety or the maintenance 

of public order would include the security of the 

State, the impugned provision, as applied to the 

latter purpose, was covered by clause (2) of 

Article 19 and must, it was said, be held to be 

valid. We are unable to accede to this contention. 

Where a law purports to authorise the imposition of 

restrictions on a fundamental right in language wide 

enough to cover restrictions both within and without the 

limits of constitutionally permissible legislative action 

affecting such right, it is not possible to uphold it even so 

far as it may be applied within the constitutional limits, 

as it is not severable. So long as the possibility of its being 

applied for purposes not sanctioned by the Constitution 

cannot be ruled out, it must be held to be wholly 

unconstitutional and void. In other words, clause (2) 

of Article 19 having allowed the imposition of 

restrictions on the freedom of speech and 

expression only in cases where danger to the 

State is involved, an enactment, which is capable 

of being applied to cases where no such danger 

could arise, cannot be held to be constitutional and 

valid to any extent.” (At page 603) (emphasis ours) 

95. It has been held by us that Section 66A purports 

to authorize the imposition of restrictions on the 

fundamental right contained in Article 19(1)(a) in 

language wide enough to cover restrictions both within 

and without the limits of constitutionally permissible 

legislative action. We have held following K.A. 

Abbas’ case (Supra) that the possibility of Section 

66A being applied for purposes not sanctioned by the 

Constitution cannot be ruled out. It must, therefore, be 

held to be wholly unconstitutional and void. Romesh 

Thappar’s Case was distinguished in R.M.D. 

Chamarbaugwalla v. The Union of India, [1957] 

S.C.R. 930, in the context of a right under Article 

19(1)(g) as follows: 

“20. In Romesh Thappar v. State of Madras 

[(1950) SCR 594], the question was as to the 

validity of Section 9(1-A) of the Madras 

Maintenance of Public Order Act, 23 of 1949. 

That section authorised the Provincial 

Government to prohibit the entry and circulation 

within the State of a newspaper “for the purpose 

of securing the public safety or the maintenance 

of public order.” Subsequent to the enactment of 

this statute, the Constitution came into force, and 

the validity of the impugned provision depended 

on whether it was protected by Article 19(2), 

which saved “existing law insofar as it relates to 

any matter which undermines the security of or 

tends to overthrow the State.” It was held by this 

Court that as the purposes mentioned in Section 

9(1-A) of the Madras Act were wider in 

amplitude than those specified in Article 19(2), 

and as it was not possible to split up Section 9(1- 

A) into what was within and what was without 

the protection of Article 19(2), the provision 

must fail in its entirety. That is really a decision 

that the impugned provision was on its own 

contents inseverable. It is not an authority for the 

position that even when a provision is severable, it must 

be struck down on the ground that the principle of 

severability is inadmissible when the invalidity of a 

statute arises by reason of its contravening 

constitutional prohibitions. It should be mentioned 

79 



that the decision in Romesh Thappar v. State of 

Madras [ (1950) SCR 594] was referred to in 

State of Bombay v. F.N. Balsara [ (1951) SCR 

682] and State of Bombay v. United Motors 

(India) Ltd. [ (1953) SCR 1069 at 1098-99] and 

distinguished.” 


96. The present being a case of an Article 19(1)(a) 

violation, Romesh Thappar’s judgment would apply 

on all fours. In an Article 19(1)(g) challenge, there 

is no question of a law being applied for purposes 

not sanctioned by the Constitution for the simple 

reason that the eight subject matters of Article 

19(2) are conspicuous by their absence in Article 

19(6) which only speaks of reasonable restrictions 

in the interests of the general public. The present 

is a case where, as has been held above, Section 

66A does not fall within any of the subject 

matters contained in Article 19(2) and the 

possibility of its being applied for purposes 

outside those subject matters is clear. We 

therefore hold that no part of Section 66A is severable 

and the provision as a whole must be declared 

unconstitutional. 


ARTICLE 14 

97. Counsel for the petitioners have argued that 

Article 14 is also infringed in that an offence whose 

ingredients are vague in nature is arbitrary and 

unreasonable and would result in arbitrary and 

discriminatory application of the criminal law. Further, 

there is no intelligible differentia between the medium 

of print, broadcast, and real live speech as opposed to 

speech on the internet and, therefore, new categories of 

criminal offences cannot be made on this ground. 

Similar offences which are committed on the 

internet have a three year maximum sentence 

under Section 66A as opposed to defamation 

which has a two year maximum sentence. Also, 

defamation is a non-cognizable offence whereas 

under Section 66A the offence is cognizable. 

98. We have already held that Section 66A 

creates an offence which is vague and overbroad, 

and, therefore, unconstitutional under Article 

19(1)(a) and not saved by Article 19(2). We have 

also held that the wider range of circulation over 

the internet cannot restrict the content of the right 

under Article 19(1)(a) nor can it justify its denial. 

However, when we come to discrimination under 

Article 14, 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. The learned Additional Solicitor General 

has correctly said that something posted on a site 

or website travels like lightning and can reach 

millions of persons all over the world. If the 

petitioners were right, this Article 14 argument 

would apply equally to all other offences created 

by the Information Technology Act which are not 

the subject matter of challenge in these petitions. 

We make it clear that there is an intelligible 

differentia between speech on the internet and other 

mediums of communication for which separate offences 

can certainly be created by legislation. We find, 

therefore, that the challenge on the ground of Article 

14 must fail. (emphases ours) 

Procedural Unreasonableness 

99. One other argument must now be considered. 

According to the petitioners, Section 66A also 

suffers from the vice of procedural unreasonableness. 

In that, if, for example, criminal defamation is 

alleged, the safeguards available under Section 

199 Cr.P.C. would not be available for a like 

offence committed under Section 66A. Such 

safeguards are that no court shall take cognizance 

of such an offence except upon a complaint made 

by some person aggrieved by the offence and that 

such complaint will have to be made within six 

months from the date on which the offence is 

alleged to have been committed. Further, 

safeguards that are to be found in Sections 95 and 

96 of the Cr.P.C. are also absent when it comes to 

Section 66A. For example, where any newspaper 

book or document wherever printed appears to 

contain matter which is obscene, hurts the 

religious feelings of some community, is 

seditious in nature, causes enmity or hatred to a 

certain section of the public, or is against national 

integration, such book, newspaper or document 

may be seized but under Section 96 any person 


80


having any interest in such newspaper, book or 

document may within two months from the date 

of a publication seizing such documents, books or 

newspapers apply to the High court to set aside 

such declaration. Such matter is to be heard by a 

Bench consisting of at least three Judges or in 

High Courts which consist of less than three 

Judges, such special Bench as may be composed 

of all the Judges of that High Court. 

100. It is clear that Sections 95 and 96 of the 

Criminal Procedure Code reveal a certain degree 

of sensitivity to the fundamental right to free 

speech and expression. If matter is to be seized on 

specific grounds which are relatable to the subject 

matters contained in Article 19(2), it would be 

open for persons affected by such seizure to get a 

declaration from a High Court consisting of at 

least three Judges that in fact publication of the 

so-called offensive matter does not in fact relate 

to any of the specified subjects contained in 

Article 19(2). Further, Section 196 of the Cr.P.C. 

states: 

“196. Prosecution for offences against the State and for 

criminal conspiracy to commit such offence. – 

(1) No Court shall take cognizance of – 

(a) any offence punishable under Chapter VI 

or under Section 153-A, [Section 295-A 

or sub-section (1) of Section 505] of the 

Indian Penal Code, 1860 (45 of 1860), or 

(b) a criminal conspiracy to commit such 

offence, or 

(c) any such abetment, as is described in 

Section 108-A of the Indian Penal Code 

(45 of 1860), except with the previous 

sanction of the Central Government or of 

the State Government. 

[(1-A) No Court shall take cognizance of – 

(a) any offence punishable under Section 

153-B or sub-section (2) or sub-section 

(3) of Section 505 of the Indian Penal 

Code, 1860 (45 of 1860), or 

(b) a criminal conspiracy to commit such 

offence, 

except with the previous sanction of the 

Central Government or of the State 

Government or of the District Magistrate.] 

(2) No court shall take cognizance of the offence 

of any criminal conspiracy punishable under 

Section 120-B of the Indian Penal Code (45 of 

1860), other than a criminal conspiracy to 

commit [an offence] punishable with death, 

imprisonment for life or rigorous imprisonment 

for a term of two years or upwards, unless the 

State Government or the District Magistrate has 

consented in writing to the initiation of the 

proceedings: 

Provided that where the criminal conspiracy is 

one to which the provisions of Section 195 

apply, no such consent shall be necessary. 

(3) The Central Government or the State 

Government may, before according sanction 

[under sub-section (1) or sub-section (1-A) and 

the District Magistrate may, before according 

sanction under sub-section (1-A)] and the State 

Government or the District Magistrate may, 

before giving consent under sub-section (2), 

order a preliminary investigation by a police 

officer not being below the rank of Inspector, in 

which case such police officer shall have the 

powers referred to in sub-section (3) of Section 

155.” 

101. Again, for offences in the nature of 

promoting enmity between different groups on 

grounds of religion etc. or offences relatable to 

deliberate and malicious acts intending to outrage 

religious feelings or statements that create or 

promote enmity, hatred or ill-will between classes 

can only be taken cognizance of by courts with 

the previous sanction of the Central Government 

or the State Government. This procedural 

safeguard does not apply even when a similar 

offence may be committed over the internet 

where a person is booked under Section 66A 

instead of the aforesaid Sections. Having struck 

down Section 66A on substantive grounds, we need not 

decide the procedural unreasonableness aspect of the 

Section. 


Section 118 of the Kerala Police Act 

102. Learned counsel for the Petitioner in Writ 

Petition No. 196 of 2014 assailed sub-section (d) 

of Section 118 which is set out here-in-below: 

“118. Penalty for causing grave violation of public 

order or danger. – 

81 



Any person who, – 

(d) Causes annoyance to any person in an 

indecent manner by statements or verbal or 

comments or telephone calls or calls of any type 

or by chasing or sending messages or mails by 

any means; 

shall, on conviction be punishable with 


three years or with fine not exceeding ten 

thousand rupees or with both.” 

103. Learned counsel first assailed the Section on 

the ground of legislative competence stating that 

this being a Kerala Act, it would fall outside 

Entries1 and 2 of List II and fall within Entry 31 

of List I. In order to appreciate the argument we 

set out the relevant entries: 

“List - I 

31. Posts and telegraphs; telephones, wireless, 

broadcasting and other like forms of 

communication. 

List - II 

1. Public order (but not including the use of any 

naval, military or air force or any other armed 

force of the Union or of any other force subject 

to the control of the Union or of any contingent 

or unit thereof in aid of the civil power). 

2. Police (including railway and village police) 

subject to the provisions of entry 2A of List I.” 

The Kerala Police Act as a whole would 

necessarily fall under Entry 2 of List II. In 

addition, Section 118 would also fall within Entry 

1 of List II in that, as its marginal note tells us, it 

deals with penalties for causing grave violation of 

public order or danger. 

104. It is well settled that a statute cannot be 

dissected and then examined as to under what 

field of legislation each part would separately 

fall. In A.S. Krishna v. State of Madras, [1957] 

S.C.R. 399, the law is stated thus: 

“The position, then, might thus be summed up: 

When a law is impugned on the ground that it is 

ultra vires the powers of the legislature which 

enacted it, what has to be ascertained is the true 

character of the legislation. To do that, one must 

have regard to the enactment as a whole, to its 

objects and to the scope and effect of its 

provisions. If on such examination it is found 

that the legislation is in substance one on a 

matter assigned to the legislature, then it must be 

held to be valid in its entirety, even though it 

might incidentally trench on matters which are 

beyond its competence. It would be quite an 

erroneous approach to the question to view such 

a statute not as an organic whole, but as a mere 

collection of sections, then disintegrate it into 

parts, examine under what heads of legislation 

those parts would severally fall, and by that 

process determine what portions thereof are intra 

vires, and what are not.” (at page 410) 

105. It is, therefore, clear that the Kerala Police 

Act as a whole and Section 118 as part thereof 

falls in pith and substance within Entry 2 List II, 

notwithstanding any incidental encroachment that 

it may have made on any other Entry in List I. 

Even otherwise, the penalty created for causing 

annoyance in an indecent manner in pith and 

substance would fall within Entry 1 List III which 

speaks of criminal law and would thus be within 

the competence of the State Legislature in any 

case. 

106. However, what has been said about Section 66A 

would apply directly to Section 118(d) of the Kerala 

Police Act, as causing annoyance in an indecent 

manner suffers from the same type of vagueness 

and over breadth, that led to the invalidity of 

Section 66A, and for the reasons given for 

striking down Section 66A, Section 118(d) also 

violates Article 19(1)(a) and not being a reasonable 

restriction on the said right and not being saved under 

any of the subject matters contained in Article 19(2) is 

hereby declared to be unconstitutional. (emphases ours) 

Section 69A and the Information Technology 

(Procedure and Safeguards for Blocking for 

Access of Information by Public) Rules, 2009. 

107. Section 69A of the Information Technology 

Act has already been set out in paragraph 2 of the 

judgment. Under sub-section (2) thereof, the 2009 

Rules have been framed. Under Rule 3, the 

Central Government shall designate by 

notification in the official gazette an officer of the 

Central Government not below the rank of a Joint 

Secretary as the Designated Officer for the 

purpose of issuing direction for blocking for 


82


access by the public any information referable to 

Section 69A of the Act. Under Rule 4, every 

organization as defined under Rule 2(g), (which 

refers to the Government of India, State 

Governments, Union Territories and agencies of 

the Central Government as may be notified in the 

Official Gazette by the Central Government) – is 

to designate one of its officers as the “Nodal 

Officer”. Under Rule 6, any person may send 

their complaint to the “Nodal Officer” of the 

concerned Organization for blocking, which 

complaint will then have to be examined by the 

concerned Organization regard being had to the 

parameters laid down in Section 69A(1) and after 

being so satisfied, shall transmit such complaint 

through its Nodal Officer to the Designated 

Officer in a format specified by the Rules. The 

Designated Officer is not to entertain any 

complaint or request for blocking directly from 

any person. Under Rule 5, the Designated Officer 

may on receiving any such request or complaint 

from the Nodal Officer of an Organization or 

from a competent court, by order direct any 

intermediary or agency of the Government to 

block any information or part thereof for the 

reasons specified in 69A(1). Under Rule 7 

thereof, the request/complaint shall then be 

examined by a Committee of Government 

Personnel who under Rule 8 are first to make all 

reasonable efforts to identify the originator or 

intermediary who has hosted the information. If 

so identified, a notice shall issue to appear and 

submit their reply at a specified date and time 

which shall not be less than 48 hours from the 

date and time of receipt of notice by such person 

or intermediary. The Committee then examines 

the request and is to consider whether the request 

is covered by 69A(1) and is then to give a 

specific recommendation in writing to the Nodal 

Officer of the concerned Organization. It is only 

thereafter that the Designated Officer is to submit 

the Committee’s recommendation to the Secretary, 

Department of Information Technology who is to 

approve such requests or complaints. Upon such 

approval, the Designated Officer shall then direct 

any agency of Government or intermediary to 

to block the offending information. Rule 9 

provides for blocking of information in cases of 

emergency where delay caused would be fatal in 

which case the blocking may take place without 

any opportunity of hearing. The Designated 

Officer shall then, not later than 48 hours of the 

issue of the interim direction, bring the request 

before the Committee referred to earlier, and only 

on the recommendation of the Committee, is 

the Secretary, Department of Information 

Technology, to pass the final order. Under Rule 

10, in the case of an order of a competent court in 

India, the Designated Officer shall, on receipt of a 

certified copy of a court order, submit it to the 

Secretary, Department of Information Technology 

and then initiate action as directed by the Court. 

In addition to the above safeguards, under Rule 

14 a Review Committee shall meet at least once 

in two months and record its findings as to 

whether directions issued are in accordance with 

Section 69A(1) and if it is of the contrary 

opinion, the Review Committee may set aside 

such directions and issue orders to unblock the 

said information. Under Rule 16, strict 

confidentiality shall be maintained regarding all 

the requests and complaints received and actions 

taken thereof. 

108. Learned counsel for the petitioners assailed 

the constitutional validity of Section 69A, and 

assailed the validity of the 2009 Rules. According 

to learned counsel, there is no pre-decisional 

hearing afforded by the Rules particularly to the 

“originator” of information, which is defined 

under Section 2(za) of the Act to mean a person 

who sends, generates, stores or transmits any 

electronic message; or causes any electronic 

message to be sent, generated, stored or 

transmitted to any other person. Further, 

procedural safeguards such as which are provided 

under Section 95 and 96 of the Code of Criminal 

Procedure are not available here. Also, the 

confidentiality provision was assailed stating that 

it affects the fundamental rights of the petitioners. 

83 



109. It will be noticed that Section 69A unlike 

Section 66A is a narrowly drawn provision with 

several safeguards. First and foremost, blocking 

can only be resorted to where the Central 

Government is satisfied that it is necessary so to 

do. Secondly, such necessity is relatable only to 

some of the subjects set out in Article 19(2). 

Thirdly, reasons have to be recorded in writing in 

such blocking order so that they may be assailed 

in a writ petition under Article 226 of the 

Constitution. 

110. The Rules further provide for a hearing 

before the Committee set up – which Committee 

then looks into whether or not it is necessary to 

block such information. It is only when the 

Committee finds that there is such a necessity that 

a blocking order is made. It is also clear from an 

examination of Rule 8 that it is not merely the 

intermediary who may be heard. If the “person” 

i.e. the originator is identified he is also to be 

heard before a blocking order is passed. Above 

all, it is only after these procedural safeguards are 

met that blocking orders are made and in case 

there is a certified copy of a court order, only 

then can such blocking order also be made. It is 

only an intermediary who finally fails to comply 

with the directions issued who is punishable 

under sub-section (3) of Section 69A. 

111. Merely because certain additional safeguards 

such as those found in Section 95 and 96 CrPC 

are not available does not make the Rules 

constitutionally infirm. We are of the view that 

the Rules are not constitutionally infirm in any 

manner. 

Section 79 and the Information Technology 

(Intermediary Guidelines) Rules, 2011. 

112. Section 79 belongs to Chapter XII of the Act 

in which intermediaries are exempt from liability 

if they fulfill the conditions of the Section. 

Section 79 states: 

“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 – 

(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.]” 

113. 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 herein-below:- 


84


“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 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.” 

114. Learned counsel for the petitioners assailed 

Rules 3(2) and 3(4) on two basic 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. Further, no safeguards are 

provided as in the 2009 Rules made under 

Section 69A. Also, for the very reasons that 

Section 66A is bad, the petitioners assailed subrule 

(2) of Rule 3 saying that it is vague and over 

broad and has no relation with the subjects 

specified under Article 19(2). 

115. One of the petitioners’ counsel also assailed 

Section 79(3)(b) to the extent that it makes the 

intermediary exercise its own judgment upon 

receiving actual knowledge that any information 

is being used to commit unlawful acts. Further, 

the expression “unlawful acts” also goes way 

beyond the specified subjects delineated in 

Article 19(2). 

116. It must first be appreciated that Section 79 is an 

exemption provision. Being an exemption 

provision, it is closely related to provisions which 

provide for offences including Section 69A. We 

have seen how under Section 69A blocking can 

take place only by a reasoned order after 

complying with several procedural safeguards 

including a hearing to the originator and 

intermediary. We have also seen how there are 

only two ways in which a blocking order can be 

passed – one by the Designated Officer after 

complying with the 2009 Rules and the other by 

the Designated Officer when he has to follow an 

order passed by a competent court. The 

intermediary applying its own mind to whether 

information should or should not be blocked is 

noticeably absent in Section 69A read with 2009 

Rules. 


85 



117. 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). 


118. The learned Additional Solicitor General 

informed us that it is a common practice 

worldwide for intermediaries to have user 

agreements containing what is stated in Rule 3(2). 

However, Rule 3(4) needs to be read down in the 

same manner as Section 79(3)(b). The knowledge 

spoken of in the said sub-rule must only be 

through the medium of a court order. Subject to 

this, the Information Technology (Intermediaries 

Guidelines) Rules, 2011 are valid. 

119. In conclusion, we may summarize what has 

been held by us above: 

(a) Section 66A of the Information 

Technology Act, 2000 is struck down in 

its entirety being violative of Article 

19(1)(a) and not saved under Article 

19(2). 

(b) Section 69A and the Information 

Technology (Procedure & Safeguards for 

Blocking for Access of Information by 

Public) Rules 2009 are constitutionally 

valid. 

(c) Section 79 is valid subject to Section 

79(3)(b) being read down to mean that an 

intermediary upon receiving actual 

knowledge from a court order or on being 

notified by the appropriate government or 

its agency that unlawful acts relatable to 

Article 19(2) are going to be committed 

then fails to expeditiously remove or 

disable access to such material. Similarly, 

the Information Technology “Intermediary 

Guidelines” Rules, 2011 are valid subject 

to Rule 3 sub-rule (4) being read down in 

the same manner as indicated in the 

judgment. 

(d) Section 118(d) of the Kerala Police Act is 

struck down being violative of Article 

19(1)(a) and not saved by Article 19(2). 

All the writ petitions are disposed in the above 

terms. 

* * * * * 

FORM IV 

(See Rule 8) 

Statement about ownership and other particulars of newspaper 

LAW ANIMATED WORLD 

1. Place of Publication HYDERABAD 

2. Periodicity of Publication Fortnightly 

3. Printer’s name, nationality 

and address 

4. Publisher’s name, nationality 

and address 

5. Editor’s name, nationality and 

address 

6. Names and addresses of 

individuals who own the 

newspaper and partners or 

shareholders holding 

I. BALAMANI, 

INDIAN, 6-3-1243/156, 

M.S. Makta, 

HYDERABAD - 500 082. 

I. BALAMANI, 

INDIAN, 6-3-1243/156, 

M.S. Makta, 


I. MALLIKARJUNA 

SHARMA, INDIAN, 

6-3-1243/156, M.S. Makta, 


I. BALAMANI, 

INDIAN, Sole Owner, 

6-3-1243/156, 

M.S. Makta, 


I, I. BALAMANI, hereby declare that the particulars given 

above are true to the best of my knowledge and belief. 

Date: 31-03-2015 

Sd/- I. Balamani 

Signature of Publisher 


86

(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC] F-145 

(2015) 1 LAW F-145 (NZ-SC) 

SUPREME COURT OF 

NEW ZEALAND AT 

WELLINGTON 

SC 5/2014 

Friday, 13 March 2015 

Between: 

Quake Outcasts … Appellants 

versus 

The Minister for Canterbury 

Earthquake Recovery & Ors. … Respondents. 

and FOWLER DEVELOPMENTS LTD v 

THE CHIEF EXECUTIVE OF THE CANTERBURY 

EARTHQUAKE RECOVERY AUTHORITY 

(SC 8/2014) 

Citation: [2015] NZSC 27 ♣ 

= (2015) 1 LAW F-145 

* * * 

13 March 2015 

QUAKE OUTCASTS v MINISTER FOR 

CANTERBURY EARTHQUAKE RECOVERY 

(SC 5/2014) 

FOWLER DEVELOPMENTS LTD v THE CHIEF 

EXECUTIVE OF THE CANTERBURY 

EARTHQUAKE RECOVERY AUTHORITY 

(SC 8/2014) 

[2015] NZSC 27 

PRESS SUMMARY 

The Canterbury region suffered a series of 

significant earthquakes and aftershocks in 2010 and 

2011. The first major earthquake was on 4 September 

2010, causing extensive property damage and some 

injuries. The earthquake of 22 February 2011 was 

particularly devastating and resulted in 185 deaths and 

thousands of injuries. In addition, the February 

earthquake caused significant additional property 

damage, extensive damage to infrastructure and 

widespread liquefaction. 

♣ Courtesy: www.courtsofnz.govt.nz., PO Box 61, Wellington, 

New Zealand; the press summary is provided to assist in 

the understanding of the Court’s judgment. It does not 

comprise part of the reasons for that judgment. The full 

judgment with reasons is the only authoritative document. 

Contact person: Gordon Thatcher, Supreme Court 

Registrar (04) 471 6921. Emphases ours - IMS. 

After another significant earthquake on 13 June 

2011, Cabinet authorised a committee of senior 

Ministers to make decisions on land damage and 

remediation issues. The decisions of the Cabinet 

committee were announced to the public on 23 June 

2011. 

The committee categorised greater Christchurch into 

four zones, according to the extent of land damage 

and the prospects of remediation. As well as 

identifying the four zones, the Cabinet committee 

decided that there would be an offer to purchase 

insured residential properties in the red zones, which 

were characterised by the committee as areas where 

“rebuilding may not occur in the short-to-medium 

term”. 

Owners of insured properties in the red zone were 

given two options: 

(a) purchase of their properties at 100 per cent of the 

most recent (2007) rating valuation (land and 

improvements), with all insurance claims against the 

Earthquake Commission (EQC) and private insurers 

to be assigned to the Crown; or 

(b) purchase of the land only at 100 per cent of the most 

recent rating valuation, with the owner assigning all 

insurance claims against the EQC for the land to the 

Crown but retaining the benefit of all insurance 

claims relating to improvements. 

The position of owners of a number of other 

categories of property in the red zones (including of 

owners of uninsured residential properties and owners 

of uninsurable bare residential land) was not 

addressed until September 2012. In essence, the offer 

approved for those two groups by Cabinet was at 50 per cent 

of the 2007 rating value for the land only component of the 

properties and not the land and improvements. 

The appellants, Quake Outcasts and Fowler 

Developments Ltd, issued proceedings for judicial 

review challenging the lawfulness of the 50 per cent 

offers on the basis that they were not made in 

accordance with the Canterbury Earthquake Recovery 

Act 2011 (the Act). It was also alleged that the offers 

were oppressive, disproportionate and in breach of their 

human rights. 

Quake Outcasts and Fowler Developments largely 

succeeded in the High Court. In the Court of Appeal, the 

September 2012 offer to purchase the properties of owners of 

vacant land and owners of uninsured improved properties in 

the red zone was held to be unlawful because of noncompliance 

with the Act and in particular s 10 of the Act. The 

Court of Appeal made a declaration to that effect. The 

87 


F-146 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC] (2015) 1 LAW 

chief executive was therefore directed to reconsider the 

offers. The Court held, however, that any substitute 

offers could lawfully distinguish between owners on the 

basis of their insurance cover. 

There was no appeal by the Crown against the 

determination of the Court of Appeal that the chief 

executive must reconsider the offers in accordance with 

the Act. Rather, the appellants applied for leave to 

appeal against the Court of Appeal’s refusal to declare 

that the June 2011 establishment of the red zones was 

unlawful under the Act. The appellants also sought to 

argue that the Court of Appeal was wrong to hold that an 

offeree’s insurance status could lawfully be taken into 

account in making any substitute offers. 

On 5 May 2014, this Court granted leave to appeal in 

both cases on the following questions: 

(a) Was the establishment of the Residential Red Zones 

in Christchurch lawful as being a legitimate exercise 

of any common law powers or “residual freedom” 

the Crown may have, given the terms of the 

Canterbury Earthquake Recovery Act 2011? 

(b) Were the offers made by the Crown to Residential 

Red Zone property owners under s 53 of the 

Canterbury Earthquake Recovery Act 2011 lawfully 

made? In particular: 

(i) Was there a material failure to comply with the 

Act? 

(ii) Was there a rational basis for the distinction 

drawn between those owners who were insured 

and those who were uninsured? 

The Supreme Court, by majority comprising McGrath, 

Glazebrook and Arnold JJ, has allowed the appeal in part. 

The Chief Justice and William Young J have dissented. 

The majority judgment deals with four issues. The first 

concerns the Crown submission that it was merely providing 

information about the condition of land in certain areas in the 

June 2011 announcements. The majority of the Court has 

held that the Crown was not merely providing 

information when identifying the red zones. Instead, 

the Crown made decisions on a number of important 

matters, including that there should be a central 

government response. 

The second issue was whether the procedures under the 

Canterbury Earthquake Recovery Act should have been used. 

The majority has held that they should have been. The Act 

provides a comprehensive regime to deal with earthquake 

recovery. This includes the promulgation of a Recovery 

Strategy for the region. The majority has held that the 

zoning and related decisions should have been dealt with 

under the Recovery Strategy. Given the Cabinet 

committee’s objective of acting quickly to restore 

confidence, it was, however, not feasible to wait for the 

promulgation of the Recovery Strategy. 

The Act does provide a mechanism to deal with the need 

for urgent decisions by allowing Recovery Plans to precede 

the Recovery Strategy. The June 2011 decisions involved 

important earthquake recovery measures and a Recovery Plan 

was the appropriate mechanism for implementing the 

Crown’s land classification decisions. Given the close 

relationship between the zoning decisions and the purchase 

offers and the area wide approach, the majority has concluded 

that at least the broad outlines of the purchasedecisions should 

also have been dealt with under the Recovery Plan processes. 

The majority has held that the s 53 purchase powers could 

not lawfully have been used, absent a Recovery Plan. 

The third issue concerned the matters that were relevant to 

the September 2012 decisions relating to the uninsured and 

uninsurable properties. The majority has concluded that, 

although insurance status was not an irrelevant consideration, 

other relevant considerations weighed against insurance cover 

(or lack thereof) being a determinative factor. For example, the 

fact that many of those whowereinsuredwere anticipated to 

be paid more than the insured value of their properties was a 

relevant factor and should have been taken into account. The 

majority has also held that the recovery purposes of the Act 

were not properly considered. Additionally, the majority 

has held that the failure of process and consultation in June 

2011, the delay in extending the offer to the appellants, and the 

very difficult living conditions faced by those living in the red 

zones were relevant factors that should have been taken into 

account when making offers to the appellants. 

The final issue dealt with by the majority is the appropriate 

relief. While the majority has held that the June 2011 

red zone measures should have been introduced under 

a Recovery Plan, it is now too late for this to occur. 

As a result, a declaration as to the unlawfulness of the June 

2011 decisions would not serve any useful purpose and 

therefore none is made. However, the majority has made a 

declaration that the decisions relating to the uninsured and 

uninsurable in September 2012 were not lawfully made and 

that the Minister and the chief executive of the Canterbury 

Earthquake Recovery Authority should be directed to 

reconsider their decisions in light of this judgment. 

The Chief Justice and William Young J would have 

dismissed the appeal. The Chief Justice considered that s 53 

of the Act was able to be used for the purchases without an 

overarching Recovery Strategy or Recovery Plan. She said 

that the extent to which the difference between offers to the 

insured and those to the uninsured and uninsurable can be 

justified remains something for assessment in the context of 

a proper consideration under ss 10 and 3 of the Act. 

William Young J concluded that it was not mandatory for 

the Crown to proceed by way of a Recovery Plan. He 

considered that it would be open to the Crown, having taken 

into account all other relevant considerations, to structure its 

new offers around the insurance status of the offerees. 

* * * 


(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC] F-147 

IN THE SUPREME COURT 

OF NEW ZEALAND 

SC 5/2014 

[2015] NZSC 27 

BETWEEN 

AND 

QUAKE OUTCASTS 

Appellants 

THE MINISTER FOR CANTERBURY 

EARTHQUAKE RECOVERY 

First Respondent 

THE CHIEF EXECUTIVE OF THE 

CANTERBURY EARTHQUAKE 

RECOVERY AUTHORITY 

Second Respondent 

FOWLER DEVELOPMENTS 

LIMITED 

Third Respondent 

HUMAN RIGHTS COMMISSIONER 

Intervener 

Judgment: 13 March 2015 

A. The appeal is allowed in part. 

B. There is a declaration that the September 

2012 decisions relating to uninsured 

improved residential property owners and 

to vacant residential land owners in the red 

zones were not lawfully made. 

C. The first and second respondents in SC 

5/2014 and the respondent in SC 8/2014 are 

directed to reconsider their decisions in light 

of this judgment. 

D. Leave is reserved to apply for any 

supplementary or consequential orders. 

E. The first and second respondents in SC 

5/2014 are to pay to the appellants costs of 

$40,000 plus usual disbursements. We 

certify for three counsel. 

F. The respondent in SC 8/2014 is to pay to the 

appellant costs of $20,000 plus usual 

disbursements. We certify for two counsel. 

REASONS 

Para starting 

McGrath, Glazebrook and Arnold JJ [1] 

Elias CJ [212] 

William Young J [289] 

* * * 

Table of Contents 

Para No 

Introduction [1] 

Canterbury Earthquake Recovery Act [13] 

Legislative history [30] 

Further background [39] 

CERA work [42] 

Cabinet committee’s decisions [45] 

Purchase offers [60] 

Consultation [62] 

Recovery strategy [64] 

Offers relating to other categories of [69] 

property 

Current position of Quake Outcasts [86] 

group 

Submissions [89] 

Quake Outcasts’ submissions [89] 

Fowler Developments’ submissions [93] 

Human Rights Commission’s 

[97] 

submissions 

Crown’s submissions [100] 

Issues [105] 

Was the Crown merely providing [106] 

information in June 2011? 

Should the procedures under the [109] 

Canterbury Earthquake Recovery Act 

have been used? 

Does the Act cover the field? [110] 

What procedures under the Act [122] 

should have been used? 

Use of s 53 of the Act? [138] 

Funding decisions? [142] 

Conclusion [146] 

What matters were relevant to the [147] 

September 2012 decisions? 

Was the insurance status of the [148] 

properties relevant? 

Were the purposes of the Act properly [172] 

considered? 

What should be the effect of the delay? [182] 

CONCLUSION [189] 

RELIEF [200] 

Parties’ submissions [200] 

Discussion [203] 

Result and costs [206] 

* * * 

89 


F-148 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] (2015) 1 LAW 

McGRATH, GLAZEBROOK AND ARNOLD JJ 

(Given by Glazebrook J) 

INTRODUCTION 

[1] The Canterbury region suffered a series of 

significant earthquakes and aftershocks in 2010 

and 2011. The first major earthquake was on 4 

September 2010 and resulted in extensive 

property damage and some injuries. A further 

major earthquake on 22 February 2011 was 

particularly devastating, resulting in 185 deaths 

and thousands of injuries. In addition, the 

February earthquake caused significant additional 

property damage, extensive damage to 

infrastructure and widespread liquefaction. 

[2] After a third significant earthquake on 13 June 

2011, Cabinet authorised a committee of senior 

Ministers to make decisions on land damage and 

remediation issues. On 22 June 2011, a number of 

decisions were recorded in a memorandum for 

Cabinet signed by the Hon Gerry Brownlee dated 

24 June 2011. The decisions were announced to 

the public by the Prime Minister and the Hon 

Gerry Brownlee on 23 June 2011. 

[3] The Cabinet committee categorised greater 

Christchurch into four zones according to the 

extent of land damage and the prospects of 

remediation. As well as identifying the four zones, 

the Cabinet committee decided that there would be 

an offer to purchase insured residential properties 

in the red zones, which were characterised by the 

Committee as areas where “rebuilding may not 

occur in the short-to-medium term”. 

[4] Owners of insured properties in the red zone 

were to be given two options: 

(a) purchase by the Crown of their entire property 

at 100 per cent of the most recent (2007) rating 

valuation for the properties (land and 

improvements), with all insurance claims 

against the Earthquake Commission (EQC) 1 

1 In 1993, the Earthquake Commission Act 1993 replaced 

the Earthquake and War Damage Commission with the 

Earthquake Commission (EQC). A residential home 

owner with a private insurance policy that includes fire 

insurance is insured against natural disasters by the EQC. 

As a result, if there is no insurance policy covering 

fire, there is no EQC cover. For more information on the 

and private insurers to be assigned to the 

Crown; 2 or 

(b) purchase by the Crown of the land only at 100 

per cent of the most recent (2007) rating 

valuation for the land only component of their 

properties, with the owner assigning all 

insurance claims against the EQC for the land 

to the Crown but retaining the benefit of all 

insurance claims relating to improvements. 

[5] Property owners were to be given a ninemonth 

period to decide whether they wanted to 

accept the offer. If they did accept, they could 

defer settlement of the purchase up to 30 April 

2013. 3 Offers were subsequently made by the 

Canterbury Earthquake Recovery Authority 

(CERA) to owners of insured properties in the red 

zone under s 53 of the Canterbury Earthquake 

Recovery Act 2011 (the Act). 4 

[6] The position of owners of some other 

categories of property in the red zones (including 

of owners of uninsured improved residential 

properties and owners of uninsurable bare 

residential land) was not addressed until 

September 2012. In essence, the offer approved 

for those two groups by Cabinet was at 50 per 

cent of the 2007 rating value for the land 

component only of the properties and not the land 

and improvements. 5 

details of EQC cover, see and 

ss 18–31 of the Earthquake Commission Act. 

2 This option allowed a process through which any property 

owners who considered that there was a material 

discrepancy between the 2007 rating valuations and the 

market value of their property (for example because of 

subsequent improvements) could raise their concerns. 

3 As the expiry date for the June 2011 offer loomed, there 

were still over a thousand property owners who had not 

yet returned their signed sale and purchase agreements. 

Many of them were waiting for more information from 

insurance companies and/or the EQC. On 26 March 2012, 

Cabinet authorised the Minister to extend, as appropriate, 

the nine-month offer period and the final settlement date 

of 30 April 2013. 

4 See below at [60]-[61]. 

5 See Cabinet Business Committee (Minute of Decision) 

“Canterbury Earthquake: Red Zone Purchase Offers for 

Residential Leasehold, Vacant, Uninsured, and Commercial 


(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] F-149 

[7] The appellants, Quake Outcasts and Fowler 

Developments Ltd, issued proceedings for 

judicial review (heard together in the High Court) 

challenging the lawfulness of the 50 per cent 

offers, alleging that they were not made in 

accordance with the Act. It was also alleged that 

the offers were oppressive, disproportionate and 

that they breached the appellants’ human rights. 

[8] Quake Outcasts is an unincorporated group of 

some 46 6 individual or joint-owners of uninsured 

improved properties, or vacant land 7 in the red 

zone. Fowler Developments is a property 

development company and is the owner of 11 

residential sections in Brooklands, which was 

zoned red in November 2011. 8 

[9] Quake Outcasts and Fowler Developments 

largely succeeded in the High Court. Panckhurst J 

held that the June 2011 decision creating the red 

/Industrial Properties” (3 September 2012) CBC Min (12) 

6/3. As the title of the minute suggests, the decision dealt 

with offers to insured residential leasehold properties 

occupied under perpetually renewable leases on land 

owned by the Waimakariri District Council, 

commercial/industrial properties and residential 

properties with no insurance (vacant land and uninsured 

properties with improvements). 

6 The High Court and Court of Appeal judgments 

record that Quake Outcasts comprises 46 individual 

or joint-owners: see Fowler Developments Ltd v 

Chief Executive of the Canterbury Earthquake 

Recovery Authority [2013] NZHC 2173, [2014] 2 

NZLR 54 (Panckhurst J) [Quake Outcasts (HC)] at 

[8] and Minister for Canterbury Earthquake 

Recovery v Fowler Developments Ltd [2013] NZCA 

588, [2014] 2 NZLR 587 (O’Regan P, Ellen France 

and Stevens JJ) [Quake Outcasts (CA)] at [9]. 

However, at the hearing Mr Cooke QC, counsel for 

Quake Outcasts, indicated to the Court that there 

were 45 in the group. This discrepancy is noted but 

is immaterial for present purposes. 

7 One or more of the group may have had uninsured 

commercial properties but there was no focus in the 

argument on the situation of commercial properties. 

8 In June 2011 these sections had been zoned orange, being 

in an area where further work was required to determine if 

remedial work was feasible in the short-to-medium term. 

zones was not lawfully made. 9 The Minister’s 

announcement of the September 2012 decision 

and the 50 per cent offers made pursuant to that 

decision were set aside. 10 

[10] The Court of Appeal allowed the Crown’s 

appeal in relation to the June 2011 decision. 11 

The Court of Appeal did not see it as appropriate 

to provide relief in respect of the Minister’s 

announcement of the September 2012 decision. 12 

The September 2012 offer to purchase the 

properties of owners of vacant land and owners of 

uninsured improved properties in the red zone 

was, however, held to be unlawful because of 

non-compliance with the Act and in particular s 

10 of that Act. 13 The Court of Appeal made a 

declaration to that effect. 14 The Court accepted, 

however, that there was a rational basis for 

distinguishing between property owners on the 

basis of their insurance cover. 15 

[11] On 5 May 2014, this Court granted leave to 

appeal 16 in both cases on the following questions: 

(a) Was the establishment of the Residential 

Red Zones in Christchurch lawful as being a 

9 See Quake Outcasts (HC), above n 6, at [78]. There was a 

subsequent costs judgment: Fowler Developments Ltd v 

Chief Executive of the Canterbury Earthquake Recovery 

Authority [2013] NZHC 2636 (Panckhurst J) [Quake 

Outcasts (Costs)]. 

10 

Quake Outcasts (HC), above n 6, at [100]. 

Panckhurst J directed the Minister for Canterbury 

Earthquake Recovery (the Minister) and the chief 

executive of CERA to reach a new decision to 

purchase the appellants’ properties in accordance 

with the principles of the Canterbury Earthquake 

Recovery Act 2011 and with regard to the reasons 

contained in his judgment: at [102]. 

11 Quake Outcasts (CA), above n 6, at [133]. 

12 At [156]-[157]. 

13 At [153]. The Court of Appeal stated “[w]e prefer to 

approach the matter by focusing on the statutory decision 

of the Chief Executive to which the requirements of the 

Act applied”: at [157]. 

14 At [167] and [168]. 

15 At [150]. 

16 Quake Outcasts v Minister for Canterbury Earthquake 

Recovery [2014] NZSC 51. 

91 


F-150 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] (2015) 1 LAW 

legitimate exercise of any common law powers 

or “residual freedom” the Crown may have, 

given the terms of the Canterbury Earthquake 

Recovery Act 2011? 

(b) Were the offers made by the Crown to 

Residential Red Zone property owners under s 

53 of the Canterbury Earthquake Recovery Act 

2011 lawfully made? In particular: 

(i) Was there a material failure to comply 

with the Act? 

(ii) Was there a rational basis for the 

distinction drawn between those owners 

who were insured and those who were 

uninsured? 

[12] Before dealing with those questions, we 

canvas the relevant legislation, the legislative 

history and the factual background in more detail. 

We then summarise the parties’ submissions and 

identify the issues arising from those 

submissions. 

Canterbury Earthquake Recovery Act 

[13] The Canterbury Earthquake Recovery Act 

was passed by Parliament under urgency in 

response to the February 2011 earthquake. 17 It 

sets a framework for earthquake response 

measures to be coordinated, with a particular 

emphasis on the roles of the Minister for 

Canterbury Earthquake Recovery (the Minister) 

and CERA and its chief executive. 

[14] Part 1 of the Act, headed “Preliminary 

Provisions”, contains a definition section and 

provides that the Act binds the Crown. 18 The 

purposes of the Act are set out as: 19 

17 

(a) to provide appropriate measures to ensure 

that greater Christchurch and the councils 

and their communities respond to, and 

recover from, the impacts of the Canterbury 

earthquakes: 

This Act, by s 89(1), repealed and replaced the 

Canterbury Earthquake Response and Recovery Act 

2010 which had been passed after the September 2010 

Canterbury earthquake. 

18 Canterbury Earthquake Recovery Act, s 5. 

19 Section 3. 

(b) to enable community participation in the 

planning of the recovery of affected 

communities without impeding a focused, 

timely, and expedited recovery: 

(c) to provide for the Minister and CERA to 

ensure that recovery: 

(d) to enable a focused, timely, and expedited 

recovery: 

(e) to enable information to be gathered about 

any land, structure, or infrastructure affected 

by the Canterbury earthquakes: 

(f) to facilitate, co-ordinate, and direct the 

planning, rebuilding, and recovery of 

affected communities, including the repair 

and rebuilding of land, infrastructure, and 

other property: 

(g) to restore the social, economic, cultural, and 

environmental well-being of greater 

Christchurch communities: 

(h) to provide adequate statutory power for the 

purposes stated in paragraphs (a) to (g): 

(i) to repeal and replace the Canterbury 

Earthquake Response and Recovery Act 

2010. 

[15] Part 2, headed “Functions and powers to 

assist recovery and rebuilding”, is divided into a 

number of subparts. Subpart 1 provides for input 

into decision-making by the community. It 

provides that the Minister must arrange for a 

community forum that meets at least six times a 

year, and that at least 20 suitably qualified 

persons must be invited to participate. 20 The 

Minister and the chief executive of CERA must 

have regard to information or advice provided by 

the forum. 21 In addition, the Minister must 

arrange a cross-party parliamentary forum from 

time to time and invite the attendance of members 

of Parliament who reside in greater Christchurch 

or represent constituencies in the greater 

Christchurch area. 22 

20 Section 6(1)-(3). 

21 Section 6(4). 

22 Section 7. “[G]reater Christchurch” is defined in s 4 

as “the districts of the Christchurch City Council, 

the Selwyn District Council, and the Waimakriri District 


(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] F-151 

[16] Subpart 2 sets out the functions of the 

Minister and the chief executive. Among other 

powers, the Minister is given the power to 

suspend, amend or revoke the whole or parts of 

Resource Management Act 1991 (RMA) 

documents, resource consents and other 

instruments applying in greater Christchurch. 23 

The Minister may also give directions to councils 

and council organisations, 24 compulsorily acquire 

land (in accordance with subpt 4), and determine 

the compensation payable for such acquisitions 

and for the demolition of buildings (in 

accordance with subpt 5). 25 

[17] The Minister must appoint a Canterbury 

Earthquake Recovery Review Panel of four 

suitable persons to provide advice in relation to 

delegated legislation made under the Act. 26 The 

Minister must also provide quarterly reports and 

an annual review to Parliament concerning the 

exercise of powers under, and the operation and 

effectiveness of, the Act. 27 The Minister is also 

tasked with recommending for approval a 

Recovery Strategy for greater Christchurch, as 

well as reviewing and approving any changes to 

that Strategy. 28 The Minister must also direct the 

development of Recovery Plans, direct the 

matters to be covered by the Recovery Plans, and 

approve and review any changes of Recovery 

Plans for all or part of greater Christchurch. 29 

[18] The chief executive is responsible for 

commissioning and disseminating information, 

controlling building, demolition and removal 

work, closing and restricting access to roads and 

acquiring and disposing of land and property, 

amongst other matters. 30 In addition, the chief 

Council, and includes the coastal marine area adjacent to 

these districts”. 

23 Section 8(f). 

24 Section 8(g)-(h). 

25 Section 8(j)-(k). 

26 Sections 8(l), 72, 73, 74, 75 and 76. 

27 Sections 8(m), 88 and 92. 

28 Section 8(b)-(c). 

29 Section 8(d)-(e). 

30 Section 9. 

executive must develop a Recovery Strategy for 

submission to the Minister and develop a 

Recovery Plan if directed to do so by the 

Minister. 31 

[19] Section 10 makes it clear that any powers, 

rights and privileges under the Act must be 

exercised in accordance with the purposes of the 

Act and are only to be used when it is reasonably 

considered necessary to do so. Section 10 states: 

“10. Powers to be exercised for purposes of this Act 

(1) The Minister and the chief executive must 

ensure that when they each exercise or claim 

their powers, rights, and privileges under this 

Act they do so in accordance with the 

purposes of the Act. 

(2) The Minister and the chief executive may 

each exercise or claim a power, right, or 

privilege under this Act where he or she 

reasonably considers it necessary. 

…” 

[20] Subpart 3 is headed “Development and 

implementation of planning instruments”. Section 

11 provides that the chief executive is to develop 

a draft Recovery Strategy for consideration by the 

Minister. The Governor-General by Order in 

Council, on the recommendation of the Minister, 

may approve the strategy. The aim and content of 

the Recovery Strategy is described in s 11(3): 

“(3) The Recovery Strategy is an overarching, 

long-term strategy for the reconstruction, 

rebuilding, and recovery of greater Christchurch, 

and may (without limitation) include provisions 

to address – 

(a) the areas where rebuilding or other 

redevelopment may or may not occur, and 

the possible sequencing of rebuilding or 

other redevelopment: 

(b) the location of existing and future 

infrastructure and the possible sequencing 

of repairs, rebuilding, and reconstruction: 

(c) the nature of the Recovery Plans that may 

need to be developed and the relationship 

between the plans: 

31 Section 9(a) and (c). 

93 



(d) any additional matters to be addressed in 

particular Recovery Plans, including who 

should lead the development of the 

plans.” 

[21] The Recovery Strategy is required to be 

developed in consultation with Christchurch City 

Council, Environment Canterbury, Selwyn 

District Council, Waimakariri District Council, 

Te Rūnanga o Ngāi Tahu, and any other persons 

or organisations that the Minister considers 

appropriate; 32 and the Act requires a draft to be 

prepared within nine months of the Act coming 

into force. 33 The development process has to 

include one or more public hearings. 34 The draft 

is to be publicly notified and members of the 

public given the opportunity to make written 

comments on the document. 35 

[22] The effect of a Recovery Strategy, as provided 

in s 15, is that: 

“(1) No RMA document or instrument referred 

to in section 26(2), including any amendment to 

the document or instrument, that applies to any 

area within greater Christchurch may be 

interpreted or applied in a way that is 

inconsistent with a Recovery Strategy. 

(2) On and from the commencement of the 

approval of a Recovery Strategy, the Recovery 

Strategy— 

(a) is to be read together with and forms part 

of the document or instrument; and 

(b) prevails where there is any inconsistency 

between it and the document or 

instrument. 

(3) No provision of the Recovery Strategy, as 

incorporated in an RMA document under 

subsection (2)(a), may be reviewed, changed, or 

varied under Schedule 1 of the Resource 

Management Act 1991.” 

[23] Sections 16 to 26 govern Recovery Plans. 

Section 16 provides that the Minister may direct 

responsible entities to develop a Recovery Plan 

32 Section 11(4). 

33 Section 12(2). 

34 Section 12(1). 

35 Section 13. 

for all or part of greater Christchurch. 36 Section 

16 provides: 

“16 Recovery Plans generally 

(1) The Minister may direct 1 or more 

responsible entities to develop a Recovery Plan 

for all or part of greater Christchurch for his or 

her approval. 

(2) The direction must specify the matters to be 

dealt with by the Recovery Plan, which matters 

may include provision, on a site-specific or wider 

geographic basis within greater Christchurch, for 

– 

(a) any social, economic, cultural, or 

environmental matter: 

(b) any particular infrastructure, work, or 

activity. 

(3) A responsible entity may request that the 

Minister direct it to develop a Recovery Plan. 

(4) Where the Minister directs the development 

of a Recovery Plan, he or she must ensure that 

the direction is notified in the Gazette together 

with a list of all other Recovery Plans being 

developed or in force.” 

[24] A Recovery Plan must be consistent with the 

Recovery Strategy, but may be developed and 

approved before a Recovery Strategy is 

approved. 37 If a Recovery Plan is developed 

before the Recovery Strategy is approved, the 

Minister must direct that the Plan be reviewed 

and amended to ensure it is consistent with the 

Recovery Strategy. 38 

[25] Neither the Minister nor any responsible 

entity has a duty to consult with regard to 

Recovery Plans, except in accordance with s 

20(2) and (3), which provides for public 

notification of any Recovery Plan and the ability 

36 Canterbury Earthquake Recovery Act, s 16(1). The only 

compulsory Recovery Plan is for the CBD: see s 17(1). 

The CBD is defined under s 4 as the area bounded by 

four specified avenues. A “responsible entity” is defined 

in s 4 as meaning “the chief executive, a council, a 

council organisation, a department of the Public Service, 

an instrument of the Crown, a Crown entity, a requiring 

authority, or a network utility operator”. 

37 Section 18(1) and (2). 

38 Section 18(3). 



of members of the public to make written 

submissions. 39 The Minister otherwise may 

determine how Recovery Plans are to be 

developed and the extent of any consultation or 

public hearings, 40 taking into account, under s 

19(2), the following: 

“(a) the nature and scope of the Recovery Plan; 

and 

(b) the needs of people affected by it; and 

(c) the possible funding implications and the 

sources of funding; and 

(d) the New Zealand Disability Strategy; and 

(e) the need to act expeditiously; and 

(f) the need to ensure that the Recovery Plan is 

consistent with other Recovery Plans.” 

[26] Once a Recovery Plan has been developed 

and approved by the Minister following 

consultation and any public meetings, the plan is 

binding. Section 23 provides that a Recovery Plan 

restricts the exercise of functions and powers 

under the RMA in that a variety of decisions, or 

recommendations, may not be made if 

inconsistent with the plan. Section 27 enables the 

Minister to, by public notice, suspend, amend or 

revoke a range of controls within the greater 

Christchurch area, including resource 

management, local government, land transport 

and conservation controls. 

[27] Subpart 4, among other things, governs 

information gathering and dissemination, the 

control of building works and the power to 

acquire and dispose of property. Section 53 

empowers the chief executive to purchase land 

and personal property in the name of the Crown. 

Section 54 empowers the Minister to acquire land 

compulsorily in the name of the Crown, subject 

to the payment of compensation under subpt 5. 

[28] Subpart 5 provides for compensation where 

land is compulsorily acquired under the Act, or 

39 There are special added consultation requirements for the 

CBD Plan: see ss 17 and 20(1). 

40 Section 19(1). 

where a non-dangerous building is required to be 

demolished. 41 Section 67(1) provides that: 

67 No compensation except as provided by this Act 

(1) Nothing in this Act, apart from this subpart or 

section 40 or 41, confers any right to 

compensation or is to be relied on in any 

proceedings as a basis for any claim to 

compensation. 

[29] Subpart 6 specifies appeal rights against a 

decision of the Minister or the chief executive. 

Subpart 7 provides for delegated legislation and 

outlines the functions of the Canterbury 

Earthquake Recovery Review Panel. Subpart 8 

contains miscellaneous provisions such as those 

concerning compliance orders. 

Legislative history 

[30] The Canterbury Earthquake Recovery Bill 

was introduced on 12 April 2011 and completed 

its third reading on 14 April 2011. The Bill was 

introduced, and moved through the House, under 

urgency. 42 

[31] When introducing the Bill, the Minister for 

Canterbury Earthquake Recovery, the Hon Gerry 

Brownlee, described the powers vested in the 

Minister and the chief executive as “necessary to 

enable an effective, timely, and coordinated 

recovery for greater Christchurch”. 43 According 

to the Minister, the Bill “provides appropriate 

measures to enable Governments to facilitate and, 

if necessary, direct greater Christchurch and its 

communities to respond to, and recover from, the 

impacts of the two Canterbury earthquakes”. The 

Minister emphasised that the timely decisions 

41 Section 60. Section 41 also provides for compensation 

for damage to other property caused by a negligent 

demolition. 

42 See (12 April 2011) 671 NZPD 17898. Given this 

urgency, the Bill was not referred to a select committee 

for examination. Instead, the Local Government and 

Environment Committee was instructed to hear evidence 

only and was not empowered to recommend amendments 

to the Bill: see Local Government and Environment 

Committee Hearing of evidence on the Canterbury 

Earthquake Recovery Bill (14 April 2011) at 3. 

43 (12 April 2011) 671 NZPD 17899. 

95 



required would not be possible under the current 

legislation, whereas the processes set out in the 

Bill are “efficient while providing appropriate 

safeguards”. 44 Concluding his introductory 

speech, the Minister highlighted the purpose of 

the legislation and reassured the House that the 

powers would not go unchecked. The Minister 

said: 45 

“Overall, this bill enables the Government to 

move swiftly to restore the social and economic 

wellbeing of the greater Christchurch area and its 

affected communities. The checks and balances 

ensure that the necessary powers for recovery are 

used judiciously, are open to appropriate levels 

of public scrutiny, and provide for appeal.” 

[32] In essence, the purpose of the Bill was to put 

in place mechanisms for the effective recovery of 

the Christchurch region. As the Minister said: 46 

“In order to achieve the policy intent of effective 

and efficient rebuild and recovery in 

Christchurch, the legislation needs to ensure that 

the desired outcomes identified in the recovery 

strategy by the Christchurch Earthquake 

Recovery Agency [sic] and the Minister, which 

provides for the recovery plans, are able to be 

efficiently and effectively delivered on the 

ground.” 

[33] Much of the concern surrounding the Bill 

was due to the extensive powers to be vested in 

the Crown. In response to criticism that the 

powers granted under the Bill “go too far”, the 

Hon Kate Wilkinson, the then Minister for 

Conservation, said that that those fears had not 

been realised with the predecessor legislation (the 

Canterbury Earthquake Response and Recovery 

Act 2010) and that “[t]here are significant checks 

and balances to ensure that the powers are used 

properly, and are necessary for the Canterbury 

44 (12 April 2011) 671 NZPD 17899. See also the Minister’s 

comments at 18130 where he said “[t]his bill is an 

enabling framework setting out a range of powers that 

may need to be exercised during the recovery process. It 

does have significant checks and balances on the use of 

those powers.” 

45 At 17901. 

46 At 17899. 

recovery and rebuild”. 47 Mr Brownlee, during the 

Bill’s second reading, stated that the “most clear 

check and balance is the requirement that all of 

those powers must be exercised in the recovery 

process and cannot step outside of that”. 48 

[34] During the Bill’s second reading, Mr 

Brownlee also made the following comments 

about Recovery Plans. He said that: 49 

“The decisions that need to be made here are 

very, very dependent upon research about the 

condition of the land in Christchurch, and upon 

getting enough information to deal with 

individuals who have those broken properties so 

that they can be given some choices about what 

their future is. 

... All of those things will require a series of 

recovery plans, and, quite patently obviously, 

there will need to be discussion about how those 

plans are delivered with those local communities 

and those affected individuals.” 

[35] The need for community participation and 

consultation in the decision making processes, to 

the extent compatible with expedited recovery 

measures, was stressed. Ms Wilkinson, in 

recognising the need for efficiency and 

community input, said: 50 It is important that the 

need for community participation is balanced 

against the need for timely and effective decisionmaking. 

Cantabrians want a say in how their 

region is rebuilt. It is, after all, their region. This 

bill provides for the establishment of a 

community forum, made up of local 

representatives who will provide advice to the 

Minister. There will also be a public consultation 

process in place. Cantabrians want to be heard, 

but they want to see action. It is a matter of 

striking the balance between effective 

coordination and consultation and the need for 

progress. 

[36] A similar comment was made by Mr 

Brownlee when, during the second reading, he 

47 At 17904. 

48 At 18130. 

49 At 18130. 

50 At 17904. 



said “I sincerely think that having a structure that 

allows rapid decision-making that can give effect 

to decisions that the community is on board with 

is exactly what is required here”. 51 

[37] Mr Brownlee also emphasised the 

importance of the quarterly reports to Parliament 

required by the Bill. 52 He described the reporting 

requirement as a “significant control”. 53 

[38] In essence, while the Act granted extensive 

powers to the Crown to ensure the physical, social, 

economic, cultural and environmental recovery of 

greater Christchurch, the legislative history illustrates 

that the Crown was not to be granted unbridled power. 

Instead, the legislation provided for extensive checks 

and balances and ensured that community input was 

central, but not decisive, to decisions that would have 

significant implications for the communities of greater 

Christchurch. As the legislative history makes 

clear, the Recovery Strategy and the Recovery 

Plans were to be the central mechanism for 

Canterbury’s recovery. 

Further background 

[39] As noted above, the first of the series of 

Canterbury earthquakes occurred on 4 September 

2010. Further major earthquakes occurred on 22 

February 2011 and 13 June 2011. These and 

related earthquakes and aftershocks caused some 

areas of the city to experience liquefaction and 

land damage. In addition, some Christchurch 

properties, especially in the Port Hills area, were 

in danger from rock fall, cliff collapse and land 

slippage. 

[40] The Government responded to the first 

earthquake by appointing Mr Brownlee as the 

Minister for Canterbury Earthquake Recovery on 

7 September 2010. The Canterbury Earthquake 

Response and Recovery Act 2010 was introduced 

on 14 September 2010 and came into force on 

15 September 2010. 

[41] Following the February 2011 earthquake, the 

2010 Act was replaced by the Canterbury 

51 At 18129. 

52 See above at [17]. 

53 (12 April 2011) 671 NZPD 17901. 

Earthquake Recovery Act 2011 on 18 April 2011. 

CERA had been established as a new 

Government Department on 29 March 2011. 54 

The first chief executive of CERA was appointed 

on 13 June 2011. 55 

CERA work 

[42] From April 2011, officials from EQC, 

CERA and the Treasury began assessing the 

impact of land and property damage in the greater 

Christchurch area and identifying the worst 

affected areas. In identifying the land damage, 

extensive data was collected from sources such as 

Land Information New Zealand, land data from 

local councils, engineering teams, private 

surveyors and other engineering resources. 

Property data was collected from EQC and 

private insurers. On behalf of the EQC, Tonkin & 

Taylor (a firm of environmental and engineering 

consultants) was commissioned to assess the land 

damage caused by the 2010 and 2011 

earthquakes. 

[43] It was recognised that some areas may no 

longer be suitable for habitation. In discussing 

land “retirement”, an internal CERA paper 

prepared at the beginning of June 2011 identified 

options, which, the paper stated, were not “all 

mutually exclusive and so a combination may be 

appropriate”. The options were: 

(a) Voluntary or compulsory acquisition of 

property (under s 53 of the Canterbury 

Earthquake Recovery Act); 56 

(b) Using the power under s 27 of the Act to 

amend the land use zoning under the City Plan; 57 

54 State Sector (Canterbury Earthquake Recovery Authority) 

Order 2011. See also sch 1 of the State Sector Act 1988 

as amended with effect from 29 March 2011. 

55 This first chief executive resigned from his role as chief 

executive on 17 November 2014. 

56 The paper identified that the “pros” of this option were 

that it could “happen without the need for any further 

approvals and/or consultation” and that “[l]and use 

activities easily managed if in Crown ownership”. The 

“cons” were identified as “[l]ess community awareness 

and/or input into the process” and “[l]ess linkage to 

overall recovery strategy”. 

97 



(c) Using s 27 to remove existing use rights 

related to the land; 58 

(d) The Minister could direct under s 16 that a 

Recovery Plan be produced setting out the 

amendments required to the City plan and any 

other relevant RMA document; and 59 

(e) The Christchurch City Council amending the 

City Plan to change their land zoning. 60 

[44] In his evidence, the then CERA chief 

executive said that, “although [compulsory 

acquisition] was an option raised by CERA 

officials, by the time I took up my appointment as 

Chief Executive on 13 June [this option] was not 

on the table”. 

Cabinet committee’s decisions 

[45] As noted above, a week after the June 2011 

earthquake, Cabinet authorised a group of eight 

senior Ministers to take decisions on matters 

relating to land damage and remediation issues. 

On 22 June 2011, these Ministers made a number 

of decisions which were recorded in a 

memorandum for Cabinet signed by Mr Brownlee 

dated 24 June 2011 (the Brownlee paper). The 

decisions were announced to the public by the 

57 The “pros” were identified as being “[c]an affect change 

immediately following a public notice”, while the “cons” 

were the same as identified above in n 56. 

58 The “pros” were identified as being “[c]an affect change 

immediately following a public notice” and the “cons” as 

“[r]emoves existing use rights without any input from 

those directly affected”, “[l]ess community awareness 

and/or input into the process” and “[l]ess linkage to 

overall recovery strategy”. 

59 The “pros” were identified as “[ensuring] a more formal, 

transparent process with an opportunity for community 

engagement” and “[g]reater linkage to overall recovery 

strategy, including input into future land use options”. 

The “cons” were identified as being “[l]onger 

timeframes to complete process” and “[c]ommunity 

expectation that their views may change decisions”. 

60 The “pros” were identified as the fact it could “occur 

without using [Canterbury Earthquake Recovery] Act 

powers” and “[l]ink to other related plan changes 

required”. The “cons” were identified as “[d]oes not deal 

with the issues of existing use rights” and “[l]onger 

timeframes to complete process”. 

Prime Minister and Mr Brownlee on 23 June 


[46] In his paper, Mr Brownlee said that he 

considered the loss of confidence and the scale 

and severity of the damage warranted “a central 

government response”. 61 A “circuit-breaker” was 

required “to arrest the current decline in 

confidence and to form a solid basis for 

recovery”. 62 

[47] The Committee’s decisions were taken in 

light of a prediction from GNS 63 that the chance 

of an earthquake of a magnitude of between 6 and 

6.9 in the region over the coming year was 34 per 

cent, falling to 17 per cent if there were no 

significant aftershocks or triggering events in the 

following month. 64 

[48] The Brownlee paper explained that the 

Committee was of the view that “urgent decisions 

and announcements” from the Government were 

needed as to how recovery would be supported in 

the worst affected suburbs. The paper also 

emphasised the importance of providing certainty 

to home owners, creating confidence to enable 

people to move forward with their lives, and 

providing confidence in decision-making 

processes for home owners, business owners, 

insurers and investors. 65 The Committee 

considered that it should use the best available 

information to inform decisions and have “a 

simple process in order to provide clarity and 

support for land-owners, residents, and 

businesses in [the worst-affected] areas”. 66 

[49] As noted above, the Committee identified four 

zones in Christchurch “based on the severity and extent 

61 Memorandum for Cabinet “Land Damage from the 

Canterbury Earthquakes” (24 June 2011) [Brownlee 

paper] at [19]. 

62 At [19]. 

63 Formerly known as the Institute of Geological and 

Nuclear Sciences, GNS is a New Zealand Crown 

Research Institute which provides earth, geosciences and 

isotope research and consultancy services. 

64 Brownlee paper, above n 61, at [16]. 

65 At [5] and [2.7] of the recommendations. 

66 At [5]. 



of land damage, the cost-effectiveness and social impacts 

of land remediation”. 67 The zones were labelled 

green, orange, red and white. 68 

[50] The green zones covered areas where there 

were “no significant issues which prevent 

rebuilding in those areas, based on current 

knowledge of seismic activity”. 69 The red zones 

were reserved for areas where “rebuilding may not 

occur in the short-to-medium term because the land is 

damaged beyond practical and timely repair”. 70 It was 

noted that most buildings in the red zones were 

rebuilds, that the areas were at risk of further 

danger from low-level shaking, floods or spring 

tides and that infrastructure needed to be rebuilt. 71 

[51] The orange zones were areas where further 

work was required to determine if rebuilding 

could occur in the short-to-medium term. 72 The 

white zones included the Port Hills area where 

the 13 June 2011 earthquake had caused further 

extensive damage necessitating further 

assessment. 73 

[52] The Brownlee paper outlined the criteria 

used by the Committee for determining those 

areas where rebuilding was unlikely to be 

practical over the short-to-medium term as 

follows: 74 

(a) There is area-wide land damage, thereby 

implying some sort of area-wide solution; 

AND 

(b) An engineering solution to remediate the 

land damage would: 

67 At [10]. 

68 The decisions taken by the Committee did not deal with 

the Central Business District as that was to be addressed 

as part of the “Central City Plan”: see at [2.2] of the 

recommendations. 

69 At [10](a). 

70 At [10](c). 

71 At [10](c). 

72 At [10](b). 

73 At [10](d). 

74 At [36] (emphasis in the original). 

♦ be uncertain in terms of the detailed design, 

its success and its possible commencement, 

given the ongoing seismic activity, AND 

♦ be disruptive for landowners, as the 

commencement date is uncertain (both in 

terms of confidence in the land settling 

sufficiently to begin remediation and the 

need to sequence the many areas where 

remediation would be required), and the 

length of time they would need to be out 

of their homes to allow remediation to 

occur and new homes built, AND 

♦ not be timely: for example there is also 

substantial replacement of infrastructure 

required and/or the land level needs to be 

significantly lifted effectively requiring 

work equivalent to the development of a 

new subdivision, and would probably lead 

to significant social dislocation for those 

communities in the short-to-medium term, 

AND 

♦ not be cost-effective: on a per section basis 

the cost of remediation is greater than the 

value of the land as shown below: 

The EQC contribution to the land remediation 

+ 

The betterment cost (i.e. perimeter treatment and/or 

additional raising of the land) 

+ 

Infrastructure removal and replacement costs 

If the cost of the above 

exceeds the value of the 

relevant land the area is 

reclassified as a Red Zone 

If the cost of the above is 

less than the value of the 

relevant land then the area 

is reclassified as a Green 

Zone, but may require 

some land repair work 

(c) The health or well-being of residents is at risk from 

remaining in the area for prolonged periods. 

[53] The Brownlee paper went on to say that, 

“[i]f these criteria are met, then the government 

should consider how it can best support the 

recovery in these areas”. 75 It was recognised that, 

in some areas of significant land damage, there 

may be isolated pockets of land that fared 

75 At [37]. 

99 



reasonably well. 76 However, it was considered 

that, “without a full area-wide land remediation 

solution, the largely undamaged properties may 

be at risk from the works involved” in the land 

remediation for neighbouring properties. 77 

[54] In addition, it was considered that the social 

impacts of widespread remediation options had to 

be considered. It was estimated that large-scale 

remediation programmes were likely to take from 

three to five years (if not longer). 78 This would 

require all of the residents of the affected areas to 

be relocated while remediation took place. It was 

also uncertain whether private insurers would 

offer insurance to properties on land that required 

such a high level of remediation. 79 These 

considerations added further weight to any 

decision not to commit to remediation where it 

appeared not to be cost-effective. 80 

[55] The Brownlee paper recorded that the “the 

government could allow the various insurance 

schemes and policies in place in the Red Zones to 

play out without any intervention”. 81 However, it 

was considered that this could result “in 

protracted individual settlements for the affected 

occupants given the great uncertainty regarding 

when, or if, or on what terms, repairs or rebuilds 

could take place in these areas given the ongoing 

uncertainty of and risk management with respect 

to the underlying geotechnical state of the 

land”. 82 

[56] However, that approach was not adopted as 

the paper stated it would not meet the objectives 

of certainty, confidence for landowners or a 

simplified process. 83 Therefore the making of 

offers to purchase insured residential properties 

on the terms set out above at [4] was 

76 At [38]. 

77 At [38]. 

78 At [39] and [40]. 

79 At [39]. 

80 At [40]. 

81 At [50]. 

82 At [50]. 

83 At [50]. 

recommended. It was noted that these offers 

would ensure that insured residential landowners’ 

equity in their homes would be preserved. 84 

[57] The paper recorded the financial 

implications of these purchase decisions. The 

gross cost of purchases of insured properties in the red 

zones would be up to $1.7 billion, although insurance 

recoveries would mean that the net costs would be 

between $485 and $635 million. 85 It was proposed 

that the properties purchased be expensed 

immediately as they “currently have a minimal 

value”. 86 

[58] The paper made the following comments 

about the implications of the purchase offers on 

infrastructure and services in the red zones: 87 

As a result of these offers there is unlikely to be 

any justification in the near to medium term for 

the infrastructure and services in these areas to 

receive any more than temporary repairs. The 

relevant Councils will be asked to discuss any 

proposed maintenance and repair plans, for the 

infrastructure in these areas, or any proposed 

regulatory interventions for the areas. 

[59] As to uninsured residential properties and 

vacant lots, the paper said that “consideration will 

need to be given over time to the position of these 

people”. 88 It said: 89 

Neither uninsured residential properties nor 

vacant lots are covered by EQC land or 

improvements insurance. For residential owners, 

the risks of not having insurance were risks that 

ought to have been considered when making the 

decision to invest in the property. Residential 

84 At [58]. 

85 At [87]. There was no indication how these figures was 

calculated by the Treasury. As the Crown submitted, the 

figures show that insurance recoveries were anticipated 

to exceed 50 per cent of the gross cost of purchase. 

However, it was still anticipated that insurance 

recoveries would not cover the whole of the purchase 

cost and that there would be a net cost, at least of $485 

million. 

86 At [89]. 

87 At [52]. 

88 At [63]. 

89 At [62]. 



owners should have been aware of the risks when 

choosing not to purchase insurance. Vacant lot 

owners were not eligible for EQC or private 

insurance cover. 

Purchase offers 

[60] In due course those insured property owners 

within the red zone, who returned a consent form 

(allowing the government to share information 

with EQC and the owner’s private insurers to 

develop the offers) to CERA, received an offer to 

purchase from the then chief executive. The 

owners of such properties had the two choices 

that are set out above at [4]. The offer documents 

provided that, under Option 1 (selling the land 

and assigning EQC and private insurer claims to 

the Crown), the purchase price paid by the Crown 

would be adjusted if an insured property owner 

was underinsured by more than 20 per cent. The 

fact sheet accompanying the offers said: 90 

If your property is underinsured by more than 20 

per cent (for example, because it is insured for a 

fixed sum which is less than the rating valuation 

or its size is under-declared on the policy), the 

Crown’s offer to pay the most recent rating 

valuation will be reduced by the percentage that 

you are underinsured. 

[61] The supporting information to the purchase 

offered answered a number of generic questions, 

including: 91 

What will happen to my property if I decide that 

I do not want to accept the Crown’s offer? 

If you decide that you do not want to accept the 

Crown’s offer, you should be aware that: 

♠ The Council may 92 not be installing new 

services in the residential red zone. 

90 We quote the current version of the document, which is: 

CERA “Purchase offer supporting information for 

Residential Red Zone” (March 2013) www.cera.govt.nz. 

An older version appears to have been quoted in both the 

High Court and Court of Appeal judgment: Quake 

Outcasts (HC), above n 6, at [30] and Quake Outcasts 

(CA), above n 6, at [31] but that version was not 

contained in the Case on Appeal to this Court. 

91 Mr Brownlee and the then chief executive of CERA 

made similar remarks to these in media interviews. 

♠ The Council and other utility providers 

may reach the view that it is no longer 

feasible or practical to continue to 

maintain services to the remaining 

properties. 

♠ Insurers may cancel or refuse to renew 

insurance policies for properties in the 

residential red zones. 

♠ While no decisions have been made on the 

ultimate future of the land in the 

residential red zones, CERA does have 

powers under the Canterbury Earthquake 

Recovery Act 2011 to require you to sell 

your property to CERA for its market 

value at that time. If a decision is made in 

the future to use these powers to acquire 

your property, the market value could be 

substantially lower than the amount that 

you would receive under the Crown’s 

offer. 

Consultation 

[62] In carrying out the zoning decisions and 

offers, the Crown did not engage in public 

consultation and did not consult with either the 

Community Forum or the cross-party 

parliamentary forum on this approach. 93 This lack 

of consultation was noted by the Report of the 

Finance and Expenditure Committee in their 

“2010/11 financial review of the Canterbury 

92 The older version, quoted in the Court of Appeal and the 

High Court, used more unequivocal wording. It said that 

the “Council will not be installing new services”. It went 

on to say: “If only a few people remain in a street and/or 

area, the Council and other utility providers may reach 

the view that it is no longer feasible or practical to 

continue to maintain services to the remaining 

properties.” See Quake Outcasts (HC), above n 6, at 

[30]; Quake Outcasts (CA), above n 6, at [31]. 

93 The first community forum was not held until 7 July 

2011 (after the red zone decisions). It appears that the 

first cross-party parliamentary forum was held on 3 May 

2011 but that it seems to have been accepted by the 

Crown there was no consultation on these measures. Mr 

Brownlee’s affidavit of 1 July 2013 at [41] 

acknowledged that “[t]here was no information or advice 

from the community forum which was relevant to the 

decisions Cabinet was making about the [residential red 

zone] in June 2011”. 

101 



Earthquake Recovery Authority and the 

Earthquake Commission”. 94 The Finance and 

Expenditure Committee’s report stated: 95 

Some of us are concerned that the decision to 

zone land into different categories was 

undertaken with insufficient consultation, was 

not based on clear criteria, and has proved 

divisive of communities. 

[63] The report went on to say: 96 

Some of us are concerned about a lack of 

engagement with the public over these zoning 

decisions, which affect the future of entire 

communities. In contrast with normal council 

processes, which would involve advertising and 

public submissions, information flows had been 

confusing and poorly managed. 

Recovery Strategy 

[64] After the June 2011 decisions, community 

workshops were organised by CERA seeking 

public comment on a Recovery Strategy for 

greater Christchurch. The draft Recovery Strategy 

was made available for public viewing, comment 

and consultation from 10 September 2011 to 31 

October 2011. The completed Recovery Strategy 

came into effect on 1 June 2012. 97 

94 Finance and Expenditure Committee 2010/11 financial 

review of the Canterbury Earthquake Recovery Authority 

and the Earthquake Commission (29 March 2012). At 4. 

95 At 4. 

96 At 5. As is recorded in the transcript of evidence in the 

appendix to the report, the Hon Lianne Dalziel put the 

lack of consultation to the then chief executive of CERA. 

She said “The reason I wanted to kind of clarify the legal 

status of the land decisions is that if the city council is 

doing a plan change or a zoning change they would 

advertise it publicly, people would be able to make 

submissions, and there would be true engagement. But 

this has just been announced at press conferences — 

bang, a community’s gone”. Ms Dalziel’s overall point 

appears to have been that there had been effective 

compulsion in an allegedly voluntary process. The chief 

executive responded by saying “Well, all I can say is that 

at the moment people wanted us to make them an offer, 

because a lot of people wanted to go”: at 38. 

97 The “Recovery Strategy for Greater Christchurch” was 

approved by the Governor-General by Order in Council 

(Canterbury Earthquake (Recovery Strategy Approval) Order 

[65] The completed Recovery Strategy expressly 

acknowledged that, while it was envisaged when 

the Canterbury Earthquake Recovery Act was 

passed that the Recovery Strategy might have 

addressed the areas where rebuilding or other 

redevelopment may or may not occur, the 

Strategy had not been able to address that issue. 98 

The reason for this given in the Recovery 

Strategy was because: 99 

It is ... a huge and complex task to make 

decisions about land zoning and the location and 

timing of rebuilding. Similarly, it is not yet clear 

whether Recovery Plans – which are statutory 

documents with the power to overwrite a range 

of planning instruments – will be the most 

appropriate and effective way to provide 

direction. 

[66] While the draft Recovery Strategy that was 

released on 10 September 2011 had made no 

mention of the future use of the red zone, the 

finalised Recovery Strategy stated the 

following: 100 

Residential red zone land clearance is overseeing 

the clearance of residential red zone properties 

and the return of the land to open space. It 

consists of three stages over two to three years. 

The first stage is to remove built structures and 

services. The second will involve larger-scale 

land clearance and grassing. The final stage will 

be to liaise with utility providers to remove 

public infrastructure no longer needed. After 

that, Land Information New Zealand will 

manage the open space. 

[67] To help achieve the outcomes of the 

Recovery Strategy, a Land Use Recovery Plan 

was directed to be created by the Minister to 

provide “direction for residential and business 

land use development to support recovery and 

2012). The Order in Council was notified in the New 

Zealand Gazette: “Canterbury Earthquake (Recovery 

Strategy Approval) Order 2012” (31 May 2012) 61 New 

Zealand Gazette 1745. 

98 CERA “Recovery Strategy for Greater Christchurch” 

(June 2012) [Christchurch Recovery Strategy] at 2. 

99 At 2. 

100 At 40. 



rebuilding across” greater Christchurch. 101 The 

draft Land Use Recovery Plan, which was 

publically notified on 6 July 2013, stated: 102 

In existing urban areas, the significant hazard has 

been addressed through establishing residential 

red and green zones and by the identification of 

green zone land under three technical categories 

– TC1, TC2 and TC3. Until such time as the 

future use of this land is determined by the 

Crown the only areas that are prohibited for 

urban activities are those within the residential 

red zone. 

[68] That paragraph was not included in the final 

Land Use Recovery Plan which was gazetted on 6 

December 2013. 103 

Offers relating to other categories of property 

[69] From around April 2012, CERA officials 

began working on the position of those not 

covered by the June 2011 decisions, including 

vacant land owners and uninsured house owners. 

[70] On 15 June 2012, Mr Brownlee announced 

that the Crown had extended its offer to purchase 

red zone properties to include properties that had 

been under construction at the time of the 

February 2012 earthquake and to non-residential 

properties owned by not-for-profit organisations. 

The decision affected 17 residential properties 

that had been under construction and had building 

works insurance and seven non-residential 

properties owned by not-for-profit organisations 

that had insured their buildings, but, because of 

being non-residential, did not have EQC cover for 

their land. 

[71] In announcing the decision Mr Brownlee 

said “[t]oday’s announcement is consistent with 

the Crown’s Recovery Principles and will enable 

101 Environment Canterbury Regional Council “Land Use 

Recovery Plan” (6 December 2013) at 6. 

102 Environment Canterbury Regional Council “Draft Land 

Use Recovery Plan” (6 July 2013) at 62 (emphasis 

added). 

103 Environment Canterbury Regional Council, above n 

101. See “Land Use Recovery Plan Commencement 

Notice” (6 December 2013) 164 New Zealand Gazette 4517. 

these people to also get on with their lives”. 104 In 

the Cabinet paper signed by Mr Brownlee on 25 

May 2012, the rationale behind the extension of 

the offers was explained. For the residential 

properties under construction, the paper stated 

“the building/construction works could be insured 

but could not insure the land; Consistent with 

Crown’s Recovery principles …”. With regards 

to not-for-profits, it said “[p]roperty owners could 

not insure the land, could insure the building; 

Consistent with Crown’s Recovery principles, 

supports not-for-profit organisations to reestablish 

elsewhere…”. 105 As a result, owners of 

land that that had dwellings under construction 

and had building/construction insurance and 

owners of not-for-profits that had building 

insurance, were offered 100 per cent of the most 

recent valuation for their uninsured and 

uninsurable land. 106 

[72] On 30 August 2012, the Minister signed a 

revised Cabinet paper which related to four 

further categories of red zone owners. These were 

insured residential leasehold properties, 

properties with no insurance (vacant land and 

other uninsured properties) and insured 

commercial/industrial properties. 107 When the 

Minister announced the creation of the red zones 

and the associated offers in June 2011, it was said 

that the Government would be considering the 

position of the uninsured in the next few weeks 

104 CERA “Red zone offer extended to new categories” 

(15 June 2012) www.cera.govt.nz. 

105 Cabinet Paper “Red zone residential properties under 

construction and non-residential properties owned by 

not-for-profit organisations” (signed by the Minister on 

25 May 2012) at 2. 

106 With the same choice in relation to improvements as 

under the June 2011 offers. 

107 See Cabinet Paper “Red Zone Purchase Offers for 

Residential Leasehold, Vacant, Uninsured, and 

Commercial/Industrial Properties” (signed by the 

Minister on 30 August 2012) [Cabinet Paper (30 August 

2012)]. The recommendations were approved by the 

Cabinet Business Committee on 3 September: see 

Cabinet Business Committee (Minute of Decision), 

above n 5. 

103 



and that it would get information to them as soon 

as possible. 108 It took 15 months to clarify the 

position of uninsured and vacant land owners. 

The reason for this delay was explained by Mr 

Brownlee in his affidavit where he said “CERA 

necessarily had to prioritise its work, so an 

assessment of the more difficult issues that 

affected fewer people had to wait”. 109 

[73] Insured commercial and industrial properties 

(comprising 22 properties), received a 100 per 

cent offer in relation to improvements, but a 50 

per cent offer in relation to land value. 110 This 

reflected the fact that the land did not have EQC 

insurance cover, as a consequence of not being 

residential land. 111 The same paper also dealt with 

insured residential leasehold properties occupied 

under perpetually renewable leases on land 

owned by the Waimakariri District Council. 

These owners did not receive the initial June 

2011 Crown offer as they did not own their land. 

The Crown offer effectively extended the June 

2011 offers to these properties. 112 

[74] With regard to vacant land and uninsured 

residential properties the paper noted: 113 

There are strong arguments for not extending an 

offer to these property categories on the same 

terms as for insured properties. It would 

compensate for uninsured damage, be unfair to 

other red zone property owners who have been 

paying insurance premiums, and it creates a 

108 Gerry Brownlee “Latest Christchurch land information 

released” (23 June 2011) www.beehive.govt.nz. 

109 Affidavit of Mr Gerry Brownlee (1 July 2013) at [49]. In 

its written submissions, Quake Outcasts submits that the 

delay was a deliberate tactic and designed to “increase 

the impact of the ‘bleak environment’ ... and thereby 

increase the uptake of the Crown’s coercive offer”: at 

[43]. We make no comment on this submission. 

110 Cabinet Paper (30 August 2012), above n 107, at [12]– 

[17]. 

111 At [57]. See Earthquake Commission Act 1993, s 19 

which only extends to residential land that has a 

residential building which is insured under the Act. 

112 Cabinet Paper (30 August 2012), above n 107, at [23]– 

[29]. 

113 At [32]. 

moral hazard in that the incentives to insure in 

the future (where insurance is available) are 

potentially eroded. 

[75] The paper, however, recognised the costs 

associated with owners of such properties 

electing to remain in the red zones, given the 

“limited scope to decommission infrastructure – 

which is costly to maintain”. 114 The Christchurch 

City Council had estimated an ongoing 

infrastructure cost per household of over $16,000, 

compared to the pre-earthquake cost of about 

$600 per household. 115 This calculation assumed 

a 79 per cent occupancy rate but the cost would 

increase significantly as more people moved out 

of the zones. 116 The paper recorded that, as at 13 

August 2012, out of 7,560 red zone properties 75 

per cent of the owners of those properties had 

accepted Crown offers. 117 

[76] The paper recognised that uninsured owners 

in the red zone were in a different position to 

similar properties in the green zones: 118 

Red zone properties are in areas of severe 

infrastructure damage, many surrounding 

neighbours have either left or are planning to 

leave (as evidenced by the high uptake rate of the 

Crown offer), and there is considerable 

uncertainty about what will happen to these areas 

in the future. 

[77] The Minister did not support the option of no 

offer being made “as there are good reasons to 

support exit from the red zones”. 119 The paper 

stated that, while any offer should recognise that 

red zone properties retained some residual value, 

it should also reflect the fact that such properties 

were worth a lot less than the pre-earthquake 

value (estimates had been that the land was worth 


115 At [33]. We assume these figures represent the ongoing 

cost per year. 


117 See at [60]–[61]. Some of the remaining 25 per cent of 

properties were ineligible and/or had not yet received an 

offer. 





only 10 per cent of that value) and that the property 

damage in question was not insured against. 120 

[78] In relation to vacant land, the recommendation 

was to make 50 per cent offers. 121 This would 

ensure that the offers were not below postearthquake 

values and “help support the signal 

that the Government wants to encourage property 

owners to move on from the red zone”. 122 The 

estimated cost to the Crown of the purchase of 

the 65 sections in this category was $6.031 

million with additional transaction costs of 

$1.098 million. 123 

[79] As to the uninsured residential properties 

(with improvements) in the red zones, it was 

recognised that these included properties “where 

the owner consciously chose to not insure, as well 

as those that may have been insured at some point 

but do not meet the insurance continuity 

requirements of the Crown offer for insured 

properties”. 124 

[80] The offer to owners of uninsured residential 

properties was to be for 50 per cent of the land 

value only, with property owners retaining 

salvage rights to uninsured buildings and the 

possibility of relocation of buildings before 

settlement. 125 It was stated that: 126 

This offer supports the signalling objective for 

the red zone while providing some support for 

recovering elsewhere and acknowledging that the 

owners were not fully insured throughout the 

whole process. 

120 See [35.1] and [39]. 

121 In an April 2012 paper to the Minister, CERA had 

initially recommended extending the 100 per cent offer 

to owners of vacant land in the red zones. However, this 

recommendation appears to have been abandoned by 

July 2012. 

122 Cabinet Paper (30 August 2012), above n 107, at [40]. 

123 At [42]. 

124 At [43]. The information accompanying the June 2011 

offers specified that the Crown offer was not available 

to those that were not insured at the time of 22 February 

2011 earthquake and those who were insured on 22 

February 2011 but were not insured at the time of the 

offers: above n 90, at 8. 


126 At [45]. 

[81] The estimated cost for the purchase of the 

uninsured residential properties was $4.162 

million, with transaction costs of $1.266 

million. 127 It was estimated that there were about 

50 properties in this category. 128 

[82] On 3 September 2012, the Cabinet Business 

Committee agreed with and adopted the 

Minister’s recommendations in relation to both 

uninsured residential properties and vacant land 

and the other categories discussed above. 129 The 

Cabinet Business Committee re-stated the 

objectives of the purchase offers, including 

certainty of outcome, creation of confidence to 

enable people to move forward with their lives, 

and creation of confidence for decision-making 

processes of insurers, home-owners, business 

owners and investors. 130 

[83] After that decision, a paper dated 7 

September was circulated by CERA to the 

Minister of Finance (Hon Bill English), the 

Associate Minister of Finance (Hon Steven 

Joyce) and Mr Brownlee which recommended 

altering the land status of 37 properties in Port 

Hills area from white zones to red zones. 

Importantly, the paper stated that with respect to 

these areas, “CERA is acting on the principle that 

individual choice should be respected so long as 

life safety risks are adequately managed”. A 

footnote to that statement provided that “[t]his 

differs from the flat land where there is clear 

benefit in clearing as much of the red zone areas 

as possible as these are large contiguous areas 

that could beneficially [be] managed as one large 

entity”. 131 

127 At [49]. 

128 The figure was an estimate because officials could only 

become aware of these properties through selfidentification 

or where insurance issues became 

apparent in the course of the Crown offer process for 

insured properties: see [47]. 

129 Cabinet Business Committee (Minute of Decision), 

above n 5. 

130 At [1.2]. See above at [48]. 

131 This evidence was adduced before the hearing but after 

the filing of the Case on Appeal. 

105 



[84] On 13 September 2012, Mr Brownlee 

announced the further red zone decisions and the 

offers to be made to each category of property 

owners. His press release detailed the offers to be 

made to each category of property owner. He 

commented that the offers were made “[i]n order 

to aid recovery and support the objectives of the 

residential red zone process”. 132 

[85] To give effect to the September decisions, in 

November 2012, CERA published documents 

entitled Purchase Offer Supporting Information 

for Uninsured Improved Properties in the 

Residential Red Zone and Purchase Offer 

Supporting Information for Vacant Land in the 

Residential Red Zone, setting out the purchase 

offers that would be made once property owners 

had signed a consent form. 133 Owners would then 

have until 31 March 2013 134 to accept the Crown 

offer, with settlement of the transactions to occur 

by 30 April 2013. 135 The documents included the 

same advice as had been provided in the fact 

sheet given to the recipients of the 100 per cent 

offers relating to the infrastructure, insurance 

issues and the Crown’s compulsory purchase 

powers. 136 

Current position of Quake Outcasts group 

[86] Some of the members of Quake Outcasts 

continue to live in the red zone. Other members 

of Quake Outcasts have accepted the offer on a 

“without prejudice” basis so that they can take 

part in the current proceedings. 137 

132 CERA “Further red zone properties addressed” (13 

September 2012) www.cera.govt.nz. 

133 

CERA “Purchase offer supporting information for 

Uninsured Improved Properties in the Residential Red 

Zone” (November 2012) and CERA “Purchase offer 

supporting information for Vacant Land in the 

Residential Red Zone” (November 2012). 

134 Or 31 May 2013 for Southshore properties. 

135 Or 31 June 2013 for Southshore properties. 

136 CERA, above n 133, at 5. See above at [61]. 

137 Others of the Quake Outcasts received, but did not 

accept, the 50 per cent offers, while some did not 

complete the necessary consent form and did not 

therefore receive any offer. 

[87] We note that the then chief executive of 

CERA, in his July 2013 affidavit, recognised that 

there are safety risks in the red zones and that 

there had been a large increase in fires, rodents, 

crime and looting in those areas. 138 In addition, 

there is evidence that New Zealand Post has 

begun withdrawing postal services to the red zone 

on the basis that residential occupation is no 

longer being sustained and the roads are no 

longer safe for its employees. 

[88] We record at this point that a number of the 

Quake Outcasts group cannot be described as 

making a “conscious choice” not to insure their 

properties. The reasons for this include: 

(a) a couple who had paid insurance premiums 

“religiously” but were in the process of 

having a financial adviser package up a 

complete insurance offer for everything, with 

a four-day gap before the September 2010 

earthquake; 

(b) a couple who had overlooked changing 

insurance cover into their name because of 

stress from a cancer diagnosis and caring for 

dependent family members. This couple were 

uninsured at the time of the September 2010 

earthquake and their insurance company had 

refused cover even though they had had 

insurance with the company since 1972; 

(c) a claimant who had understood that insurance 

was in the hands of her bank; and 

(d) a claimant who had not paid his insurance 

premiums for the two months prior to the 

earthquake by oversight. 

SUBMISSIONS 

Quake Outcasts’ submissions 

[89] On behalf of Quake Outcasts, Mr Cooke QC 

submits that the Government’s residential red zone 

measures had to be introduced under the machinery in 

the Canterbury Earthquake Recovery Act. This had 

just been enacted with provisions regulating such 

measures and it contains important protections 

necessary to justify the extraordinary steps 

involved in clearing the red zones. 

138 Affidavit of the chief executive of CERA (16 July 2013) 

at [14]-[15]. 



[90] In his submission, any residual “third source” 

authority 139 that the Crown has could never authorise 

the kind of measures introduced in this case. Even 

assuming the existence of “third source” 

authority, this only provides authority for 

ancillary or incidental administrative actions 

necessary for the day to day business of 

government. In Mr Cooke’s submission, it is also 

clear that such authority does not arise where legislation 

“occupies the field” or when there is existing positive law. 

Further, it cannot authorise governmental action that 

affects rights and liberties. It is submitted that the 

Crown’s actions in this case had significant 

practical effects which directly resulted in truncated 

rights. 

[91] In this context, it is submitted that the unequal 

treatment of the uninsured (and the delays in 

making decisions about their position) is unlawful, 

an abuse of power and inconsistent with the earthquake 

recovery purposes of the Canterbury Earthquake 

Recovery Act. Even if the lack of insurance is a 

relevant point of differentiation for some of the 

Quake Outcasts group, the dramatic nature and 

effect of the different treatment is oppressive, 

disproportionate and unreasonable, especially as 

there has been no consideration of the individual 

circumstances of the affected persons. It is also 

contrary to the purpose of earthquake recovery, in 

terms of the Canterbury Earthquake Recovery 

Act. 

[92] It is now more than three years since 100 per 

cent offers were made to the other insured 

residents and over a year since the High Court 

ordered that new offers consistent with the Act be 

139 We were referred to numerous articles that discussed the 

existence and scope of the “third source”, including BV 

Harris “The ‘Third Source’ of Authority for Government 

Action” (1992) 108 LQR 626; BV Harris “The ‘Third 

Source’ of Authority for Government Action Revisited” 

(2007) 123 LQR 225; BV Harris “Government ‘Third 

Source’ Action and Common Law Constitutionalism 

(2010) 126 LQR 373; and J Simpson “The Third Source 

of Authority for Government Action Misconceived” 

(2012) 18 AULR 86. See also Philip A Joseph 

Constitutional and Administrative Law in New Zealand 

(4th ed, Brookers Ltd, Wellington, 2014) at 652–658. 

made. Mr Cooke submits that, even if unequal 

treatment was a legitimate option open to the 

Government in June 2011, the exceptional 

circumstances now facing the Quake Outcasts 

group require that they now be treated equally 

with insured property owners. In his submission, 

any other relief has been, and would continue to 

be, ineffectual. 

Fowler Developments’ submissions 

[93] Mr Rennie, for Fowler Developments, 

submits that there is no rational basis to 

discriminate between Fowler Developments and 

insured residential property owners. He says that 

Fowler Developments had uninsurable assets 

rather than uninsured assets and cannot rationally 

be penalised for having no insurance. He also 

points out that the offer of 100 per cent of 2007 

rateable values was intended to be an area-wide 

or blanket solution to compensate for the effects 

of the red zoning decision and with the objectives 

of securing relocation of all within the red zones. 

This was unachievable without a similar offer to 

vacant land owners. 

[94] Mr Rennie points out that insured residential 

owners received the offer for 100 per cent of 

2007 rateable value for their land regardless of 

whether the land was damaged, whether they had 

an EQC claim or whether such a claim would be 

of any value and notwithstanding that any land 

more than 8 metres from their dwelling was 

uninsured in any event. 140 

[95] In addition, Mr Rennie points out that the 

decision to create the red zones would have impacted on 

the value of the land. The earthquake damage had 

also seriously impacted the value of land. This 

meant that the offer to purchase the underlying 

land of insured residential owners for 100 per 

cent of rateable value cannot therefore have been 

based upon a post-earthquake market value. 

Instead, it was an offer of compensation for the 

140 Mr Rennie’s reference to the 8 metre limit is from the 

Earthquake Commission Act which defines “residential 

land”, among other things, as “all the land within 8 

metres in a horizontal line of the building”. 

107 



consequential effects of the zoning decision 

which had rendered almost worthless the value of 

the residential properties. 

[96] On the other issues, Fowler Developments 

adopts the Quake Outcasts’ submissions. 

Human Rights Commission’s submissions 

[97] The Human Rights Commission was granted 

leave to file submissions as an intervener. Its 

submissions focus on New Zealand’s 

international obligations with respect to human 

rights. 

[98] In terms of the red zoning decision, the 

Commission’s argument is that the Canterbury 

Earthquake Recovery Act should be interpreted to 

“cover the field” in relation to decisions which impact 

on human rights, where the protections of the Act would 

enhance the protection and domestic justiciability of 

those rights. The Commission argues that the 

protective measures put in place by Parliament should 

not be side-stepped by executive action under the guise 

of “residual freedom” or the “third source”. 

[99] In terms of the 50 per cent offers, the 

Commission argues that, in light of the purposes 

of the Act and New Zealand’s international 

human right obligations, the reasons for a lower 

offer do not amount to a rational justification for 

differential treatment. 

Crown’s submissions 

[100] Mr Goddard QC, on behalf of the Crown, 

submits that the June 2011 announcements merely 

provided information to the public about the 

condition of land in certain areas and identified 

those areas which were not suitable for rebuilding 

in the short-to-medium term. The announcements 

did not purport to alter the status of the land under the 

RMA and did not alter the uses to which the land could 

lawfully be put. 

[101] It is submitted that the Crown does not require 

statutory authority to provide information to the public. 

Ministers were able to make the decision that this 

information should be provided and the Prime 

Minister and the Minister were able to provide 

the information, in the exercise of the Crown’s 

common law powers. In Mr Goddard’s 

submission, nothing in the Canterbury Earthquake 

Recovery Act limits or excludes the power to provide 

information. 

[102] As to the decision to establish the red zones, it is 

submitted that this was a delegated Cabinet policy 

decision, implemented by the announcement made by 

the Prime Minister and the Minister for Canterbury 

Earthquake Recovery. It was not a decision made, or 

required to be made, under the Canterbury Earthquake 

Recovery Act. While it was accepted that in this 

case, the chief executive in June 2011 made the 

purchase offers to implement the Cabinet 

decisions under s 53 of that Act, it was 

nevertheless submitted that the Act does not limit 

the Crown’s common law power to acquire land 

and personal property through voluntary 

transactions. 

[103] Mr Goddard submits further that the 

distinction drawn between insured and uninsured 

property owners was based on differences in the value 

of the assets to be purchased and on fairness and 

precedent factors. In his submission, the 

Canterbury Earthquake Recovery Act does not 

prevent the chief executive taking into account, 

when making an offer to purchase a property, the 

value of the assets to be acquired, the net cost to 

the Crown of that purchase, fairness as between 

different groups affected by the Canterbury 

earthquakes and, more generally, as between 

those affected by the earthquakes and persons 

affected by other natural disasters. The precedent 

effect of making a 100 per cent offer to these 

victims of a natural disaster, when no such offer 

has been made to others affected by the 

Canterbury earthquakes or to property owners 

affected by other natural disasters was also a 

relevant consideration. 

[104] In addition, it is submitted that it was open to 

Ministers, when making funding decisions, to take these 

factors into account. The Canterbury Earthquake 

Recovery Act does not apply to ministerial decisions 

about expenditure of public money. The September 

2012 Cabinet decisions made it possible for the 

chief executive to make an offer to the relevant 

group of property owners. Without the financial 

authority provided by the Cabinet decision, 

however, no offer could lawfully be made. 



ISSUES 

[105] The submissions raise the following issues: 

(a) Was the Crown merely providing 


(b) Should the procedures under the 

Christchurch Earthquake Recovery Act 

have been used? 

(c) What matters were relevant to the September 

2012 decisions? 

Was the Crown merely providing 


[106] We do not accept the Crown’s submission that, in 

June 2011, the Government was merely providing 

information to the public. The Cabinet committee 

made a number of decisions on important matters 

(as identified in the Brownlee paper) including: 

(a) the decision that the situation in Christchurch 

warranted a central government response; 141 

(b) the setting of objectives for the “urgent 

decisions and announcements” to be made 

by the Committee, including promoting 

confidence in decision-making processes 

for home and business owners, insurers and 

investors; 142 

(c) the setting of criteria for determining the 

identification of zones in Christchurch on 

the basis of land damage, and the costeffectiveness 

and social impacts of land 

remediation; 143 

(d) the decision on detailed criteria for 

identifying areas where re-building was 

unlikely to be practical in the short-tomedium 

term and in particular, the decision 

that this was to include a cost/value 

analysis; 144 

(e) the decision as to the requirement for areawide 

responses even if individual 

properties in the red zones had not suffered 

extensive damage; 145 




144 See above at [50]-[52]. 


(f) the decision to require territorial authorities 

to discuss proposed maintenance or repair 

of infrastructure and services in the red 

zones with the Government (with a clear 

implication that any large scale 

maintenance and repairs would be 

discouraged); 146 

(g) the decision not to leave matters to 

individuals and their insurance 

companies; 147 

(h) the decision not to use the compulsory 

powers in the Canterbury Earthquake 

Recovery Act; 148 and 

(i) the decision to offer to purchase insured 

residential properties at a sum in excess of 

their current value, with an estimated net 

cost of between $485 and $635 million. 149 

[107] We are not suggesting that the decisions that 

were taken by the Cabinet committee and announced 

publicly on 23 June 2011 were not sensible decisions. 

They may indeed, given the situation facing 

Christchurch, have been seen by the Committee 

as the only sensible decisions that could be made. 

This, however, does not rob them of their character as 

decisions. 

[108] It is true that the decisions were made in light of 

what was considered to be the best available 

information. 150 The fact that decisions are based on 

information and that some or all of the 

information on which the decisions are based is 

communicated to the public at the same time as 



148 This was made explicit in the then chief executive of 

CERA’s affidavit dated 16 July 2013 where he said “by 

the time I took up my appointment as Chief Executive 

on 13 June 2013 the option of compulsory acquisition 

was not on the table. ... I can confirm that this option 

had been discarded, and was and is not being pursued 

directly or indirectly.” See above at [43]–[44]. 

However, we do note that the information 

accompanying the June 2011 offers referred to the 

Crown’s possible use of the compulsory powers of 

acquisition: see above at [61]. 


150 See above at [48]. This was a requirement that the 

Committee had set itself. 

109 



the decisions, does not mean that the decisions are 

subsumed in the information upon which they are 

based. Nor does it mean that communication of the 

decisions is merely communication of information. 

Should the procedures under the Canterbury 

Earthquake Recovery Act have been used? 

[109] In this section, we first consider whether the 

Canterbury Earthquake Recovery Act covers the field 

and therefore excludes the Crown acting under the socalled 

“third source” of power. If that question is 

answered in the affirmative, we consider what 

procedures under the Act should have been used 

(and in particular whether the red zoning decisions 

should have been made under the Recovery Strategy 

or a Recovery Plan). We then move to the question 

of whether s 53 should have been used to 

implement the purchase decisions, absent a 

Recovery Strategy or Recovery Plan. Finally, we 

deal with the Crown’s argument that the Act has 

no role in funding decisions, before setting out 

our conclusions on whether the procedures under 

the Act should have been used. 

Does the Act cover the field? 

[110] The Crown argues that the red zoning 

decisions were not made under the Act and were 

not required to be made under the Act. Further, 

while the Crown accepts that the purchase offers 

were made under s 53 of the Act in this case, it 

submits that the common law (“third source”) 

powers to acquire property (in cases of voluntary 

sale and purchase) still remained. 

[111] The parties are agreed that, if the Act “covers 

the field”, this leaves no room for the “third source” of 

power. As Lord Atkinson said in Attorney- 

General v De Keyser’s Royal Hotel Ltd: 151 

It is quite obvious that it would be useless and 

meaningless for the Legislature to impose restrictions 

and limitations upon, and to attach conditions to, the 

exercise by the Crown of the powers conferred by a 

statute, if the Crown were free at its pleasure to 

disregard these provisions, and by virtue of its 

151 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] 

AC 508 (HL) at 539. While that case concerned the 

interaction between the Royal prerogative and statute, 

the principle must apply to “third source” powers, if 

they exist. 

prerogative to do the very thing the statutes empowered 

it to do. One cannot in the constructions of a 

statute attribute to the Legislature (in the absence 

of compelling words) an intention so absurd. 

[112] For the reasons we explain below, we accept 

Quake Outcasts’ submission that the Act covers the 

field and therefore that the procedures under the Act 

should have been used. This means that we do not 

need to make any comment on the existence or 

the extent of any residual Crown powers in other 

circumstances. 152 

[113] The first indication that the Act was intended 

to be the vehicle for earthquake recovery measures 

is the title of the Act itself: the Canterbury 

Earthquake Recovery Act 2011. The next 

indication is in the purposes of the Act, which are 

set out in s 3. 

[114] As noted at [14] above, the first purpose set 

out in the Act is to provide for appropriate 

measures to ensure a response to the impacts of 

the Canterbury earthquakes on greater 

Christchurch, its councils and Christchurch 

communities and to ensure the recovery from the 

effects of the earthquakes. 153 The second purpose 

is to enable community participation, without 

impeding a focussed, timely and expedited 

recovery, 154 which is the fourth purpose of the 

Act. 155 The other purposes include information 

gathering, facilitating and coordinating the 

recovery of affected communities and 

restoring the “social, economic, cultural and 

environmental well-being of greater Christchurch 

152 Professor Bruce Harris, in “Recent Judicial Recognition 

of the Third Source of Authority for Government 

Action” (2014) 26 NZULR 60 at 78, states that a statute 

may intend that the government continue to have the 

freedom to act under the third source in addition to the 

right to act under the statute. We do not need to 

comment on this suggestion either as we do not consider 

that the Christchurch Earthquake Recovery Act did 

leave the government the freedom to act under the third 

source (if it exists) if it was making significant decisions 

on earthquake recovery measures. 

153 Canterbury Earthquake Recovery Act, s 3(a). 

154 Section 3(b). 

155 Section 3(d). 

Law Animated World, 15-31 March 2015 110


communities”. 156 The role of the Minister and 

CERA is to ensure that recovery. 157 Providing 

“adequate statutory power for the purposes” set 

out above is also a purpose of the Act. 158 

[115] The purposes of the Act are, consistently 

with its title, focused on the recovery of the 

greater Christchurch communities from the 

earthquakes. They are expressed 

comprehensively, indicating that the Act was 

intended to be the vehicle (and the only vehicle) 

for major earthquake recovery measures. 

[116] The argument that the Act “covers the 

field” in relation to significant earthquake 

recovery measures is reinforced by the fact that 

the powers and duties of the Minister and the 

chief executive, the people responsible for 

leading the recovery measures, are set out in 

detail. It is also reinforced by the requirement of 

the Act for the preparation of an overarching 

Recovery Strategy for the reconstruction, 

rebuilding and recovery of greater 

Christchurch. 159 It must have been envisaged that all 

major recovery strategies and measures were to be 

included in that Recovery Strategy. 

[117] That the Act’s role is exclusive is also 

shown by the safeguards in relation to the use of 

the powers in the Act, which are particularly 

important because many of the powers in the Act 

are highly coercive. It cannot have been intended 

that the safeguards in the Act could be 

circumvented by acting outside of the Act. 

[118] As to the nature of these safeguards, the 

Act is explicit that all of the powers in the Act 

must be used for the purposes of the Act and, 

even then, only when it is reasonably considered 

necessary for those purposes. 160 There are also 

the consultation requirements through the 

community forum and the cross-party 

parliamentary forum, 161 as well as the specific 

156 Section 3(e)-(g). 

157 Section 3(c). 

158 Section 3(h). 

159 Section 11. 


161 Sections 6 and 7. 

consultation requirements related to the Recovery 

Strategy and Recovery Plans. 162 It is clear that 

participation from the affected communities, to the 

extent compatible with expedited recovery, is a key 

value of the Act. 

[119] The Act also requires that the Minister 

produce quarterly reports on the operation of the 

Act and any powers exercised by, or on behalf of, 

the Minister or the chief executive under the 

Act. 163 In addition to these quarterly reports, the 

Act also requires annual reviews of the operation 

and effectiveness of the Act. 164 Again, it cannot 

have been envisaged that significant recovery measures 

would be implemented outside the Act and therefore 

free from these reporting requirements. 

[120] The conclusion that the Act “covers the field” 

is reinforced by the legislative history. The legislative 

history, as outlined earlier in this judgment, 165 

highlighted the recovery purpose of the Act. While 

the Act contains significant powers, these were to be 

used only for recovery purposes and the Ministers’ 

speeches placed emphasis on the body of 

provisions designed to ensure that those powers are 

exercised judiciously, only to the extent necessary, with 

community input and that their use is reported on to 

Parliament. 

[121] The measures decided upon by the Cabinet 

committee in June 2011 were significant earthquake 

recovery measures and should have been made under 

the powers given for those purposes by the Act. That is 

what Parliament envisaged. 

What procedures under the Act 

should have been used? 

[122] Moving now to the question of which 

procedures in the Act should have been used, we 

note first that the Act provides that the Recovery 

Strategy may include provision to address the areas 

where rebuilding or other development may or may not 

occur and the possible sequencing of that work. 166 It 

may also include the location of existing and future 




165 At [30]-[38]. 

166 Section 11(3)(a). 

111 



infrastructure and the possible sequencing of repairs, 

rebuilding and reconstruction of that infrastructure. 167 

[123] The use of the word “may” in section 11 

appears to have been used because, at the time of 

passing the Act, it was not conclusively known 

whether there would be areas where rebuilding 

was not appropriate. The word “may” cannot, 

however, be read as making it optional whether or not 

to include the designation of such areas in the Recovery 

Strategy if such designation took place in the 

context of significant earthquake recovery 

measures. 

[124] After due consideration of available 

information, the Cabinet committee in June 2011 

considered that some areas were inappropriate for 

rebuilding in the short-to-medium term and they were 

zoned red. Given the importance of these zoning 

decisions, the inevitable impact on infrastructure 

maintenance and development and their relevance 

to the recovery of the Christchurch region, this 

comes squarely within the type of decisions the 

Act contemplated would be made in the course of 

developing the Recovery Strategy. 

[125] We do not accept the Crown submission that, 

because the red zone decisions were that rebuilding 

should not occur in the short-to-medium term, they do 

not come within the ambit of the Recovery Strategy, 

which is concerned with a long-term strategy. A long 

term strategy necessarily includes the steps to be 

taken in the short-to-medium term to achieve the 

long-term strategy. This is made clear by the 

reference to decisions on the sequencing of 

rebuilding and redevelopment and the repair and 

building of infrastructure. It may also be said to 

be implicit in the nine-month period for the 

development of the Strategy. 168 

[126] It was neither necessary nor feasible, given the 

Cabinet committee’s objective of acting quickly to 

restore confidence, to wait for the promulgation of the 

Recovery Strategy. This situation was, however, 

anticipated by the Act, which provides that Recovery 

Plans may precede the Recovery Strategy. 169 

167 Section 11(3)(b). 

168 Section 12(2). 

169 Se ction 18(2). 

[127] This means that, before the Recovery Strategy 

was completed, significant matters (such as the areawide 

zoning decisions made by the Cabinet 

committee in June 2011) that would ordinarily 

have been dealt with in the Recovery Strategy, 

should have been pursued through a Recovery Plan. 

[128] In addition to the zoning decisions, there 

were also decisions about purchase offers to be 

made to insured residential property owners in 

the red zone. The purchase decisions were 

inextricably linked to the characterisation of the 

red zones as being unfit for land remediation and 

rebuilding in the short-to-medium term. In those 

circumstances, we consider that at least the broad 

outlines of those purchase decisions should have been 

dealt with in a Recovery Plan. 170 

[129] The details of any purchase offers covered 

in the Recovery Plan would then have fallen to 

the chief executive to be dealt with under s 53, 171 

in accordance with the purposes of the Act, as 

required by s 10(1). We accept Quake Outcasts’ 

submission that, once the June 2011 Cabinet decisions 

were made, realistically the chief executive’s discretion 

was restricted to the mechanics of meeting the Cabinet 

decisions on purchase offers. 

[130] The Court of Appeal considered that, 

because there was no intention to make 

alterations to the RMA regime in the June 2011 

decision on the red zones, the use of the Recovery 

Plan processes would have been “awkward”. 172 

The Court of Appeal said that the situation would 

have been complicated because, under s 23 of the 

Act, any person exercising functions under the 

RMA is prohibited from making a decision or 

recommendation that is inconsistent with a 

Recovery Plan on a number of specified matters, 

170 As National MP, Nicky Wagner, said with regard to 

Recovery Plans, they are “the what, the where, and the 

how of the recovery”: (12 April 2011) 671 NZPD 


171 One of the functions of the chief executive under s 9 of 

the Act is “acquiring … land and property under section 

53”. 

172 See Quake Outcasts (CA), above n 6, at [121] and [122]. 



including applications for resource consent. 173 As 

a result, the Court of Appeal concluded: 

[122] Accordingly, although we believe that the 

Recovery Plan mechanism could possibly have 

been adapted to provide a statutory mechanism 

for the June 2011 decision, we do not think that 

it is sufficiently aligned with what actually 

occurred in this case for us to be able to say that 

the intention of Parliament was that the Recovery 

Plan process was the mandatory mechanism for 

decisions of the type made in June 2011. 

[131] We do not agree with the approach of the Court 

of Appeal. The prescribed legislative mechanisms 

are expressed in terms indicating that they are 

intended to be comprehensive. That the mechanisms 

under the Act may not be entirely suitable, convenient 

or perfectly “aligned” with what the Executive desires 

to achieve is not a reason for statutory procedures to be 

bypassed. It is for Parliament to amend the legislation if 

it is not fit for purpose. In addition, it cannot be 

inferred that Parliament would have anticipated, and 

sanctioned in advance, departure from the mandated 

procedures. That it would not is clear from the 

structure of the Act which provided powers that 

were flexible and could be sufficiently tailored to 

deal with any circumstances that arose. As is 

recognised in the Act, and was emphasised in the 

Parliamentary debates, significant decisions 

regarding Christchurch’s recovery were also to have 

statutory safeguards and involve community 

participation. 

[132] In any event, we do not agree with the Court of 

Appeal that the use of a Recovery Plan would have been 

“awkward” because of s 23 of the Act. Given that the 

Cabinet committee’s decision did not purport to 

affect the RMA, it is difficult to see why s 23 

would have been engaged. As s 16 of the Act 

recognises, Recovery Plans can be used for a range of 

matters, including any social, economic, cultural or 

environmental matters. 174 They are not limited to RMA 

issues and indeed the RMA is not even mentioned 

in s 16. 

[133] In the High Court, Panckhurst J was of the 

view that the Minister was “obliged to invoke 

173 At [121]. 

174 Canterbury Earthquake Recovery Act, s 16(2)(a). 

section 27 in order to define and create the red 

zone”. 175 We do not agree. Section 27 deals with 

suspension, amending and revoking RMA plans 

and other documents. The Crown did not, by its 

June 2011 decision, purport to alter planning 

documents. The Act recognises that the Crown 

should not use coercive powers like s 27 if the 

same outcome can be achieved by less coercive 

means under the Act. This is the approach 

mandated by s 10 which only allows powers to be 

used when necessary. 

[134] Nevertheless, we accept Quake Outcasts’ 

submission that the red zoning decisions made in June 

2011, despite not using the compulsory powers 

available under the Canterbury Earthquake 

Recovery Act and despite not affecting property 

rights, 176 were designed to facilitate and encourage 

movement out of the red zones. 

[135] While the Crown argues that clearing the 

red zones has never been its intention, the aim of 

encouraging movement out of those zones is a 

necessary inference from the purchase offers that 

were made at 2007 values (despite the land 

damage) and the “fact sheet” accompanying the 

offers which highlighted, among other things, that 

services were likely to be discontinued and that 

the Crown retained the right to purchase 

properties compulsorily. 177 

[136] Such an intention was also made clear in 

the Draft Land Use Recovery Plan where it stated 

that “the only areas that are prohibited for urban 

activities are those within the residential red 

175 Quake Outcasts (HC), above n 6, at [70]. 

176 At least not affecting property rights in the narrow sense 

of the word – see the discussion in John Page and Anne 

Brower “Of Earthquakes, Red Zones and Property 

Rights: the Quake Outcasts Case” (2014) 26 NZULR 

132 at 136–137 as to other, and wider, conceptions of 

property. See also art 17 of the International Covenant 

on Civil and Political Rights 999 UNTS 171 (opened for 

signature 16 December 1966, entered into force 23 

March 1976) which states that “No one shall be 

subjected to arbitrary or unlawful interference with his 

… home” and art 12 of the Universal Declaration of 

Human Rights GA Res 217 A(III), A/810 (1948) at 71. 





zone”. 178 At the hearing in this Court, counsel for 

Quake Outcasts, Mr Cooke, recognised that the 

reference to urban activities being prohibited in 

the red zones was a mistake. Notwithstanding 

this, the sentence in the draft plan in our view is 

indicative of the Crown’s thinking at the time: that 

voluntary withdrawal from the red zones was to be 

encouraged, reflected in the internal CERA paper that 

recognised that there is a “clear benefit in clearing as 

much of the red zone as possible”. 179 

[137] This intention to facilitate and encourage 

voluntary withdrawal reinforces the link between 

the red zone decisions, the purchase offers and 

recovery from the earthquake and also reinforces 

the significant character of the decisions. It also 

highlights the need for such measures to have 

been the subject of a Recovery Plan. This would 

have required at least the minimum consultation 

provided for by s 20 of the Act. Indeed, given the 

significance of the decisions made for all of 

Christchurch and in particular for those in the red 

zones, it may be that further consultation, albeit 

expedited, would have been required. 180 

Use of s 53 of the Act? 

[138] We have held that at least the broad outlines 

of the purchase decisions should have been included 

in a Recovery Plan. This is because it was an integral 

part of the red zoning decisions that those living in 

the red zones would be encouraged to leave. 

[139] Even if (contrary to our view) the Recovery 

Plan did not need to refer to the purchase 

decisions, those purchase decisions were so tied 

to the red zoning decisions, and to government 

policy in relation to voluntary clearance of the red 

zones, that the s 53 powers should not have been 

used unless there had been an antecedent 

Recovery Plan setting up the red zones. 181 

178 Environment Canterbury Regional Council, above n 

102, at 62. 

179 See above at [83] and n 131. 

180 See Canterbury Earthquake Recovery Act, s 19(2)(a), (b) 

and (e). Section 19(2)(e) explicitly recognises that in 

deciding how to develop a Recovery Plan, the Minister 

must have regard to the “need to act expeditiously”. 

181 We are thus in disagreement with the Chief Justice and 

William Young J on this point. 

[140] It is true that the Crown did not use its powers 

of compulsory acquisition under the Act. However, it is 

unrealistic to describe the transactions that occurred as 

voluntary. 182 The inhabitants of the red zones had no 

realistic alternative but to leave, given the damage to 

infrastructure and the clear message from the 

government that new infrastructure would not be 

installed and that existing infrastructure may not 

be maintained and that compulsory powers of 

acquisition could be used. 183 

[141] Section 9 of the Act provides that the chief 

executive has specified functions “for the purpose 

of giving effect to this Act”. These include, under 

s 9(l), “acquiring, selling or otherwise dealing 

with land and property under section 53”. While 

it may be possible under s 53 for the chief 

executive to justify individual or small scale 184 

purchases outside the scope of the Recovery 

Strategy or a Recovery Plan, we do not consider 

this is possible for widespread purchases on the 

scale undertaken (and particularly those which 

are not truly voluntary). The very scale and effect 

of the purchases puts them squarely within the 

structures and processes of the Act. 

Funding decisions? 

[142] It is convenient at this point to deal with the 

Crown’s argument that the Cabinet committee’s 

decisions were funding decisions and not 

reviewable. 

[143] We do not accept that the decisions made in 

June 2011 can be characterised as funding decisions. 

The red zoning decision and the related decision to 

encourage voluntary withdrawal from red zones were 

significant earthquake recovery measures that should 

182 See discussion below at [176]. 

183 If it is the case that, had the government used its 

compulsory powers, it would have had to operate within 

the Act’s structures of the Recovery Strategy or 

Recovery Plans, an issue the Chief Justice refers to but 

does not determine, it would be undesirable for the 

Crown to avoid the Act’s requirements by structuring its 

offers as “voluntary”, while creating conditions that 

effectively deprive the owners of any realistic choice. 

184 And certainly purchases related to the ordinary operation 

of the office could be justified. 



have been made under the Act. It would not be 

legitimate for the Crown effectively to side-step the Act 

by characterising such decisions as funding decisions, 

able to be made outside of the processes required 

by the Act. That would risk such “funding” 

decisions not according with the purposes of and 

bypassing the processes and safeguards provided 

by the Act. 185 Section 5 of the Canterbury 

Earthquake Recovery Act provides that the Act 

binds the Crown. In addition, the Act contemplates 

voluntary and compulsory acquisition and the 

Crown has admitted that the chief executive was 

acting under s 53 of the Act when he made the 

purchase offers, rather than acting outside of the 

framework of the Act. 

[144] It is evident that issues around funding have 

arisen, and will continue to arise, in developing 

and implementing the Recovery Strategy and 

Recovery Plans. However, funding issues should 

run alongside the development of such 

instruments and not separately. Section 19(2)(c) 

of the Act requires the Minister, when developing 

a Recovery Plan, to have regard to possible 

funding implications and the sources of funding. 

This suggests that a “funding decision” is not a 

valid reason for bypassing the Act’s procedures. 

[145] Funding decisions will of course take into 

account the general priorities in Government 

spending as well as the purposes of the Act. The 

Act must also be read as envisaging that the 

Recovery Strategy and Recovery Plans would be 

tailored to take into account available funding. 

This does not, however, mean that decisions on 

significant earthquake recovery measures are 

purely funding decisions. 

185 We are not suggesting that the Cabinet committee’s 

decisions did not accord with the purposes of the Act in 

this case but the Crown’s argument would leave that 

possibility open in another case. Although it does not 

appear that s 10 of the Canterbury Earthquake Recovery 

Act was expressly considered by the Cabinet committee 

in June 2011, it is clear from the Brownlee paper that 

the Committee considered the measures to be necessary 

for recovery and thus that the measures would meet the 

s 10 requirements. 

CONCLUSION 

[146] The whole scheme of the Canterbury 

Earthquake Recovery Act, its purposes and its 

legislative history support the view that decisions of the 

magnitude of those made in June 2011 on recovery 

measures should have been made under the Act and in 

particular through the Recovery Plan processes. They 

were not. That the June 2011 decisions were made 

outside of the Act undermined the safeguards, 

community participation and reviews mandated by the 

Act. 

What matters were relevant to 

the September 2012 decisions? 

[147] We now turn to the matters that the 

appellants say should (and should not) have been 

taken into account before making the offers to 

them. First, they say that it was irrational to take 

into account the insurance status of the properties. 

Secondly, they say that the purposes of the Act, 

and in particular that of recovery, were not 

properly considered. Thirdly, they say that, even 

if insurance status was relevant in June 2011, 

given the current situation in the red zones, it is 

no longer relevant. 

Was the insurance status of the properties relevant? 

[148] The insurance status of the remaining 

property owners was seen as determinative in the 

decision in September 2012 not to extend to the 

uninsured and uninsurable the same or a similar 

offer as had been made in June 2011 to insured 

property owners. 

[149] We begin our discussion of this topic by 

analysing the reasons given for the differential 

treatment between insured and uninsured/ 

uninsurable properties. 

[150] In deferring the decision on uninsured 

residential properties and residential vacant lots, 

the June 2011 Brownlee paper noted that: 186 

(a) they were not covered by EQC land or 

improvements insurance; 

(b) the risks of not having insurance should 

have been factored into the decision to 

invest in the property; and 





(c) the owners of residential properties “should 

have been aware of the risks when 

choosing not to purchase insurance”. 

[151] In the August 2012 paper, the following 

additional factors were put forward to justify a 

differential offer: 187 

(a) a non-differentiated offer would compensate 

for uninsured damage; 

(b) a non-differentiated offer would be unfair 

to other red zone property owners who 

have been paying insurance premiums; and 

(c) a non-differentiated offer would result in 

moral hazard, due to a reduction in the 

incentives to insure in the future where 

insurance is available (because such an offer 

could create an expectation that the government 

would step in to bail out property owners struck 

by natural disasters in the future). 

[152] We examine each of these factors in turn. 

As to the first reason in the Brownlee paper, the 

fact that the properties were not covered by EQC 

(or private insurance) would obviously have 

increased the cost to the Crown of purchasing 

those properties. It does not, however, seem that 

lack of resources loomed large in the ultimate 

decisions as to the offers made to those without 

insurance. 188 Certainly this was not explicitly 

referred to and, although the cost of the 50 per 

cent offers was set out, there were no figures 

given comparing a 100 per cent offer to the 

uninsured and uninsurable against the offer 

actually made. Nor was there a comparison with 

the cost to the Crown of the earlier offers. 

[153] As to the second reason, that the risks of 

not being insured should have been factored into 

the decision to invest in the property, we assume 

this was referable to purchasers of vacant land 

who could not insure. 189 We, however, doubt that 

187 Cabinet paper (30 August 2012), above n 107, at [6] of 

the recommendations. 

188 The Court of Appeal came to a similar view, albeit on a 

difference basis: see Quake Outcasts (CA), above n 6, at [149]. 

189 This is because any purchasers of residential properties 

with improvements who had mortgages would have 

many of those purchasing sections for their own 

residential or other private purposes would have 

been sophisticated enough investors to take this 

into account at purchase or to see it as a reason to 

start construction as soon as possible after 

purchase, assuming they could afford to do so. 

We have not been directed to any evidence that 

the inability to insure vacant land is factored into 

the cost of land or that potential purchasers are 

routinely appraised of this risk by real estate 

agents or that lenders were, at least before the 

Christchurch earthquakes, unwilling to lend on 

the security of vacant land for this reason. In any 

event, earthquakes had not been seen as a high 

risk in the region. 190 

been required to have insurance by their banks. The 

only property owners who could choose not to insure at 

purchase (and factor in the risks of that decision) 

therefore would be those (likely to be in the minority) 

who were able to buy without a mortgage. 

190 The 22 February earthquake far exceeded the seismic 

modelling for even modern Christchurch buildings. 

Christchurch was seen as a low-risk area: for example, 

an engineer quantified the low risk and said the 

February quake was of a force statistically unlikely to 

occur more than once in 1000 years: Matthew 

Dearnaley “Christchurch earthquake: Wrecker’s tip for 

leaning tower” The New Zealand Herald (online ed, 

Auckland, 25 February 2011). Another expert, Dr Quincy 

Ma, a lecturer in civil engineering at the University of 

Auckland, was recorded as saying that the fault that 

shook the city in February had never been identified as a 

major risk: Simon Collings “Christchurch earthquake: 

Pre-70s buildings are ‘at risk’” The New Zealand 

Herald (online ed, Auckland, 24 February 2011). As 

was recognised in Tonkin & Taylor’s February 2012 

report, the February 22 earthquake “produced the 

highest vertical and horizontal ground accelerations 

(how hard the earth shakes) ever recorded in New 

Zealand”: Tonkin & Taylor “Earthquake Commission: 

Canterbury Earthquakes 2010 and 2011 – Land report as 

at 29 February 2012” (Report prepared for the 

Earthquake Commission, February 2012) available at 

www.eqc.govt.nz at 4. In addition, the then chief 

executive of CERA recognised in his affidavit of April 

2013 that as to the Canterbury earthquakes, he 

understood “that this was the worst damage by such an 

event in New Zealand, and possibly the world”. 



[154] The third reason in the Brownlee paper was 

that owners of residential properties “should have 

been aware of the risks when choosing not to 

purchase insurance”. As was recognised in that 

paper, owners of vacant lots could not insure. 191 

There was thus no issue of a conscious choice not 

to insure for owners of vacant land. This reason 

therefore must relate to uninsured residential 

owners of land and improvements. 

[155] As to the uninsured, as against the 

uninsurable, we do not understand there to have 

been any inquiry into the individual 

circumstances of the members of that group, 

although it was recognised in the August 2012 

paper that some had consciously not insured and 

some were not insured by mistake. 192 In the Quake 

Outcasts group, it was not in all cases a “choice” 

to be uninsured. As indicated above, a number of 

the Quake Outcasts group were uninsured 

through inadvertence or bad luck. 193 It may be too 

that any “choice” of others not to insure could 

have arisen through financial hardship, lack of 

sophistication or a failure to appreciate the 

risks. 194 In addition, because of the structure of 

EQC cover, property owners have to insure for 

fire to receive natural disaster insurance. An 

owner is unable to split insurance and only get 

cover for natural disaster insurance. Because 

earthquake insurance is not directly insurable, but 

instead is connected to fire insurance, there was 

not necessarily a conscious choice not to insure 

for earthquake damage. 

[156] We are not suggesting that failing to take 

into account individual circumstances was an 

error. The red zone decisions were made on an 

area-wide basis, while recognising, for example, 

that there might be individual properties in the 

red zones which were not damaged to any 

significant extent. 195 This was legitimate. It is 



193 above at [88]. 

194 As noted above at [153] and n 190, the risks were seen 

as low in any event. 


recognised in the Act, at s 11(3)(a), that the 

Recovery Strategy may need to address areas 

where rebuilding may or may not occur. It was, 

however, unfair to take into account a factor (that 

of a conscious choice to remain uninsured) that 

may not or may not have been applicable to each 

member of the uninsured group. As we discuss in 

the next section of this judgment, an area-wide 

approach suggests an area-wide solution. 

[157] As to the first reason given in the August 

2012 paper, that a 100 per cent offer would 

compensate for uninsured damage, this was true 

but its significance is much reduced by the fact 

that, in the Brownlee paper, it was anticipated 

that the offers made to insured residential 

property owners would cover more than the 

insurance recoveries. The net cost, after insurance 

recoveries, was estimated as being from $485 to 

$635 million. This means that the Crown, in these 

earlier purchase offers, must have contemplated 

compensating for uninsured loss. The offer to pay 

out at 2007 values was of course designed to 

make the offers attractive and to fulfil the purpose 

of encouraging the voluntary withdrawal from the 

red zones (which were considered unsuitable for 

rebuilding in the short-to-medium term). 

[158] The fact that there had already been 

compensation for uninsured loss for insured 

property owners covered by the June 2011 

decisions was not set out in the August 2012 

paper as a factor that was taken into account. It 

was a relevant consideration and therefore it 

should have been considered. 

[159] In addition, the concern about 

compensation for uninsured loss is undermined 

by the fact that in June 2012 the Crown extended 

100 per cent offers to red zone properties under 

construction and non-residential properties owned 

by not-for-profit organisations. 196 In these cases, 

the land was not insured and not insurable, but 

yet the Crown still offered to purchase the 

property (including the land) at its most recent 

rateable value. Presumably, the offer to the 





properties under construction was on the basis 

that, on completion, when residential insurance 

cover was secured, those properties would have 

been eligible for EQC land cover. But there was 

no present cover. The extension of the offers in June 

2012 further diminishes the strength of the Crown’s 

argument that it did not wish to compensate for 

uninsured damage. 197 

[160] Again, we are not to be taken as suggesting that 

the decisions to compensate at 2007 rateable values for 

the insured group or to extend that offer to not-forprofit 

organisations and to homes under construction 

was in any way inappropriate. Indeed, it is totally 

consistent, as was recognised in the Brownlee 

paper, with the necessity of ensuring the recovery 

of the communities affected by the decisions 

relating to the red zones, as required by the Act. 

[161] As to the second reason of unfairness to 

those who had insured, this is also mitigated by 

the fact that some insured property owners would 

be paid more than the insured value of their 

properties. 198 We also accept the submission of the 

Human Rights Commission that it is not clear what 

steps may been taken to test whether and to what extent 

insured home owners in the red zone would consider it 

unfair for their uninsured neighbours to be assisted in 

similar terms to them. We accept the Commission’s 

point that this is an unjustified assumption of public 

lack of generosity for those in need that stands in 

marked contrast to the public’s actual response to the 

earthquakes. 199 In addition, if the Recovery Plan 

197 Indeed, given that a number of the appellants were 

intending to build homes, the distinction appears 

arbitrary. For example, one couple had arranged 

construction insurance, had the building plans drawn up 

and had obtained resource consent but the Council had 

put the permit on hold. As a result, at the time of the 

earthquake, the land was bare. If they had proceeded 

with a minimal amount of construction they would have 

received the 100 per cent offer announced by the Crown 

in June 2012. 

198 This is evidenced by the Crown’s estimated net cost 

(after insurance recoveries) of between $485 and $635 

million for purchasing insured properties in the red 

zones: see above at [57] and the Crown’s submission 

recorded at n 85. 

199 

As to research into Christchurch’s community 

cohesiveness and resilience after the earthquakes, see 

procedure had been implemented as required, the 

Crown would have had the benefit of community 

views on these issues. 

[162] The third reason, regarding the potential 

moral hazard of reducing the incentive to insure in the 

future, cannot readily be applied to vacant land, given 

that insurance and EQC cover is unavailable for vacant 

land. 200 We accept that the moral hazard 

arguments are stronger for the uninsured, rather 

than the uninsurable, but the effect should not be 

exaggerated. In an affidavit before the Court, Dr 

Adolf Stroombergen, an economist, outlined why, 

in his view, the Crown’s moral hazard or 

“precedent” arguments should carry little 

weight. 201 This moral hazard argument arises 

from the belief that homeowners will not insure 

their houses as they may believe the government 

will, if need be, step in and buy their properties 

after a natural disaster in the future, thereby 

rendering natural disaster insurance unnecessary. 

Dr Stroombergen points out that generally in 

New Zealand only bundled insurance packages 

are available to property owners and these cover a 

variety of risks in one policy (for example, fire, 

burglary, theft, accidental damage and natural 

disaster). 202 As a result, Dr Stroombergen believes 

that “very few policy owners would elect to 

forego all insurance to achieve any imagined 

benefit from no longer retaining the natural 

disaster component”. 203 

Louise Thornley and others “Building Community 

Resilience: Learning from the Canterbury earthquake 

(Final Report to the Health Research Council and 

Canterbury Medical Research Foundation, March 

2013)” available at www.communityresearch.org.nz. 

See, in particular, 17–25 which discuss the findings as 

to the community’s response to the earthquakes. 

200 This was recognised by the then chief executive of 

CERA in his affidavit of April 2013 where he 

recognised that “[i]nsurance was not available for bare 

land, so the moral hazard issue does not arise”. 

201 Affidavit of Dr Adolf Stroombergen (10 June 2013). 

202 This was made clear in the affidavit of Allan Daly (10 

June 2013) at [12], [13], [17] and [18]. 

203 Dr Adolf Stroombergen, above n 201, at [10]. 



[163] In any event, moral hazard arguments apply 

also to those insured, insofar as many were anticipated 

to be paid more than the value for which their property 

was insured. This could arguably be seen as 

creating an incentive for others to structure their 

future insurance cover in the belief that the 

government would, in the event of a natural 

disaster, compensate them fully on the basis of 

pre-disaster property values. In the case of 

insured property owners, such moral hazard 

arguments were not addressed in the June 2011 

paper, possibly because they were considered to 

be outweighed by the wish to encourage 

voluntary withdrawal from the red zones and by 

the recovery principles, which in turn arose from 

the decision that it was inappropriate to leave the 

situation to the market. 204 

[164] In our view, any moral hazard arising from 

any purchases (of both insured and uninsured 

properties) is further diminished when it is 

considered that the offers to purchase were made 

in the context of a disaster of major proportions 

with widespread damage and significant human 

cost, both individually and at a community level. 

They were also made in the context of legislation 

designed to promote recovery and where an areawide 

approach to the creation of the red zones 

had been taken, as well as a decision to encourage 

the clearance of those zones. 

[165] Finally, we note that the Brownlee paper, 

when suggesting a “full area-wide land 

remediation solution”, recognised there may have 

been “isolated pockets of land that fared 

reasonably well”. 205 Questionnaires completed by 

members of the Quake Outcasts group indicate 

that some of their properties were not badly 

damaged. For example, one member said “[t]he 

land is hardly damaged, the house is repairable 

and is quite ‘liveable’.” She said that, when she 

emailed CERA seeking geotechnical or other 

information as to her property, the reply from the 

chief executive on 21 December 2012 was that 

“CERA does not hold any specific individual 

204 See above at [55] and [56]. 


property information ... red zoning decisions were 

made by the Government on an area wide basis 

rather than by an individual property basis”. 206 

[166] We are not suggesting that an area wide 

approach was erroneous. 207 But the fact that some 

uninsured or uninsurable individual properties 

may have fared reasonably well and suffered little 

damage rather suggests that the harm suffered by 

the owners at least to a degree relates to government 

policy rather than their insurance status. It is not a 

viable option for owners to remain in their 

properties, even if they are relatively undamaged. 

As indicated above, 208 the Crown’s intention was to 

facilitate and encourage voluntary withdrawal from the 

red zones. This has been successful with 

widespread withdrawal from those zones. In turn 

this means that services are unlikely to continue 

to be provided in the long-term. 

[167] For all of the above reasons, we do not 

consider that the insurance status of properties in the 

red zone should have been treated as determinative 

when deciding that there should be a differential and, if 

so, the nature and extent of that differential. We 

accept, however, that the insurance status of 

properties was not an irrelevant factor. Some of 

the reasons discussed above may have provided 

justification for a differential. 

[168] For example, a distinction between the 

insured and the uninsured and uninsurable could 

have taken into account (alongside other relevant 

factors such as the recovery purpose of the Act) 

the cost difference for the Crown, provided there 

had been a clear connection between the offers 

made and that cost difference. There would, 

however, have needed to be a rational (and fair) 

reason why this factor did not apply to the offers 

made to not-for-profit organisations and to 

owners of properties under construction. 

206 Other members of the Quake Outcasts group shared the 

same concerns. We recognise that none of 

questionnaires were contained in affidavits and we 

therefore do not decide whether the owner’s views are 

therefore, in fact, correct. 


208 See above at [135]-[137]. 




[169] To take another example: for fairness to 

those who were insured to have been a good 

reason for the differential offers, it would have 

been necessary to address the problem of 

uninsurable properties and the fact that for some 

in the Quake Outcasts group there was no 

conscious choice not to insure. Further, it was 

relevant that it was anticipated that many of the 

insured would be paid more than the insurance 

value of their properties. Why fairness to the 

insured was so important when they were to be 

paid full value for their properties (including for 

some uninsured damage) would have to have 

been considered. 209 

[170] When it made the decision to create the red 

zones on an area-wide basis and to encourage the 

voluntary clearance of the red zones through the 

June 2011 offers, the Crown set the parameters 

(and the relevant factors) not only for the June 

2011 purchase offers but also for future purchase 

decisions in the red zones. The September 2012 

decisions were not taken in a vacuum. They were 

linked to the June 2011 and to the subsequent 

June 2012 decisions. Factors taken into account 

in those decisions remained relevant factors in 

September 2012. 

[171] This means that, while the insurance status of 

the properties was not irrelevant, a number of relevant 

factors (outlined above) do not appear to have been 

taken into account in deciding on whether or not there 

should have been differential treatment for the 

uninsured and uninsurable and, if so, the nature and 

extent of any differential. 

Were the purposes of the Act properly considered? 

[172] The main purpose of the Canterbury 

Earthquake Recovery Act is to provide for the recovery 

of greater Christchurch communities. 210 This involves 

a holistic approach to restore the “social, economic, 

cultural, and environmental well-being of greater 

Christchurch communities”. 211 The recovery 

aspirations of the Act are also evident from the 

legislative history. 

209 Along with the other factors discussed above at [161]. 

210 Canterbury Earthquake Recovery Act, s 3(a). 

211 Section 3(g). 

[173] Under s 10, any powers exercised under the 

Act, including those under s 53, need to be 

exercised for the purposes of the Act and to be 

necessary for that purpose. The September 2012 

decisions on offers to be made to the uninsured 

and uninsurable did take into account the need for 

an incentive to encourage owners to leave the red 

zones and to provide some funds to owners to 

start again but s 10 of the Act, and the Act’s 

recovery purpose, does not seem to have been 

explicitly considered. We thus agree with the 

High Court and the Court of Appeal on this 

point. 212 

[174] Given the recovery aspirations of the Act, 

the question is whether distinguishing between the 

insured and the uninsured and uninsurable (at least to 

the extent this occurred) is in accordance with the 

purposes of the Act. 

[175] There is no doubt that the offer of 50 per 

cent of the land valuation provides limited 

support for those affected to start up again, 

hindering economic recovery for most individuals 

affected, many of whom have limited access to 

other resources. 

[176] The Crown argues that owners in the red 

zone are free to decide not to sell and that they 

may remain in the red zone if they wish to do so. 

However, the reality is that the red zone is no longer 

suitable for residential occupation. We accept the 

Human Rights Commission’s argument that the 

red zone decisions meant that residents in the red zone 

were faced with either leaving their homes or remaining 

in what were to be effectively abandoned communities, 

with degenerating services and infrastructure. In 

light of that stark choice, Panckhurst J, in his 

judgment, termed this a “Hobson’s choice”. 213 

We agree. 

[177] We accept the Crown’s submission that the 

recovery principle does not mean that the Crown 

has a duty to each and every resident to do 

212 Quake Outcasts (HC), above n 6, at [90] and Quake 

Outcasts (CA), above n 6, at [146]. 

213 Quake Outcasts (HC), above n 6, at [93]. Hobson’s 

Choice means in effect only one option being offered – 

“take it or leave it.” [IMS]. 



everything possible to ensure that person’s 

individual recovery from the effects of the 

earthquakes. However, the processes in the Act were 

designed for the recovery of communities 214 and 

communities are made up of individuals. 

[178] The red zone decisions were made on a 

community wide basis and this suggests a whole of 

community approach, rather than separating out 

particular individuals or groups for differential 

treatment in a manner that does not support 

recovery. As the Brownlee paper recognised, the 

area-wide problem required an area-wide solution 

and this decision has set the parameters for 

consequential decisions. 215 

[179] We accept the Crown’s submission that the 

earthquakes and not the Crown caused the land damage 

in the red zones. 216 It was, however, the Cabinet 

committee’s decision to designate the criteria for 

delineating the red zones. That the zones may 

have been differently designated if the criteria 

were different is a possibility that cannot be 

discounted. But, even if that were not the case, it 

was the Government’s decision to encourage the 

voluntary withdrawal from those zones and thus the 

removal of the communities in the red zones to other 

areas. 

[180] The plight of those left behind in the red 

zones has thus been exacerbated by the actions of 

the Crown in making purchase offers to insured 

red zone property owners. As a result of the 

acceptance of those offers (which were designed 

to be attractive), there is no motivation for service 

providers to continue to provide proper services 

to those areas and the Crown’s decision 

legitimises the retirement of such services to the 

red zones. The remaining individuals in the red 

zone have been effectively left in a dilapidated 

urban area that will worsen as it is further 

abandoned. This cannot enhance their recovery 

from the earthquakes. 

214 See s 3(a). 

215 Brownlee paper, above n 61, at [36]. 

216 William Young J makes a similar point in his judgment 

below at [382]. 

[181] In terms of the Act, the recovery of the red 

zone communities had to be considered and, to 

the extent practical, facilitated. This should have 

been taken into account in the decisions reached 

in September 2012. 

What should be the effect of the delay? 

[182] We now turn to the issue of the delay in 

decisions being made about the position of the 

uninsured and uninsurable land in the red zones. 

We accept that some time to ascertain numbers of 

those in these categories and costings would have 

been needed, although this was not articulated as 

a reason for delaying dealing with the uninsured 

or uninsurable in June 2011. The delay until 

September 2012 cannot be justified on the basis 

of having to ascertain costings and the Crown did 

not argue that it was. The Crown attempted to 

justify the delay on the basis of priorities. 217 

[183] There is no doubt that a natural disaster on 

the scale of the Canterbury earthquakes meant 

major work and that priorities had to be set. 

However, there is also no doubt that the living 

conditions in the red zone have severely 

deteriorated over the last three years. 

Infrastructure is deteriorating and will not be 

replaced, there is no new residential activity and 

clearance of purchased properties has begun. As 

was recognised in the August 2012 paper, there 

are huge infrastructure costs involved in 

maintaining the infrastructure for those 

remaining. 218 The September 2012 decisions were 

taken against this backdrop. 

[184] As a result, the context in which the 

September 2012 offers were made was 

substantially different to that pertaining in June 

2011. Indeed, even in June 2011, one of the 

criteria identified in the Brownlee paper was that 

the health or well being of residents was at risk 

from remaining in areas with land damage for 

prolonged periods. 219 219 This new context, and 

217 This reason was set out by Mr Brownlee in his affidavit: 

see above at [72]. 



121 



the health and safety concerns set out in the 

Brownlee paper, were relevant factors and should 

have been taken into account. 

[185] Further, because the offers were not made, 

as they should have been, in the context of a 

Recovery Plan, there has been limited 

opportunity for consultation with those affected 

by these decisions. 220 In the course of a Recovery 

Plan process, there would have been the 

opportunity for some input by those in the 

position of the appellants and their communities 

and this may have had an influence on 

consequential or later decisions. 221 At the bare 

minimum, this input would have been in the form 

of an opportunity, as members of the public, to 

make written comments on the draft plan. 222 

However, given the significance of the decisions, 

it might have been expected that further 

consultation, albeit expedited, would have been 

required. 223 

[186] If the Recovery Plan process had been used 

in June 2011, then it may even have been that the 

position of other groups of property owners in the 

red zone (including those in the position of the 

appellants) would have been dealt with in that 

process. One advantage of this would have been 

that all types of property owners could have been 

considered together allowing for informed 

comparisons between groups. 

[187] The requirement of the Act that such 

important decisions should involve community 

input is not just a matter of procedural form, but a 

220 While CERA hosted a number of red zone workshops, 

the minutes of these workshops record that they were in 

the format of question and answer sessions, rather than a 

truly collaborative and consultative exercise. A copy of 

the questions and answers at those workshops can be 

found at www.cera.govt.nz/flat-land-residential-redzone/workshops. 

221 We note that an internal CERA paper dated June 2011 

enumerated one of the “cons” of developing a recovery 

plan as being that there may be a “[c]ommunity 

expectation that their views may change decisions”: see 

above at [43] and n 59. 

222 Canterbury Earthquake Recovery Act, s 20(3)(b). 

223 As noted above at [137]. 

matter of substance. The legislative history made 

it clear that Cantabarians were to have input into 

the rebuilding of their communities. As was 

recognised by Megarry J in John v Rees, any 

argument that the consultation would have made 

“no difference” carries little weight: 224 

As everybody who has anything to do with the law 

well knows, the path of the law is strewn with 

examples of open and shut cases which, somehow, 

were not; of unanswerable charges which, in the 

event, were completely answered; of inexplicable 

conduct which was fully explained; of fixed and 

unalterable determinations that, by discussion, 

suffered a change. Nor are those with any 

knowledge of human nature who pause to think for 

a moment likely to underestimate the feelings of 

resentment of those who find that a decision against 

them has been made without their being afforded 

any opportunity to influence the course of events. 

[188] In conclusion on the issue of delay, we consider 

this was a relevant factor that should have been taken 

into account. The situation in the red zones had 

deteriorated. Many of the June 2011 offers had 

been accepted and the properties vacated. The 

fact that the September 2012 decisions were 

being taken against a totally different backdrop to 

that pertaining in June 2011 should have been 

considered. Further, the failure to follow proper 

processes under the Act, and the associated lack 

of consultation, means that the individuals left 

behind had not had the proper opportunity to have 

input into the decisions affecting them. 

CONCLUSION 

[189] This appeal has concerned three main 

questions: whether the Crown merely provided 

information in June 2011; whether the procedures 

under the Christchurch Earthquake Recovery Act 

should have been used; and what matters were relevant 

to the September 2012 decisions. 

[190] We have rejected the contention that the Crown 

was merely providing information in June 2011 when 

identifying the red zones and outlining the offers 

to be made to insured property owners. The 

reality is that the Cabinet committee made a 

224 John v Rees [1970] Ch 345, [1969] 2 WLR 1294 (Ch D) 

at 402. 



number of decisions on important issues, 

including that a central government response was 

required and decisions on the criteria for 

identification of zones. 

[191] As to whether the procedures under the Act 

should have been used, we have concluded that the Act 

provided a comprehensive regime to deal with 

earthquake recovery. Significant recovery measures, 

such as the zoning and purchase decisions made 

in June 2011, should therefore have been made under 

the Act. 

[192] As to the mechanics, the zoning and related 

purchase decisions came within the issues that 

should have been dealt with under the Recovery 

Strategy. We have, however, accepted that, given 

the Cabinet committee’s objectives of acting quickly to 

foster confidence, it was neither necessary nor feasible 

to await the development of the Recovery Strategy. 

[193] The Act does, however, allow Recovery Plans to 

be developed in advance of the Recovery Strategy. If 

there are important earthquake recovery measures 

that should have been dealt with in the Recovery 

Strategy, had there been sufficient time, the 

structure and policy of the Act means that the 

Recovery Plan process should have been undertaken. A 

Recovery Plan was the appropriate mechanism for 

implementing the Crown’s land classification decisions 

and could not be circumvented. 

[194] Given the close relationship between the 

zoning decisions and the purchase offers and the 

area-wide approach, we have concluded that at least 

the broad outlines of the purchase decisions should also 

have been dealt with under the Recovery Plan 

processes. 

[195] Even if the purchase decisions were not 

required to be dealt with under a Recovery Plan, 

however, we do not consider purchases could 

lawfully be made under s 53, absent a Recovery 

Plan dealing with the red zoning decisions. This 

is because of the close link between the red 

zoning decisions and the purchase offers, the 

area-wide nature of those red zoning decisions 

and the lack of real choice for people in the red 

zones as to whether to accept the offers (given the 

warnings given by the Crown about the likely 

lack of infrastructure and the possible use of 

compulsory powers). 

[196] As to the September 2012 decisions and related 

offers, we have concluded that, although insurance 

was not an irrelevant consideration, other relevant 

considerations weighed against this being a 

determinative factor. Those factors include the fact 

that the offers to the insured, not-for-profits and 

to owners of buildings under construction 

allowed for payment above that which was 

insured or insurable. In addition, if some of the 

uninsured or uninsurable individual properties 

fared reasonably well and suffered little damage, 

the harm to their owners has arisen, at least to a 

degree, because of government policy of 

facilitating voluntary withdrawal, rather than their 

insurance status. These factors and the other 

factors discussed above should have been taken 

into account in deciding whether or not there 

should have been a differential between the 

insured and the uninsurable and uninsurable and, 

if so, the nature and extent of any differential. 

[197] We have also concluded that, in making the 

decision as to any differential treatment of the 

uninsured and uninsurable, the recovery purpose of the 

Act which, among other things, is to restore the “social, 

economic, cultural, and environmental well-being” 225 of 

Christchurch’s communities, was not property 

considered. The area-wide nature of the decisions 

on the red zones suggests an area-wide community 

approach to recovery where practical. 

[198] We have also accepted the submission of 

Quake Outcasts that the failure of process and 

consultation in June 2011 and the delay in extending 

offers to the uninsured and uninsurable were relevant to 

the decisions relating to the appellants. 

[199] Finally, we have concluded that, when 

making the September 2012 decisions, the current very 

difficult living conditions in the red zones was a relevant 

factor that should have been taken into account. 

225 Canterbury Earthquake Recovery Act, s 3(g). 

123 


F-182 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Eliyas CJ] (2015) 1 LAW 

RELIEF 

Parties’ submissions 

[200] Quake Outcasts seek a direction under s 

4(5)(b) of the Judicature Amendment Act 1972 

requiring the respondents to remake the offer in 

light of the fact that the discount based on 

insurance cannot legitimately be applied. 

Additionally, Quake Outcasts asks that leave be 

reserved to apply for directions in the case that 

issues with compliance arise. 

[201] Fowler Developments seeks a declaration 

that there is no rational or proportional basis for 

the distinction between those who received 100 

per cent offers and the offers made to vacant 

residential land owners. 

[202] The Crown submits that the decisions were 

Cabinet decisions and not reviewable but that in 

any event the direction sought by Quake Outcasts 

is inappropriate and relief should be confined to 

declarations, to which the Crown will then 

respond. 

Discussion 

[203] We do not accept the Crown submissions that 

the decisions were made by Cabinet or a group of 

ministers on behalf of Cabinet. Legally they were the 

decisions of the Minister. The input by the Prime 

Minister and other ministers does not alter the 

position. We do, however, accept the Crown 

submission that the relief sought by the appellants goes 

beyond what would be the usual relief that would be 

given. We also note the Crown’s assurance that it 

would respond to declarations. 

[204] We therefore consider that we should make a 

declaration that the decisions relating to the uninsured 

and uninsurable in September 2012 were not lawfully 

made. The Minister and the chief executive should be 

directed to reconsider the decisions in light of this 

judgment. 

[205] While we have held that the June 2011 red 

zone measures should have been introduced 

under a Recovery Plan, it is obviously now too 

late for this to occur. In practical terms, a 

declaration as to the unlawfulness of the June 

2011 decisions would not serve any useful 

purpose and none is made. 

RESULT AND COSTS 

[206] The appeal is allowed in part. 

[207] There is a declaration that the September 2012 

decisions relating to uninsured improved residential 

property owners and to vacant residential land owners 

in the red zones were not lawfully made. 

[208] The first and second respondents in SC 

5/2014 and the respondent in SC 8/2014 are 

directed to reconsider their decisions in light of this 

judgment. 

[209] Leave is reserved to apply for any 

supplementary or consequential orders. 

[210] The first and second respondents in SC 5/2014 

are to pay to the appellants costs of $40,000 plus usual 

disbursements. We certify for three counsel. 

[211] The respondent in SC 8/2014 is to pay to the 

appellant costs of $20,000 plus usual disbursements. 226 

We certify for two counsel. 

ELIAS CJ 

* * * 

[212] The background to the appeal is the 

devastation caused by the major earthquakes 

suffered in Canterbury between 4 September 

2010 and 23 December 2011 and the legislative 

response contained in the Canterbury Earthquake 

Recovery Act 2011. The appellants own land in 

Christchurch within an area the Government 

identified in June 2011 as being unsuitable for 

building or rehabilitation within the medium 

term. Government policy has been to encourage 

the inhabitants to move away from this “red 

zone”. The encouragement has entailed making 

offers to purchase the properties within the red 

zone on behalf of the Crown, facilitating Crown 

management of the area as open space pending its 

rehabilitation and further decisions as to its future 

use. To date, the powers under the Act to compel 

changes to the zoning of the affected areas or to 

acquire the properties compulsorily have not been 

used. Instead, a programme of voluntary 

226 The costs are set at a lower level than for Quake 

Outcasts because of the secondary role played by 

Fowler Developments’ counsel in the argument. 


(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Eliyas CJ] F-183 

acquisition was initiated in June 2011 for those 

residential properties which were insured for land 

damage under the Earthquake Commission Act 

1993, through the levy imposed by that Act on 

premiums for fire insurance. 

[213] The offers for the insured residential 

properties were pitched at 100 per cent of the 

latest rating valuation of 2007 (subject to 

adjustment in cases of underinsurance). 227 

Government policy papers at the time made it 

clear that it was expected that something in the 

order of two-thirds of the purchase price paid if 

offers were accepted would be recovered through 

assignment of insurance claims. The owners of 

insured properties were given two options: 

receiving the full rating value and assigning all 

insurance claims to the Crown; or receiving the 

land component of the rating value and assigning 

their statutory cover by the Earthquake 

Commission for the land damage to the Crown 

(leaving the owners able to deal with their 

insurers for the improvements where they were 

thought to exceed the 2007 rating valuations). 

The uptake on these offers was overwhelming. 

[214] The appellants’ properties were not insured 

for land damage: either their properties comprised 

bare land, for which there was no private 

insurance available; or their homes did not have 

statutory cover under the Earthquake 

Commission Act because they were not insured 

against fire, as is required under that Act for 

cover. 228 

[215] In September 2012 the owners without land 

insurance received offers of purchase from the 

chief executive of the Canterbury Earthquake 

Recovery Authority on behalf of the Crown at 50 

per cent of the 2007 rating value of the land 

component only. (Those whose properties 

contained uninsured dwellings could salvage 

building materials or remove the buildings.) 

227 Where properties were underinsured by more than 20 

per cent against the 2007 rating valuation, the offer was 

reduced by the percentage of underinsurance. 

228 Earthquake Commission Act 1993, s 18. 

[216] Quake Outcasts is an association of 46 residential 

property owners whose homes were not insured at the 

time of the earthquakes or who had not yet built on 

residential lots. Fowler Developments Ltd is a 

housing developer which owns 11 residential bare 

lots originally in the orange zone, but brought 

within the red zone in November 2011. Quake 

Outcasts and Fowler Developments each brought 

judicial review proceedings to challenge the 

September 2012 offers by the chief executive. 

They sought orders that the chief executive offer to 

purchase their properties at 100 per cent of the 2007 

rateable value for land and improvements, the basis of 

the offers made in June 2011 to those who had 

insurance. 

[217] The applications for judicial review were 

wide-ranging and were met by wide-ranging 

defences. The questions raised included the legal 

effect of the Government’s identification of the red zone 

(which preceded all offers and on which they were 

predicated) and whether the zone could lawfully have 

been announced and acted on for the purposes of the 

offers without first adopting a Recovery Strategy or 

Recovery Plan under the Canterbury Earthquake 

Recovery Act (a process which gave opportunities for 

public participation). The litigation raised, too, 

questions about the source of the power relied on by the 

chief executive in making the offers of purchase and 

whether its exercise was lawful. Some of the matters 

of dispute which were raised in the High Court 

and Court of Appeal are no longer in issue. 

[218] In this Court, it is accepted that the offers 

which are challenged were made by the chief 

executive under s 53 of the Act, which authorises 

the chief executive to purchase property on behalf 

of the Crown. It is also accepted that the chief 

executive did not observe the requirement of s 53 

that he act in accordance with s 10 of the Act. 

Section 10 requires the chief executive, in 

exercising any of the powers conferred on him by 

the Act, to ensure that he does so “in accordance 

with the purposes of the Act” and on the basis 

that “he or she reasonably considers it necessary”. 

Since it is now not in dispute that the chief 

executive failed to observe s 10 in arriving at the 

offers, it is also no longer in dispute that the 

offers must be quashed and the decision sent back 

125 



for reconsideration by the chief executive, as 

indeed the Court of Appeal ordered. 229 No appeal 

against those orders is brought by the Crown 

parties. 

[219] Instead, Quake Outcasts and Fowler 

Developments appeal against the basis of the 

reconsideration ordered by the Court of Appeal 

and against its rejection of their contention that 

the establishment of the red zone was unlawful. 

[220] As to reconsideration of the offer, the 

appellants contend that the Court of Appeal was 

wrong to hold that the chief executive could 

lawfully distinguish between property insured for 

land damage and property not so insured when 

setting the terms of the offers to purchase. They 

seek orders that would compel the Crown to offer 

to purchase their land and improvements at 100 

per cent of the 2007 rating valuation. 

[221] As to the lawfulness of the red zone, the 

appellants say that the establishment of the red zone by 

ministers acting under Cabinet authority was unlawful 

because it was not taken under the Act and in 

accordance with its scheme, which required prior 

adoption of a Recovery Strategy or Recovery 

Plan after opportunity for public input. They say 

the red zone has “effectively eliminated any 

market for the properties” within it and is 

preventing their recovery from the effects of the 

earthquakes, contrary to the purpose of the 

legislation. In the High Court they sought 

declarations that the red zone establishment was 

unlawful and that those property owners who do not 

wish to sell to the Crown are “entitled to remain on 

their properties, supported by essential facilities, as 

permitted by law”. 

The scheme of the legislation 

[222] The Canterbury Earthquake Recovery Act 

2011 came into effect on 19 April 2011. The Act 

set up a framework under which the huge effort 

required to respond to the damage caused by the 

earthquakes could be coordinated. The responses 

229 The Minister for Canterbury Earthquake Recovery v 

Fowler Developments Limited [2013] NZCA 588, 

[2014] 2 NZLR 587 (O’Regan P, Ellen France and 

Stevens JJ) at [148] and [166]-[168]. 

necessary were principally for the Minister for 

Canterbury Earthquake Recovery and the chief 

executive of the Canterbury Earthquake Recovery 

Authority. In addition, important roles were 

recognised under the legislation for local 

government. The Minister was required to set up 

a community forum under s 6 of the Act to 

provide the Minister and the chief executive with 

information or advice in relation to the operation of 

the Act, to which they were obliged to have regard. 

A separate Parliamentary forum, comprising 

members of Parliament living in greater 

Christchurch or representing constituencies in 

greater Christchurch was to be established under 

s 7, also to provide the Minister with information 

or advice in relation to the operation of the Act. 

[223] The purposes of the Act are contained in s 3: 

“3 Purposes 

The purposes of this Act are – 




recover from, the impacts of the 

Canterbury earthquakes: 








recovery: 


any land, structure, or infrastructure 

affected by the Canterbury earthquakes: 






(g) to restore the social, economic, cultural, 

and environmental well-being of greater 


(h) to provide adequate statutory power for 

the purposes stated in paragraphs (a) to 

(g): 

… … … … …” 



[224] Section 10(1) and (2) provide: 

“10 Powers to be exercised for purposes of this Act 

(1) The Minister and the chief executive must 

ensure that when they each exercise or claim 

their powers, rights, and privileges under this Act 

they do so in accordance with the purposes of the 

Act. 

(2) The Minister and the chief executive may 

each exercise or claim a power, right, or 

privilege under this Act where he or she 

reasonably considers it necessary.” 

[225] Principal functions conferred upon the 

Minister under the Act were to recommend for 

adoption by Order in Council an overarching 

Recovery Strategy for greater Christchurch (with 

opportunity for local government and community 

input, including at public hearings), and to direct 

“responsible entities” (identified under the Act as 

the chief executive of CERA, councils, 

government departments, Crown entities or 

instruments, “requiring authorities” under the 

Resource Management Act 1991, and network 

utility operators) to develop Recovery Plans for 

all or part of greater Christchurch, for approval 

by the Minister after notification of drafts and 

opportunity for written comments by a date 

specified in the notice. 230 

[226] A Recovery Strategy may specify: 231 

(a) the areas where rebuilding or other 

redevelopment may or may not occur, and 

the possible sequencing of rebuilding or 

other redevelopment: 

(b) the location of existing and future 

infrastructure and the possible sequencing of 

repairs, rebuilding, and reconstruction: 

(c) the nature of the Recovery Plans that may 

need to be developed and the relationship 

between the plans: 

(d) any additional matters to be addressed in 

particular Recovery Plans, including who 

should lead the development of the plans. 

The effect of a Recovery Strategy is explained in 

s 15 of the Act: 

230 Canterbury Earthquake Recovery Act 2011, ss 4, 8 & 16. 

231 Section 11(3). 

“15 Effect of Recovery Strategy 

(1) No RMA document or instrument referred to 

in section 26(2), including any amendment to 

the document or instrument, that applies to 

any area within greater Christchurch may be 

interpreted or applied in a way that is 

inconsistent with a Recovery Strategy. 

(2) On and from the commencement of the 

approval of a Recovery Strategy, the 

Recovery Strategy— 

(a) is to be read together with and forms 

part of the document or instrument; and 

(b) prevails where there is any inconsistency 

between it and the document or 

instrument. 

(3) No provision of the Recovery Strategy, as 

incorporated in an RMA document under 

subsection (2)(a), may be reviewed, changed, 

or varied under Schedule 1 of the Resource 

Management Act 1991.” 

[227] A draft Recovery Strategy must be 

developed in consultation with those persons or 

bodies the Minister is directed under the Act to 

consult and those persons or bodies the Minister 

considers it appropriate to consult. 232 The draft 

must be notified and there is a requirement for 

public hearings to be held before it is adopted by 

Order in Council on the recommendation of the 

Minister. 233 Once enacted by Order in Council, 

no instrument or document adopted under the 

Resource Management Act is to be interpreted or 

applied inconsistently with the Recovery 

Strategy. 234 The Strategy itself is to be read 

together with and to form part of any Resource 

Management Act instrument or document, but 

may not be changed or varied using the 

procedures under the Resource Management 

Act. 235 

[228] Recovery Plans are provided for by ss 16– 

26. The Act itself requires a Recovery Plan to be 

developed for the whole or part of the central 


233 Sections 11-13. 


235 Section 15(2) and (3). 

127 



business district under the leadership of the 

Christchurch City Council. 236 In the balance of 

greater Christchurch the development of 

Recovery Plans is a matter the Minister may 

direct a “responsible entity” 237 to undertake, 

following any procedure specified by the 

Minister. The matters for the Plan are to be the 

subject of direction by the Minister, and “may 

include provision, on a site-specific or wider 

geographical basis” for: 238 

(a) any social, economic, cultural, or 

environmental matter: 

(b) any particular infrastructure, work, or 

activity. 

[229] In setting the procedure for the development 

of a Recovery Plan, the Minister is required to 

have regard to: 239 

(a) the nature and scope of the Recovery Plan; 

and 

(b) the needs of people affected by it; and 

(c) the possible funding implications and the 

sources of funding; and 

(d) the New Zealand Disability Strategy; and 

(e) the need to act expeditiously; and 

(f) the need to ensure that the Recovery Plan is 

consistent with other Recovery Plans. 

[230] The development and consideration of a 

Recovery Plan is not subject to the provisions of 

the Resource Management Act and consultation 

is required in respect of the development and 

consideration of a Recovery Plan only to the 

extent required by the Minister in his directions 

as to procedure and through notification of the 

draft and the ability to provide written comments 

on it. 240 The powers of the Minister to set the 

procedure to be followed would permit the period 


237 Defined in s 4 to mean: “the chief executive, a council, a 

council organisation, a department of the Public 

Service, an instrument of the Crown, a Crown entity, a 

requiring authority, or a network utility operator”. 

238 Section 16(2). 

239 Section 19(2). 

240 Section 19. Further requirements are placed upon the 

Minister in relation to the CBD: s 17. 

for submissions to be limited where there is a 

need to act expeditiously. 241 

[231] After notification in the Gazette, local 

authorities and those exercising functions under 

the Resource Management Act are obliged to act 

consistently with the Plan. 242 Decisions made 

under the Resource Management Act must not be 

inconsistent with a Recovery Plan in respect of 

matters identified in s 23(1) (concerning grants, 

notices of requirement, transfer of resource 

consents, changes and reviews of resource 

consents, and review and changes to Resource 

Management documents). If amendments to 

Resource Management Act documents are 

required to give effect to a Recovery Plan 

councils must amend the relevant RMA 

documents. 243 Instruments specified in s 26 of the 

Act (relating to plans under the Local Government 

Act 2002 and the Land Transport Management Act 

2003 and strategies, policies and plans approved under 

the Conservation Act 1987, the Reserves Act 1977, 

the Wildlife Act 1953 and under other enactments 

authorising management plans for reserves) must not 

be inconsistent with a Recovery Plan. 

[232] In addition to the ability to direct the 

content and procedure to be followed in setting a 

Recovery Strategy and Recovery Plans, the 

Minister is given direct powers to intervene in 

respect of a range of controls under the Resource 

Management Act under s 27 of the Act and to 

recommend the adoption of Orders in Council for 

the purposes contained in s 3(a) to (g) of the 

Act. 244 They include orders modifying, 

exempting, or extending the provisions of any 

enactment (defined in s 4 not only to include the 

primary and delegated legislation identified in s 

29 of the Interpretation Act 1999 but also to 

include “any plan, programme, bylaw, or rule 

made under any Act”). 245 The power to make 

Orders in Council for the purpose of the Act 

241 Section 19(2)(e). 



244 Section 71(1). 

245 Section 71(2). 



includes the power to grant exemptions from, 

modification and extensions of enactments in 

particular under the Building Act 2004, the 

Resource Management Act, the Earthquake 

Commission Act, the Health Act 1956, the Local 

Government Acts, the Public Works Act 1981 

and the Rating Valuations Act 1998. 246 

[233] The powers conferred include those to 

suspend, amend or revoke Resource Management 

plans, bylaws and other instruments and to cancel 

or suspend resource consents, existing use rights, 

and certificates of compliance. 247 In addition, 

under ss 48–50 of the Act, powers are conferred 

upon the Minister to give directions to councils to 

take or stop any action, and as to the performance 

of any functions or the exercise of any powers. In 

the event of non-compliance, the Minister can 

call-in and exercise any of the powers of 

councils. 

[234] No obligations of consultation are imposed 

on the Minister in connection with these powers, 

although they must be exercised in conformity 

with s 10 and therefore the s 3 purposes of the 

Act which include enabling “community 

participation in the planning of the recovery of 

affected communities without impeding a 

focused, timely, and expedited recovery”. 

[235] Although the powers conferred on the 

Minister may impact adversely on individual 

property owners (for example, in overriding 

existing use rights), s 67 makes it clear that, apart 

from specific provision for compensation in the 

Act for compulsory acquisition of property or 

arising out of the demolition of dangerous 

buildings, nothing in the Act “confers any right to 



compensation”. Section 67 also excludes the 

application of the compensation provisions in s 

185 of the Resource Management Act in relation 

to any matter to which subpart 5 applies. 

246 Section 71(3). 

247 Section 27(1) and (2). 

[236] No doubt because of the extent of the 

powers conferred (which permitted orders with 

retrospective effect to the date of the 4 September 

2010 earthquake, gave such orders the force of 

law as if enacted as part of the Act, and which 

prevented the recommendation of the Minister 

being challenged or called into question in any 

court), 248 the Act provides for review of proposed 

orders by a panel of experts, including a former 

or retired judge of the High Court or lawyer, as 

well as envisaging Parliamentary oversight, both 

general and as enhanced by the Act. 249 

[237] The chief executive of the Authority has 

powers under the legislation to collect and 

disseminate information. Under s 53 the chief 

executive may purchase any land or personal 

property in the name of the Crown. In addition, 

the chief executive has powers of compulsory 

acquisition under ss 54–58, with consequential 

rights to compensation under ss 60–67. But there 

is no general right to compensation by the Crown 

arising out of earthquake damage and the exercise 

of powers under the Act, as s 67 makes clear. 250 

[238] The Minister is required to report quarterly 

on the operation of the Act. 251 The Minister must 

also present an annual report on the operation and 

effectiveness of the Act every 12 months. 252 

Background to the offers 

[239] By June 2011 the rebuilding of Christchurch 

seemed stalled. Significant earthquakes were still 

occurring. Decisions on insurance, building 


249 See ss 72-76 (Review Panel); and s 7 (Cross-party 

forum). 

250 “67 No compensation except as provided by this Act 

(1) Nothing in this Act, apart from this subpart or 

section 40 or 41, confers any right to 



compensation. 

(2) Nothing in section 185 of the Resource 

Management Act 1991 applies in relation to any 

matter to which this subpart applies.” 



129 



consents, and the status of affected land were 

largely on hold, preventing affected communities 

from being able to move forward, while expert 

assessment identified where remediation of land 

was feasible. Ministers were understandably 

anxious to provide as much certainty as was 

possible so that decisions could be taken where 

rebuilding was appropriate. Considerable 

engineering information had been obtained by the 

Government in the months since the 22 February 

2011 earthquake and there was urgency in its 

public release. The Cabinet paper of 24 June 

2011 which recorded the decisions taken on 22 

June spoke of the need for a “circuit-breaker … 

to arrest the current decline in confidence and to 

form a solid basis for recovery”. 253 

[240] Further earthquakes in June 2011 added to 

the uncertainty and led to the Cabinet decision on 

20 June to delegate decision-making about land 

remediation directions to a group of eight senior 

ministers. 254 They were empowered by Cabinet to 

act until 27 June (the date of the next Cabinet 

meeting). The senior ministers made the decisions 

as to future directions on 22 June and they were 

announced publicly on 23 June 2011. The 

decisions and the basis for them were reported to 

Cabinet in a paper of 24 June 2011. 

[241] Cabinet was advised by the Minister for 

Earthquake Recovery in the paper of 24 June 

2011 that, instead of a programme to assess each 

parcel of land individually for suitability for 

remediation, “a full area-wide land remediation 

solution” was necessary. 255 The paper described 

the process adopted for classifying affected areas 

according to whether immediate repairs were 

feasible (a “green” zone), those where further 

work was necessary to decide whether repairs 

were feasible (the “orange” and “white” zones) 

and those where remediation of the land was 


Canterbury Earthquakes” (24 June 2011) at [19]. 

254 Similar delegation was conferred on 23 May 2011 but 

had expired on 6 June. 



considered uneconomic (“red” zones). 256 The 

classification of land according to these 

categories was based on “the severity and extent 

of land damage, the cost-effectiveness and social 

impacts of land remediation”. 257 The land within 

the red zones was assessed to be at risk of further 

damage in the event of further seismic activity, 

floods, and spring tides and to require rebuilding 

of infrastructure. The paper indicated that the red 

zone comprised areas where rebuilding “may not 

occur in the short-to-medium term because the 

land is damaged beyond practical and timely 

repair”. 258 

[242] In the residential red zone, properties 

relatively undamaged would be caught up in the 

remedial works on neighbouring properties and 

could be “at risk” from the work. 259 It was 

estimated that the works necessary could take 

more than five years and that it was desirable to 

relocate all residents while they were carried 

out. 260 

[243] The paper reported and explained the 

decision to make offers of purchase to owners of 

insured residential properties within the red zone. 

Ministers had taken the view that it was not 

appropriate to leave private insurance claims 

within the red zone to “play out without any 

intervention”. 261 There was uncertainty about the 

extent to which private insurance would cover the 

costs of the extensive remedial work required. 

The ministers considered that leaving things to be 

worked out between individuals affected and their 

insurers would not meet the objects of the 

legislation in providing certainty and confidence 

through a simple process. 262 

[244] These considerations led to the offers to 

purchase at 100 per cent of the 2007 rating 

256 At [10]. 

257 At [10]. 

258 At [10](c). 

259 At [38]. 

260 At [39]. 

261 At [50]. 

262 At [50]. 



valuation for those whose homes were insured. 

Such offers were said to ensure that the equity of 

home-owners in their properties would be 

preserved. The paper itself considered that the 

properties currently had “minimal value”. 263 

[245] This proposal may not have entailed 

recourse to the coercive powers available under 

the legislation to clear the area, but it is clear that 

the offers were pitched to encourage relocation of 

those who were insured and Crown ownership of 

the land. 264 And the policy of Crown acquisition 

and preference for clearance was reinforced by 

messages sent to the property owners with the 

offers pointing out that insurers might not be 

willing to renew policies in the red zone and 

might even cancel them, that the Council and 

utility providers might conclude that maintenance 

of services was not practicable within the zone, 

and that ultimately the Crown might have to 

compulsorily acquire the land at its then value 

which was likely to be substantially below the 

price then on offer. 

[246] The resulting depopulation expected as a 

result of acceptance of the offers was itself 

expected to accelerate the running down of 

infrastructure and services, as was made clear in 

the Cabinet paper of 24 June 2011. It is clear too 

that the policy adopted was to encourage that 

effect. The infrastructure available within the red 

zone was identified as an issue in the paper. 

While there was no talk of use of the coercive 

powers under the Act to direct Councils in 

connection with the provision and maintenance of 

infrastructure and services, the paper advised that 

the relevant Councils would be “asked to discuss 

any proposed maintenance and repair plans, for 

the infrastructure in these areas, or any proposed 

regulatory interventions for the areas” because of 

the view taken that “[as] a result of these offers 

there is unlikely to be any justification in the near 

263 At [89]. 

264 As is pointed out by Glazebrook J at [83] when 

subsequently property in the Port Hills was moved from 

white to red status, it was without adopting a similar 

policy of clearance and Crown ownership. 

to medium term for the infrastructure and 

services in these areas to receive any more than 

temporary repairs”. 265 

[247] Successful implementation of policies 

designed to achieve population relocation and 

expected to have an impact on the need for 

maintenance and repair of services and 

infrastructure inevitably added to the uncertainty 

and hardship being experienced by those to 

whom offers were not being made in June 2011. 

That uncertainty and hardship could reasonably 

have been seen to be likely to be exacerbated if 

there was significant delay in addressing the 

position of those property owners who were not 

eligible to receive the June 2011 offers. 

[248] Their position had been acknowledged in 

the Cabinet paper of 24 June 2011. The paper 

advised that “[c]onsideration will need to be 

given over time to the position of these 

people”: 266 

Neither uninsured residential properties nor 

vacant lots are covered by EQC land or 

improvements insurance. For residential owners, 

the risks of not having insurance were risks that 

ought to have been considered when making the 

decision to invest in the property. Residential 

owners should have been aware of the risks when 

choosing not to purchase insurance. Vacant lot 

owners were not eligible for EQC or private 

insurance cover. 

[249] At the time announcements were made in 

June 2011, it seems to have been envisaged that 

the position of these uninsured owners would be 

considered within a matter of weeks. The 

eventual fifteen month delay was explained by 

the Minister in an affidavit in the proceedings as 

having been caused by the need for the Authority 

to prioritise its efforts. 

[250] The Authority had much to do. In 

particular, there was pressing need to work out 

how the rehabilitation of properties and land 

within other areas identified as orange and white 



266 At [62]-[63]. 

131 



zones (in which decisions about rebuilding and 

reinstatement had yet to be made) was to be 

progressed. Even so, once the decisions had been 

taken that rehabilitation in the medium term of 

land within the residential red zone was not 

feasible and that clearance and Crown ownership 

were to be encouraged (with an expectation that 

infrastructure and services would be affected), 

Government effort to respond to the position of 

uninsured and non-residential property owners in 

the red zones does not seem to have been 

comparable to the effort necessary to make 

progress in the orange and white zones. Nor is it 

clear it would have entailed competition for 

resources. The sort of geophysical and social 

assessments still to be undertaken for the orange 

and white zones before future directions could be 

set had been completed for the residential red 

zone with the adoption of the June 2011 policies. 

The further policy directions to be set were as to 

whether offers to purchase were to be made and, 

if so, on what terms. 

[251] In May 2012 the Minister proposed offers 

of 100 per cent to seven not-for-profit 

organisations which had insurance for 

improvements but were not eligible for the 

Earthquake Commission cover for land. 267 

Similar offers were to be made for residential 

properties where homes were under construction, 

if they were covered by insurance for the building 

work, even though they were not eligible for 

Earthquake Commission cover for the land. 

[252] That left insured residential leasehold 

properties, vacant land and uninsured residential 

properties, and insured commercial or industrial 

properties. A Cabinet paper approved by the 

Minister on 30 August 2012 eventually dealt with 

the position of these groups of property 

owners. 268 Insured commercial and industrial 



not-for-profit organisations” (signed by the Minister on 25 

May 2012). 

268 

See Cabinet Paper “Red Zone Purchase Offers 

for Residential Leasehold, Vacant, Uninsured, and 

property owners received an offer based on 100 

per cent of the 2007 valuation for improvements 

and 50 per cent of the land value (which was not 

eligible for Earthquake Commission insurance 

since it was not residential). 269 Although vacant 

land was not eligible for Earthquake Commission 

insurance, the Minister proposed a 50 per cent 

offer to encourage the owners to move on and to 

reflect the fact that there was some residual value 

in the land (although it was considered to be well 

below the 50 per cent offer). The owners of 

insured residential leasehold properties, which 

were subject to perpetual leases on land owned by 

the Waimakariri District Council, received offers 

based on 100 per cent of the rating valuations, 

putting them in the same position as the insured 

properties which had received offers under the 

June 2011 decisions. 

[253] Residential properties which were not 

insured or which had not maintained insurance 

were to be offered 50 per cent of the 2007 value 

for the land only but had rights to salvage 

building materials or relocate uninsured 

buildings. These proposals became the basis of 

the offers announced on 13 September. The offers 

were accompanied by information which 

mirrored that provided with the June 2011 offers 

regarding the likely running down of 

infrastructure and services within the residential 

red zone and the possibility that the Crown would 

later compulsorily acquire the properties at value 

unlikely to match the offers. 

[254] After the decisions of June 2011 and while 

the ministers were considering the approach to be 

taken to those in the red zone who were 

uninsured, a draft Recovery Strategy was being 

developed and was eventually adopted in May 

2012. It did not deal with the areas where 

rebuilding could occur. The Recovery Strategy 

acknowledged that when the legislation was 

Commercial/Industrial Properties” (signed by the 

Minister on 30 August 2012). 

269 As with the offers made in June 2011, the property 

owners had the option of accepting 50 per cent of the 

land value and retaining their private insurance rights. 



passed it had been envisaged that this assessment 

would form part of the Recovery Strategy. It 

explained that it had not proved possible to 

address questions of zoning and timing of 

rebuilding in the Recovery Strategy because the 

task had been too large and too complex. Nor was 

it “yet clear where Recovery Plans – which are 

statutory documents with the power to overwrite 

a range of planning instruments – will be the 

most appropriate and effective way to provide 

direction”. 270 

[255] The Recovery Strategy referred to decisions 

taken outside the Recovery Strategy processes 

under the Act in respect of the residential red 

zone, noting that clearance of the residential red 

zone was occurring to “return … the land to open 

space”. The process was described as consisting 

of “three stages over two to three years”: 271 

The first stage is to remove built structures and 

services. The second will involve larger-scale 

land clearance and grassing. The final stage will 

be to liaise with utility providers to remove 

public infrastructure no longer needed. After 

that, Land Information New Zealand will 

manage the open space. 

[256] In the development of a “Land Use 

Recovery Plan”, directed to be undertaken by the 

Minister, it was acknowledged that the “significant 

hazard” had already been addressed through 

establishment of the red and green zones. 

THE APPEAL 

[257] The Court of Appeal allowed an appeal 

against the determination of Panckhurst J in the 

High Court that the June 2011 decision was not 

lawfully made. 272 But it affirmed the decision of 

the High Court that the September offers were 

themselves unlawful. The Court of Appeal 

considered that offers were made under s 53 and 

270 Canterbury Earthquake Recovery Authority “Recovery 

Strategy for Greater Christchurch” (June 2012) at 2. 

271 At 40. 

272 Fowler Developments Ltd v Chief Executive of the 

Canterbury Earthquake Recovery Authority [2013] 

NZHC 2173, [2014] 2 NZLR 54 (Panckhurst J). 

accordingly had to comply with s 10 of the Act. It 

held the chief executive had failed to comply with 

s 10 because he had failed to take into account the 

purposes of the Act under s 3. Unlike the June 

2011 decision to offer 100 per cent of the 2007 

rating valuations, the Court of Appeal considered 

there had been no attempt to ensure that the offers 

were “calibrated to allow … home owners in the 

red zone to move on with their lives with 

confidence, simplicity and certainty”. 273 

[258] The purpose of recovery from the 

earthquakes “was not brought to bear in the 

September 2012 decision” beyond an indication 

in the Cabinet paper of 30 August 2012 that the 

50 per cent offer would provide “some support 

for recovery elsewhere”. 274 The Court of Appeal 

took the view that the decision on the face of the 

Cabinet paper was based, not on the recovery of 

those affected, but simply on three reasons 

identified in the paper why it was not appropriate 

to extend the June offer to those who were 

uninsured: “it would compensate for uninsured 

damage, it would be unfair to those who had paid 

for insurance, and it would create a moral hazard” 

(because it would encourage dependence on 

government rather than private insurance). 275 

[259] The Crown parties did not appeal the 

decision of the Court of Appeal that there was 

failure to comply with s 10. They accept that the 

exercise of the power under s 53 must be 

reconsidered in accordance with the recovery 

requirements of the Act, as the Court of Appeal 

ordered. 276 

[260] The acceptance that the offers were made 

under s 53 effectively overtakes the argument of 

the respondents that sufficient authority for the 

offer was to be found in the Cabinet approval of 

the funding on which it was based (necessary to 



[2014] 2 NZLR 587 at [137]-[138]. 

274 At [140]. 

275 At [140]. 

276 At [148] and [166]-[168]. 

133 



authorise an appropriation under the Public 

Finance Act 1989). As the Court of Appeal said 

of this argument, obtaining the necessary 

financial authority to comply with the Public 

Finance Act did not detract from the fact that the 

offers themselves were made by the chief 

executive under s 53. 

[261] Reconsideration of the exercise of the s 53 

powers will have to address the circumstances as 

they now exist when taking into account the 

purposes of the Act in promoting recovery. That 

may well require consideration of the delay and 

its effect and the hardship caused by depopulation 

of the red zone in the meantime, with associated 

running down of its infrastructure and 

amenities. 277 Given the fact that the decision has 

to be taken over again on a wider basis, it is not 

appropriate to enter into assessment of the factors 

that will be relevant, beyond indicating what they 

may include in dealing with the points raised by 

the present appeal. 

[262] The appellants were granted leave to appeal 

on two points. 278 I deal with them in reverse order 

to the order in the leave judgment. The first is 

whether there was a rational basis for the 

distinction drawn between those owners who 

were insured and those who were uninsured. The 

second is concerned with lawfulness of the 

establishment of the red zone and the Crown 

alternative responses: that the zone had no legal 

effect and was simply the provision of expert 

information obtained by the Crown as to the 

physical consequences of the earthquakes; and 

that the Government decisions were in any event 

ones that it was able to take outside the 

framework of the Canterbury Earthquake 

Response Act. 

(1) Was insurance a proper basis for distinction? 

[263] The appellants have challenged the finding 

of the Court of Appeal that there is no reviewable 

277 See also the points made by the Court of Appeal referred 

to by me at [257]-[258]. 

278 Quake Outcasts v Minister for Canterbury Earthquake 

Recovery [2014] NZSC 51. 

error in the approach which differentiates 

between the appellants and those who received 

offers amounting to 100 per cent of the 2007 

rateable value of their property on the basis of 

whether or not they were insured. This 

determination was fatal to the attempt to obtain a 

direction from the Court of Appeal, in application 

of a principle of even-handedness, that the Crown 

pay the appellants who wished to sell 100 per 

cent of the rateable value of their properties. 

[264] The Court of Appeal held: 279 

[150] We accept that there is a rational basis for 

differentiating between insured residential 

property owners and uninsured owners such as 

the respondents, given the potential value to the 

Government of the rights against EQC and 

insurers that were assigned to the Government 

under the contracts resulting from the 100 per 

cent offers. That is the very differentiation made 

in the June 2011 decision and the September 

2012 decision. We do not accept that the mere 

fact that a different approach was taken in 

relation to the respondents than in relation to the 

recipients for 100 per cent offers constitutes a 

reviewable error. 

This conclusion, it seems to me, is a statement of 

the obvious. 

[265] The Court of Appeal was careful not to 

express any view on the weight reasonably to be 

given in the comparison of the treatment of the 

insured and uninsured property owners to the lack 

of comparable off-set provided by recovery of 

insurance. It could not properly have done so 

given the view that the circumstances needed 

reconsideration in the light of s 3 and especially 

the recovery principle. 

[266] In any such further comparison it may be 

necessary to confront the fact that, as the Court of 

Appeal said, the Cabinet papers associated with 

the June 2011 offer do not seem greatly to have 

emphasised the recovery of insurance. 280 In those 



[2014] 2 NZLR 587. 

280 At [149]. 



circumstances, the Court thought it hard to say 

that the likely recovery from the Commission and 

insurers “loomed large in the decision 

making”. 281 If the recovery of insurance did not 

loom large in the decision making in June 2011, it 

may suggest that distinguishing between property 

owners on the basis of their insurance status is 

not reasonably to be treated as a principal 

consideration in addressing the position of those 

who were not eligible to receive the 100 per cent 

offers. 

[267] Although it is suggested that the offers 

were generous when compared with the likely 

value of the land as at June 2011, 282 when the 

decisions as to Crown acquisition and 

encouragement of clearance were made, the June 

2011 offers were not based on post-earthquake 

valuations, almost certainly because of the 

policies of encouraging clearance and promoting 

the policies of the Act in recovery. The same 

policies may be thought to apply, in application 

of s 3, to the uninsured owners, even if some 

differentiation in the offers made to them and to 

the insured homeowners is appropriate. If so, the 

post-earthquake values of the land may not be 

particularly material to the decision still to be 

made, especially since the benchmark provided 

by the 2007 rating valuations was accepted for 

the purpose of the June 2011 offers. 

[268] The adoption of the red zone classification 

may itself have depressed the market value of the 

land, following the earthquakes. As the June 

Cabinet paper acknowledged, some of the 

properties within the zone were less affected than 

others but the view was taken that there were 

benefits in an area-wide response, including to 

facilitate Crown rehabilitation and determination 

of future use. 283 In those circumstances, it may be 

appropriate in the s 53 reconsideration in 

accordance with s 3 to take into account the 

281 At [149]. 

282 Including by William Young J at [365]. 



benefits to the wider community in the area-wide 

preference. 

[269] If the area-wide offers have had the 

practical effect of circumventing the policy of the 

legislation in community participation in 

identification of areas where rebuilding should 

not take place or should be sequenced, then it 

may be that the disempowerment is also a 

circumstance to be taken into account in dealing 

with the owners who remain. 

[270] The original linkage of the offer with the 

Earthquake Commission cover both in the June 

2011 offer and in the September offer was fairly 

crude. Such cover is ancillary to the 

improvements, being confined to land within 8 

metres of the dwelling and capped at $100,000 

(plus GST). 284 The offers made in June 2011 

were for the rateable value of the unimproved 

land as a whole. It may be that the value of the 

land component is substantially exhausted by the 

value of the house and its site and that the cap of 

$100,000 is generally in line with the offer of 100 

per cent of the valuation, but it is not self-evident 

that it explains the difference in the offers. The 

offer made to insured residential owners (100 per 

cent of the rating value of the land at 2007) was 

acknowledged to have been in most cases 

substantially higher than the post-earthquake 

value. Nor was the basis on which the 50 per cent 

figure was arrived at in September 2012 greatly 

explained in the 30 August 2012 Cabinet paper. 

[271] The Court of Appeal also pointed out that 

the suggestion in the 30 August Cabinet paper of 

the need to avoid a “moral hazard” in equivalent 

treatment of those who were insured and those 

who were not ran up against the point that a 

number of the owners could not insure and others 

had made “slip ups” in circumstances where 

moral culpability was not a helpful concept. 285 

284 

Earthquake Commission Act, ss 2 (definition of 

“residential land”) and 18. 



[2014] 2 NZLR 587 at [152]. 

135 



Indeed, in speaking of the need for principles 

applied “on a more generic level”, the Court 

acknowledged the significant impact on the lives 

of those in the position of the Quake Outcasts: 286 

While the recipients of the 100 per cent offers 

have, for the main part, been able to apply the 

proceeds of the Crown offer towards buying a 

new home elsewhere, many of the respondents 

are left in a very precarious position because of 

the very significant shortfall between the amount 

derived from the offer and the cost of acquiring a 

home elsewhere. In many cases they are retired 

and not in a position to take on any significant 

debt. We acknowledge the significant impact this 

is having on their lives. 

[272] There were a number of inconsistencies in 

the treatment of those who were insured, 

uninsured, or unable to insure their land. In 

reconsideration of the offers to be made, such 

anomalies may need to be justified in accordance 

with the purpose of the Act under which they are 

made. 

[273] Matters such as these are for consideration, 

if ultimately relevant, when the chief executive 

reconsiders the offer to be made. Since the Court 

of Appeal considered that the offers had not been 

“calibrated” by the need to consider the 

community recovery principle referred to in s 3, 

as they should have been, the entire 

circumstances must be reassessed. 287 The Act is 

concerned with the recovery of communities. It is 

not necessary to characterise the appellants as 

comprising a community to make their 

circumstances relevant. I agree with Glazebrook J 

that communities are made up of individuals. The 

Act is concerned with the recovery of the people 

whose communities have been shattered by the 

earthquakes and by the necessary dislocation they 

have entailed, and their reintegration into 

communities. The area-wide solutions promoted 

by the Government require all those within an 

affected area to be treated as members of that 

286 At [152]. 

287 At [137]-[138]. 

community and the subject of consideration in 

achieving the purposes of the Act. 

[274] These are some of the circumstances 

relevant. No doubt there are others. The Court of 

Appeal said that “the mere fact” that some 

different basis of offer could be made was not 

reviewable error and might be justified. 288 That 

seems to me to be undoubtedly correct. To what 

extent difference can be justified remains 

something for assessment in the context of proper 

consideration under ss 10 and 3. In that 

assessment, it may still be reasonable to draw 

some distinction between those who were insured 

and those in respect of whom the Crown will 

obtain no off-setting recovery. Dismissing the 

appeal on this ground is simply to leave this 

matter, as with other matters, open for 

consideration if it turns out reasonably to bear on 

the decision. 

(2) The lawfulness of the establishment of the red zone 

[275] The second question on which leave was 

given concerned the lawful basis of establishment 

of the red zone. This arose out of the appellants’ 

challenge to the June 2011 decision as substratum 

to the September 2012 offer. I have considerable 

sympathy with Panckhurst J’s view that, in 

substance, the Government’s decisions as to the 

zoning of earthquake affected areas of 

Christchurch cannot be characterised simply as 

the dissemination of its opinion. 289 289 I have 

come to the view however that this question is 

one it is unnecessary to resolve in the context of 

the use of powers to purchase without 

compulsion under s 53. Challenges to the validity 

of use of other powers under the Act or reliance 

on the red zone establishment to justify the 

running down of infrastructure or essential 

services could well make it necessary to decide in 

another case the status of the Government 

288 At [150]. 

289 Fowler Developments Ltd v Chief Executive of the 

Canterbury Earthquake Recovery Authority [2013] 

NZHC 2173, [2014] 2 NZLR 54 at [60]. 



decisions of June 2011 and their lawfulness in the 

absence of a Recovery Strategy or Plan. 

[276] The scheme of the Act may mean that the 

coercive powers under the Act, including to 

modify the obligations of local authorities and 

providers of essential services, can be exercised 

only after prior adoption of a Recovery Strategy 

or (if time does not permit) a Recovery Plan. In 

addition, as already suggested, it may be that the 

absence of a Recovery Strategy or Plan is a 

circumstance to be taken into account under ss 10 

and 3 when reconsidering the offer to be made 

under s 53. But I am of the view that the scheme of the 

Act does not compel the adoption of a Recovery 

Strategy or Recovery Plan before exercise of the power 

to purchase on behalf of the Crown under s 53. And 

I consider that neither the question of the legal effect 

(if any) of the red zone nor the subsequent questions as 

to the source of any power to accomplish it is material to 

the disposition of the present appeal. It is necessary to 

explain why. 

[277] The power under s 53 to purchase land 

where such purchase is consistent with the 

purposes of the Act is not directly linked to the 

adoption of a Recovery Strategy and the 

provisions for Plans, directions, and orders which 

affect rights of land use. The text of the Act does 

not make recourse to s 53 dependent on a 

Recovery Strategy or Plan. The structure of the 

Act places the sections dealing with the Recovery 

Strategy and Recovery Plans within subpart 3 of 

the Act which deals with “Development and 

implementation of planning instruments”. That 

subpart also deals with the consequences of the 

Recovery Strategy and Plans for Resource 

Management Act instruments and consents, and 

contains s 27 which empowers the Minister to 

intervene in local government and other matters 

concerning land use. 

[278] I do not think, however, that either the 

absence of explicit reference to the Recovery 

Strategy in connection with the power to 

purchase land or the location of s 53 in subpart 4 

(“Further provisions”) under the subheading 

“Provisions relating to real or personal property” 

could be determinative. The overall scheme and 

purpose of the Act is to coordinate response to 

the earthquakes. Section 3 emphasises at the 

outset that the purposes of the Act are to ensure 

community response as well as recovery. It 

stresses the enabling of community participation 

in the planning of the recovery. The scheme of 

the Act is that the “overarching” strategy 

provided by a Recovery Strategy and developed 

through Recovery Plans, adopted after 

community input, is central to the coordinated 

and ordered response enabled by the Act. The 

Strategy is the principal mechanism for ensuring 

community participation. 

[279] Does the scheme of the Act suggest that the 

powers of purchase under s 53 can be used only 

under a framework of Recovery Strategy and 

Plans? An interpretation that the Crown cannot 

treat for purchase of land from individual owners 

except under Plans which have in themselves 

significant legal impacts on property use imposes 

a substantial limitation on the power under s 53, 

which in its own terms is constrained only by s 

10. The context is a voluntary purchase (the use 

of the compulsory powers of acquisition may 

well be different). None of the land use and 

regulatory effects provided for as a consequence 

of the adoption of a Recovery Strategy or Plan 

attaches to acquisition of ownership interests. 

There may be a number of reasons why waiting 

for the development of a Recovery Strategy or 

Plans is both unnecessary and undesirable if the 

chief executive on behalf of the Crown and after 

taking into account the purposes of recovery and 

expedition in s 3 has the opportunity to make 

purchases which further the policies of the Act – 

as the offers made in June 2011 did in enabling 

those who accepted them to move on. 

[280] The fact the offers were made for all 

properties within a particular area and under a 

government policy to encourage clearance and 

Crown ownership has however caused me 

considerable pause. In agreement with 

Glazebrook J, I think the characterisation in the 

Crown submissions of the decisions of June 2011 as the 

provision of information only is inadequate description. 

The decisions gave signals to insurers and 

137 



property owners which they were expected to use 

in determining how to proceed. They were 

expressed in terms that suggested rebuilding 

could not occur within the red zone. Against a 

background of legislative powers to compel the 

outcomes signalled (compulsory powers which 

were specifically mentioned in the information 

provided with the offers), the decisions indicated 

that those within the green zone could proceed to 

rebuild and deal with their insurers on that basis. 

It indicated that rehabilitation and rebuilding 

were not appropriate in the red zone. It strains 

credulity to think that Councils and insurers 

would not be expected to act on the message, 

even though no direct compulsion was adopted. 

[281] Although there had been no intervention to 

prohibit building, the rebuilding after the 

earthquakes was effectively stopped in fact while 

announcements based on the land damage and 

remediation findings commissioned by the 

Government were being awaited. In addition, the 

Department of Building and Housing was known 

to be working on new building guidelines for 

Christchurch. Although notionally building 

consents could have been granted, the Council 

was not in fact at the time granting such consents 

and did not in fact do so for the red zone after the 

announcements of June 2011. 290 When the 

Department of Building and Housing provided 

engineering guidelines for repair and rebuilding 

of houses in July 2011, they applied only to the 

green zones. 

[282] Counsel for the respondents suggested at 

the hearing that the building consent regime was 

not affected by the June 2011 offers and that 

“[t]he reason that insurance claims could be 

settled more promptly and insurance renewed in 

the green zone was because of the factual 

reassurance provided by the announcement that, 

290 Counsel for the respondents confirmed as much to the 

Court, saying that the Council had “dragged its feet” for 

some time but that, in his understanding, some consents 

had been more recently granted and, if they had not, the 

Council could be compelled to grant consents through 

mandamus. 

based on the best available engineering evidence, 

there were no area-wide land issues”. That may 

be formally correct although in practice those in 

the red zone who wished to rebuild were left in 

limbo, unable to obtain building consents or 

insurance. 

[283] Again it strains credulity to think that the 

Government announcements made in June 2011 

did not contribute to that state and were simply 

the provision of information which left those 

affected free to pursue their own ends based on it. 

This was formally adopted and announced 

Government policy which the Minister had the 

power to enforce if encouragement proved 

inadequate. Such enforcement could be through 

exercise of the powers conferred under s 27 to 

suspend, revoke or amend a range of controls 

under the Resource Management Act or through 


Plan. 

[284] That the announcements of June 2011 were 

not simply the provision of information but were 

part of an overall Government policy for 

Christchurch is underscored by the indication in 

the June 2011 Cabinet paper that territorial 

authorities would be expected to discuss 

proposals for repair and maintenance of 

infrastructure and the acceptance of the need for 

government intervention through making the 

offers to achieve clearance, rather than leaving 

recovery in the red zone to be a matter to be 

negotiated between property owners, insurers, 

and Councils on the basis of the opinions 

provided. 291 

[285] The task of identifying where rebuilding 

could occur was envisaged by the Act to be the 

purpose of a Recovery Strategy and Plans. 

Section 11(3) made it clear that the Recovery 

Strategy would address “the areas where 

rebuilding or other redevelopment may or may 

not occur” and sequencing of rebuilding and 

redevelopment and location of infrastructure and 


Canterbury Earthquakes” (24 June 2011) at [50]-[52]. 



the possible sequencing of repairs and 

reconstruction. To the extent that the decisions 

made in June 2011 in fact accomplished the 

establishment of such areas and the location of 

infrastructure and set priorities for rebuilding and 

repair, the opportunity for community 

participation in the critical decisions was 

overtaken. 

[286] Such considerations may well be fatal to 

the exercise of other powers under the Act. It may 

be, for example, that the powers conferred on the 

Minister under s 27 could not be lawfully 

exercised without prior adoption of a Recovery 

Strategy or at the very least the adoption of a 

Recovery Plan (which could be on a directed 

truncated procedure, while subject to later 

adjustment to conform with a Recovery Strategy 

subsequently adopted). 292 In the case of a 

voluntary sale and purchase, however, I think it is 

open to the chief executive to adopt the criteria 

on which such offers are made, in compliance 

with s 10 but without there being in place an 

overarching Recovery Strategy or Recovery Plan 

adopted under the Act. As already indicated, 

compliance with s 10 may require some 

consideration of the consequences and the 

absence of opportunity to have them addressed in 

a Recovery Strategy and Recovery Plans. 

[287] The Act sets up a framework under which 

the effort of responding to the damage caused to 

property and people by the earthquakes can be 

coordinated. The offers of purchase might well 

have been made under an overarching Recovery 

Strategy adopted by the processes under the Act. 

But that sequence was not provided for explicitly 

in the legislation. I consider it too great a stretch to 

say that the use of s 53 requires prior adoption of a 

Recovery Strategy or Plan. Quite apart from the 

delay that may have been entailed, the 

consequences for land use and regulation of such 

plans would have impacted on existing use rights 

and may well have had consequences for insurance 

obligations which would have been difficult to 

predict with confidence. Adherence to the scheme 

292 Canterbury Earthquake Recovery Act, s 18. 

and purpose of the Act in exercise of powers 

under s 53 is I think sufficiently ensured by s 10. 

[288] I consider that the chief executive was 

entitled to identify the properties in respect of 

which offers were to be made on the basis of the 

expert advice accepted by the Government as to 

the areas likely to be unsuitable for reinstatement 

within the medium term. In the absence of the 


Plans, that identification had no legal consequence 

for the status of the land and its use. It may well 

be that the purpose and scheme of the Act means 

that powers of the Minister or chief executive 

under it which alter rights and obligations cannot 

lawfully be used without first adopting a 

Recovery Strategy or Recovery Plan. But I do not 

consider that is the case with s 53. I would 

therefore decline to make the declaration sought by the 

appellants and would dismiss their appeal on the second 

ground also. 

* * * 

AN APPEAL 

We request all our readers, friends and wellwishers 

to liberally subscribe to/contribute for 

and advertise in this unique type of journal and 

also aid in increasing its circulation. Our 

admirers, if any – hope there are certainly some – 

may take this as an ULTIMATUM and enroll as 

many subscribers as possible since otherwise 

continuance of this journal would be very 

difficult. We also request that scholarly articles 

on any aspect of law and society, preferably 

with comparative study, be sent to us. Life 

subscription for this journal: Rs. 12,000/- and the 

annual subscription for 2015: Rs. 1200/-. Any annual 

subscription will count for one volume i.e. January to 

December of the year, and back-numbers of the year, 

subject to availability (but pdf copies of the same certainly), 

will be supplied to the subscriber. - I.M. Sharma, Editor. 

ADVERTISEMENT TARIFF: 

Full inner cover page : Rs. 12,000/- 

Ordinary full page : Rs. 10,000/- 

Cheques/DDs to be sent in favour of: 

LAW ANIMATED WORLD, 

H. No. 6-3-243/156, M.S. Makta, 

Opp. Raj Bhavan, HYDERABAD - 500 082. 

(for outstation cheques please add Rs. 75/- bank charges) 

139 


F-198 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: W Young J] (2015) 1 LAW 

WILLIAM YOUNG J 

Preliminaries 

[289] In the course of these reasons, I will refer to 

the decision taken in June 2011 as “the June 2011 

decision”, the offers made pursuant to it as “the 

June 2011 offers”, the decision made in May 

2012 as to the owners of houses under 

construction and not-for-profit organisations as 

“the May 2012 decision”, the offers made 

pursuant to it as “the June 2012 offers”, the 

decision as to the offers to be made to inter alia, 

uninsured owners as “the September 2012 

decision” and the offers made pursuant to it as 

“the September 2012 offers”. I will generally, for 

ease of reference, refer to decision-makers as the 

government except where it is necessary to focus 

on a particular statutory power and its exercise by 

an identified person. References to “the Minister” 

and “chief executive” are to the Hon Gerry 

Brownlee (as the Minister for Canterbury 

Earthquake Recovery) and Mr Roger Sutton (who 

was at all material times the chief executive of 

the Canterbury Earthquake Recovery Authority 

(CERA)). In discussing the June 2011 decision I 

will generally refer to the 24 June 2011 

memorandum from the Minister to the Cabinet as 

“the decision paper”. 

[290] Those who have fire and general insurance 

in relation to their homes also, automatically, 

have insurance with the Earthquake Commission 

(EQC) which extends to land damage. Land is 

otherwise not able to insured (in that separate 

cover for land is not offered by insurers). 

References in these reasons to uninsured owners 

encompass the owners of both uninsured 

improved residential properties and vacant land. 

[291] Under the June 2011 decision, the only offers 

made were to the owners of insured residential 

properties. The detail of those offers, based on 

2007 rating valuations is discussed in the reasons 

of the majority. No decision was made in June 2011 as 

to the offers to be made in respect of other classes of 

property. These comprised (a) uninsured 

residential properties, (b) vacant land, (c) 

residential properties with houses under 

construction (d) commercial and industrial 

properties, (e) properties owned by not-for-profit 

organisations and (f) leasehold properties. 

[292] Pursuant to the May 2012 decision, the 

government, in June 2012, extended the offers 

made in June 2011 to the owners of insured 

residential red zone properties to: 

(a) owners of buildings under construction 

where the owners had building/ 

construction insurance (adjusted to allow 

for the stage of construction reached); and 

(b) not-for-profit organisations which owned 

insured non-residential properties. 

[293] These offers thus provided for payment of 

land value even though neither category of owner 

had insurance through EQC in respect of land 

damage. 

[294] The authors of the paper commented, rather 

forlornly as it has turned out, that: 293 

We do not consider this will create a precedent to 

extend a Crown offer to any other remaining 

property categories in the red zones. 

[295] This view seems to have been based 

primarily on the following considerations: 

(a) the recipients of the offers had been as fully 

insured as possible; and 

(b) the not-for-profit organisations provided 

what were described as “community 

support/development functions”. 294 

[296] Other factors which are discussed in the 

decision paper and may have been seen as 

material were: 

(a) “Zoning decisions [presumably a reference 

to the depopulation of the residential red 

zone] have serious implications for not-forprofit 

organisations … in terms of 

disruption of their activities and 

services”. 295 



not-for-profit organisations” (signed by the Minister on 

25 May 2012) at [5]. 

294 At 2. 

295 At [33]. 


(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: W Young J] F-199 

(b) There were only 11 properties with houses 

under construction in the residential red 

zone. After allowing for insurance 

recoveries but also transaction expenses the 

estimated net cost of this part of the 

exercise was $5,370,000. 

(c) There were only seven properties covered 

by the offers to not-for-profit organisations 

and the estimated net cost of the exercise 

(after excluding transaction expenses but 

allowing for insurance recoveries) was just 

over $6 million. 

[297] A further paper, in the form of a table, was 

prepared in early August 2012 addressing options 

in respect of inter alia, uninsured residential land 

and bare land. In each case the table noted that 

the option preferred by CERA was an offer to 

buy at 50 per cent of land value as assessed in the 

2007 rating valuations. The recommendations 

were carried through into a 30 August 2012 

Cabinet paper prepared by CERA which was 

adopted so as to become the September 2012 

decision. 

[298] The minute of the Cabinet’s decision: 296 

5. note[d] there are good reasons for uninsured 

properties (including vacant land) to not 

receive an offer on the same terms as insured 

properties: 

5.1 it would compensate for uninsured 

damage; 

5.2 it would be unfair to other red zone 

property owners who have been paying 

insurance premiums; 

5.3 it could create a moral hazard in that 

the incentives to insure in the future are 

potentially eroded. 

[299] The other detail of September 2012 

decision is of limited moment for present 

purposes save to note that the owners of insured 

commercial property received offers which were 

similar to the June 2011 offers save that the offers 

296 

Cabinet Business Committee (Minute of Decision) 

“Canterbury Earthquake: Red Zone Purchase Offers for 

Residential Leasehold, Vacant, Uninsured, and 

Commercial/Industrial Properties” (3 September 2012) 

CBC Min (12) 6/3. 

were for 50 per cent and not 100 per cent of land 

value. 

[300] The current position is that the government 

has offered to purchase a total of 6,991 properties 

in the residential red zone (excluding the Port 

Hills). As of 28 June 2013, offers in respect of 

only 130 had not been accepted. Of the offers 

made, 193 were for 50 per cent of land value as 

assessed in the 2007 rating valuation and 61 of 

these offers have not been accepted. 297 Of these 

offers, 46 were to members of Quake Outcasts. 

I am not sure whether Fowler Developments Ltd 

(which owned 11 sections and is not part of the 

Quake Outcasts group) accounts for one or 11 of 

the non-accepted offers. Either way, it appears that 

most of those who have not accepted the offers at 50 per 

cent of land value are parties to the present appeals. 298 

[301] The appellants are not seeking the setting 

aside of the June 2011 decision. Indeed, they 

could hardly do so given that their expectation of 

purchase offers is substantially grounded in that 

decision and its subsequent implementation. The 

only issue in this appeal of practical moment is 

the basis upon which the chief executive should 

make the further offers to the appellants which 

are required as a result of the Court of Appeal 

judgment. 299 Particularly in issue is whether the 

uninsured status of the appellants is material to 

the offers to be made. Given this, it is legitimate 

to question why so much attention has been 

addressed to the validity (or otherwise) of the 

June 2011 decision. 

[302] An indication of the reasons why the Quake 

Outcasts challenged the June 2011 decision is 

297 These figures come from an affidavit of the chief 

executive sworn on 1 July 2013. 

298 I note that some of the appellants have entered into 

interim settlements with the government under which 

they have been paid 50 per cent of land value but on 

what is essentially a without prejudice basis. I assume 

that these transactions are not included in the accepted 

offers to which I have referred. 

299 Minister for Canterbury Earthquake Recovery v Fowler 

Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 

587 (O’Regan P, Ellen France and Stevens JJ). 

141 


F-200 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: W Young J] (2015) 1 LAW 

provided in a letter before action of 13 February 

2013 sent by their solicitors to CERA: 

The group [being the Quake Outcasts] considers 

that your decision is susceptible to successful 

legal challenge on a number of grounds, as well 

as significant political embarrassment over the 

next two years. For example, the group considers 

that even the Government’s declarations of the 

“red zones” are unlawful, as such declarations 

have been made outside the statutory regime set 

out in the CERA Act, and appear to have been 

imposed without any consideration of the 

requirements of that Act. Each of the group’s 

members proposes to challenge every step of 

your process at every step of the way should it 

continue. 

However, the Quake Outcasts would much prefer 

to discuss with you the possibilities of a better 

offer that meets both your needs and those of the 

group members. … 

[303] This rather suggests that the initial 

challenge to the June 2011 decision was in the 

nature of a negotiating tactic. 

[304] The arguments for the Quake Outcasts 

proceeded in part at least on the basis that the 

procedural infelicities (as they see them) associated with 

the June 2011 decision enhance their entitlements (as 

they see them) as to what the government should offer 

them for their properties. As will become apparent, 

I do not accept that there were any such procedural 

infelicities. But, more significantly, if there were 

such infelicities, I do not see them as material as 

to the offers to be made to uninsured owners. I 

therefore see the validity of the June 2011 decision as a 

red-herring and I think it would have been better if we 

had chosen not to engage with it. 

[305] In subsequent sections of this judgment I 

will address: 

(a) the scheme of the legislation; 

(b) the challenge to the June 2011 decision; 

and 

(c) the basis upon which offers may be made to 

the appellants. 

The scheme of the legislation 

[306] The structure of the Act is relevantly as 

follows. 

[307] The purposes of the Act are specified in 

section 3: 

“3 Purposes 

The purposes of this Act are – 




recover from, the impacts of the 

Canterbury earthquakes: 








recovery: 


any land, structure, or infrastructure 

affected by the Canterbury earthquakes: 






(g) to restore the social, economic, cultural, 

and environmental well-being of greater 


(h) to provide adequate statutory power for the 

purposes stated in paragraphs (a) to (g): 

…” 

[308] Sections 6 and 7 provided for the 

establishment of a community forum and a crossparty 

parliamentary forum. The purpose of each 

body is to provide the Minister “with information or 

advice in relation to the operation of [the] Act.” 

[309] The functions of the Minister and the chief 

executive of CERA are set out in ss 8 and 9. 

These are specified by reference to the powers 

conferred on the Minister and chief executive by 

later sections of the Act. There are no general 

provisions in these sections which render the 

exercise of such powers subject to any compliance 

with any other instruments (in particular the Recovery 

Strategy or a Recovery Plan) which are provided for 

in the Act. 


* * * 


DISENGAGE WITH PAKISTAN COMPLETELY ! 

- Tarek Fatah ♣ 

. 

Tarek Fatah 

The conference closed with delegates standing in a moment of silence to remember the victims of 

terrorism around the world. 

Bhaiyo aur Behno [Brothers and Sisters], 

Namaskar, Adab aur Salaam Alaikum. Happy 

New Year. …… Seventy years ago today, the 

Red Army was knocking on the doors of Berlin 

and on May 5, 1945 it captured the German 

capital to bring to an end to the five year war in 

Europe. In those five years, the USSR and its western 

allies that included tens of thousands of troops from our 

India destroyed the largest army ever mobilized. When 

the guns went silent, 50 million men and women 

were dead including six million in the Death 

Camps of Auschwitz where Hitler tried to 

exterminate the Jewish people. 

We were able to destroy the might of the 

German Wehrmacht in a mere five years, yet 

today, 14 years after the United States declared a 

war on terrorism, we have not only failed in defeating 

the forces of international jihadi terrorism, we have ended up 

strengthening the very enemy we sought out to destroy. We 

should ask ‘Why?’ We don’t. 

When Osama was killed, Obama declared Al- 

Qaeda had been decimated. When Saddam was 

dethroned, Bush landed a plane on an aircraft 

carries declaring “mission accomplished”. 

♣ 

Courtesy: Tarek Fatah, Founder, Canadian Muslim 

Congress is already introduced to our readers; This is the 

speech delivered by him on 22 March 2015 at the Jaipur 

International Counter Terrorism Conference; slightly 

edited; emphases in bold ours - IMS. 

Despite the Bush and Obama 

declarations years ago, we are 

today meeting here in Jaipur 

because the United States has 

failed dismally in defeating and 

army led once by men in caves. Men 

who had no Panzer divisions, no V1 and V2 rockets, no 

Messerschmitt fighters, no Stuka bombers, no Tiger tanks, 

no Rommel, no Hess, No Goering and no Goebbels. 

As India’s NSA Ajit Doval disclosed on 

Thursday, the United States alone has spent 5.1 Trillion 

dollars on this war. For every dollar the Jihadi 

terrorists spend, the USA has to match that dollar 

with $75,000 dollars. Imagine that. Over a million 

men and women have died, yet we are nowhere close to 

“Mission Accomplished”. 

The question to be asked is why such a 

spectacular failure. 

Let me put it succinctly. To fight Malaria you 

need to drain the swamps, not kill individual 

mosquitoes. We have let the drains stagnant and 

sent missiles to shoot down mosquitoes. The result 

has been for every mosquito killed, a 1000 are 

ready to replace it and spread the disease. Instead of 

draining the swamps, we are shooting down individual 

mosquitoes, one mosquito at a time. But to drain the 

swamp, we need to first identify it. 

During the Second World war we not only knew 

who the enemy was, we were able to name him, 

without any guilt or hesitation. In contrast, in this 

21 st century fourth world war, there are no Churchills, no 

Roosevelts, no Marshall Zhukov and no Chiang kai Shek. 

All we have today are midgets that celebrate mediocrity 

and practice appeasement. Appeasement that would make 

Chamberlain look like a courageous man. 

Imagine a scenario during World War Two if the 

US in 1942 would consider Italy as an ally. 

Impossible, right? But, today the same United States 

considers Turkey, Saudi Arabia and Qatar – the sworn 

enemies of everything that liberal secular democracies 

stand for – as allies of the USA. 

The one country, the elephant in the room that 

no one wishes to speak about is the original 

“Islamic State of Pakistan”, the mother-lode of 

143 


144 Disengage with Pakistan completely! (Tarek Fatah) (2015) 1 LAW 

International terrorism, yet the beneficiary of 

billions of dollars of American largesse. 

In addition, before and during the Second 

World War, the motivating ideology behind Germans 

seeking world domination was the Nazi doctrine of 

Aryan supremacy, and all of us had absolutely no 

problem saying so. In a similar manner the 

motivating ideology behind the Warsaw Pact during the 

Third World War aka the Cold War, was Communism 

that sought the ‘Dictatorship of the Proletariat’ and no 

one, not even Dange or Namboodripad (Indian 

communist leaders) had any hesitation saying so. 

This begs the question. What is the ideology of 

the jihadi terrorists seeking world domination to hasten 

the End of Times? It is Islamofascism, the 20 th century 

doctrine of Islamism, which is the use of Islam as a 

political tool to establish Islamic supremacy on the rest 

of the globe. However, it seems we are too scared to 

dare mention the word ISLAMISM. Our American 

friends call it “Violent Extremism”. What is this 

“Violent Extremism”? Why beat around the bush 

and call it for what it is, i.e. Islamic Extremism? 

Let me show you a graphic clip that best 

illustrates our Islamic Extremism. … It is from 

Afghanistan and the tragic event happened just 

yesterday. [TF plays a VIDEO showing a mob of Muslims 

beating to death a 27-year old mentally challenged Muslim 

woman on charges that she burnt pages of the Quran. After 

beating her senseless, the crowd then set her on fire and 

watched her burn to death]. What have we Muslims become 

that we would beat and then burn alive a young woman? 

Even if she had deliberately set the Quran on fire (which she 

didn’t), did she have to be killed this way to serve Allah? 

What is to be done? I’ll make one general policy 

proposal and four specific recommendations: 

Definition of Terrorism under Resolution 1373 

On 28 September 2001 in the wake of the 9/11- 

jihadi terrorist attacks on the United States, the UN 

Security Council unanimously adopted Resolution 

1373. The resolution was a counter-terrorism measure 

adopted under Chapter VII of the United Nations Charter, 

and is therefore binding on all UN member states. It 

marked a shift in international law. Until then, 

international law was presumed to be valid only if 

the concerned state had voluntarily signed the 

international treaty; whereas after 1373, the Security 

Council imposed the resolution on all member states. 

Following 1373, India made a call for a global 

convention on defining terrorism and finding 

commonly accepted means to combat it. Guess who 

obstructed the Indian initiative? Our good friends of 

the Islamic State, not in Rakka, but in Islamabad. 

Pakistan, the epitome of state terrorism scuttled the effort 

by raising issues about "causative factors," arguing 

that those who are "freedom fighters" cannot be 

labeled as terrorists. 

It is unfortunate that the powers that matter in 

today’s world should only look at the tactics and 

methods used by terrorists to define terrorism. To 

this day UN resolution 1373 exists only on paper. It is not 

too late. Let there be a comprehensive convention 

against terrorism under the United Nations, which 

has been pending since 2001, when India first 

proposed it. I say let us define Terrorism and then fight 

the state that feeds it. 

Four Recommendations 

But until then I have four recommendations 

for the Indian government: 

1. Disengage with Pakistan completely. No talks, no 

visits, no trade. 

2. Since Pakistan itches for parity with India, please 

shut down the silly March of the Roosters at the 

Wagah border cross point – the single most 

spectacular circus that puts the rogue state of 

Pakistan at par with democratic, secular and 

dignified Republic of India. 

3. End the ridiculous “Aman ki Aasha” that has been 

a one-way traffic of ISI aunties come to India and 

run circles around Indians, and even cause the fall 

of one of India’s brightest sons. …… 

4. Finally, please don't wait for a second Mumbai to 

create a Balochistan. 

Please start assisting the brave men and women of 

Balochistan today. Help the young men of Dr. 

Allah Nazar in the hills and Baloch exiles like 

Mehran Marri and Brahamdagh Bugti. Plan and 

work towards the policy goal, unwritten and unsaid, for 

the disintegration of the so-called rump state that refers 

to itself the Islamic Republic of Pakistan. 

I use the label 'so-called state', not only because there 

is nothing ‘Paak’ about Pakistan, but because of the fact 

Pakistan in 1971 changed its name to Bangladesh and 

what we call Pakistan today is merely Pakistan’s 

leftovers. – Thank you for inviting me as a speaker 

to this conference. 

- Jai Hind! 

* * * * * 


LEGENDARY HOCKEY PLAYER DHYAN CHAND ♣ 

1936 Semi Final (Courtesy: BhartiyaHockey) 

Dhyan Chand was born 1905 in Prayag, now 

Allahabad, in a Punjabi Rajput family. He was the 

elder brother of another player Roop Singh. His 

father Sameshwar Dutt Singh was in the British 

Indian Army, and he played hockey in the army. 

Dhyan Chand had two brothers - Mool Singh, and 

Roop Singh. Because of Sameshwar Dutt's 

numerous army transfers, the family had to move 

to different cities and as such Chand had to 

terminate his education after only six years of 

schooling. The family finally settled in Jhansi, 

Uttar Pradesh, India. Being in the military, 

Dhyan's father got a small piece of land for a 

house. Dhyan Chand died in relative poverty in 

1979. 

1. After seeing Dhyan Chand play at Adelaide in 

1935, Sir Donald Bradman remarked, “He scores 

goals like runs in cricket!” 

2. Known as “The Wizard” for his superb ball 

control, Chand played his final international match 

in 1948, having scored more than 400 goals during 

his international career. 

3. He scored over 1000 goals in his career, from 1926 

to 1948. 

♣ Courtesy: Danny Legend; suitably edited; emphases in 

bold ours. I too feel Dhyanchand deserves Bharat Ratna. 

I also feel that he should have been given it first before 

Sachin had been given. But that is now a closed matter 

and so at least now he should be given that award and a 

Dhyanchand National Hockey Academy should be started, 

if not already there. His deserving relatives must be 

encouraged and if necessary financially aided to the 

extent possible. - IMS. 

4. Dhyan Chand was also known as ‘Hockey Ka 

Jadugar’. 

5. Major Dhyan Chand’s birthday is celebrated as 

National Sports Day in India. 

6. He was called Chand by his team-mates because he 

used to wait for the moon-rise to come out for 

practice. 

7. During the 1936 Olympic final against Germany, 

it’s said that Dhyan Chand removed his spiked 

shoes & stockings in the 2nd half and played with 

bare foot. He managed to score and scored three 

goals. 

8. In the 1936 Berlin Olympics, Dhyan Chand who 

was the flag-bearer, refused to salute Hitler. 

9. In Berlin, Adolf Hitler wanted to buy his stick after 

watching the final match against Germany. 

10. Once, while playing a hockey game, Major Dhyan 

Chand was not able to score a goal against the 

opposition team. After several misses, he argued 

with the match referee regarding the measurement 

of the goal post, and amazingly, it was found to not 

be in conformation with the official width of a goal 

post (as prescribed under international rules). 

11. After India played its first match in the 1936 

Olympics, Dhyan Chand’s magical stick-work drew 

crowds from other venues to the hockey field. A 

German newspaper carried a banner headline: 

‘The Olympic complex now has a magic show too.’ 

The next day, there were posters all over Berlin: 

Visit the hockey stadium to watch the Indian 

magician Dhyan Chand in action. 

12. After seeing his prolific play at the 1936 Berlin 

Olympics, Adolf Hitler offered Dhyan Chand, a 

Major in the British Indian Army, German 

citizenship and an offer to promote him to the rank 

of a Colonel. But Dhyan Chand rejected the offer. 

13. In Holland, the authorities broke his hockey stick to 

check if there was a magnet inside. [Did this happen 

in Japan too?] 

14. On one occasion, a lady from the audience asked 

Dhyan Chand to play with her walking stick 

instead. He scored goals even with them. 

15. Residents of Vienna, Austria, honored him by 

setting up a statue of him with four hands and four 

sticks, depicting his control and mastery over the 

ball. 

* * * 

145 


146 Legendary Hockey Player Major Dhyan Chand (2015) 1 LAW 

FORGOTTEN HISTORIC EVENT: HITLER’S OFFER 

TO HOCKEY WIZARD MAJOR DHYAN CHAND 

[This is the real story of an Indian soldier when he faced one 

of the most feared military leaders of the modern world.] 

The Olympic Hockey final in 1936 was watched 

by a crowd of 40000 that included Adolf Hitler. When 

India reached hockey finals, it was assumed that 

another gold medal was just a matter of time for the 

Germans. To boost the morale of his team, the 

Fuehrer Adolf Hitler decided to attend and witness the 

match. Dhyan Chand, the Captain of the Indian team, 

was facing acute difficulty in running on the wet 

ground on his canvas shoes. Dhyan Chand calmly 

took off his shoes and started playing. India won the 

final match and the Gold Medal by 8-1, of which 6 

goals were scored by Dhyan Chand himself. Hitler left 

the stadium half way through the match, as he could 

not bear to see his team lose. Later, when Hitler came 

to know about the magic of Dhyan Chand, he 

expressed his desire to meet Dhyan Chand. On being 

informed by the German Chancery, Dhyan Chand 

could not sleep the entire night. The next morning 

Dhyan Chand found himself before Hitler. Hitler took 

a look at the sub-standard canvas shoes of Dhyan 

Chand and enquired, “What else you do, when not 

playing hockey?” 

Dhyan Chand: I am in Army. 

Hitler: What is your rank? 

Dhyan Chand: I am Lance Nayak 

Hitler: Come over to Germany and I will make you 

a Field Marshal [or ‘Colonel’?] – 

Dhyan Chand was in a flutter, not understanding 

whether it was an instruction to him by the Supreme 

Commander of the mighty German Army or an offer. 

Breaking his silence, Dhyan Chand replied in chaste 

Hindi, “India is my country, and I am fine there.” 

None of the Generals accompanying Hitler could 

respond to this patriotic rebuff rendered by the plucky 

Indian soldier. Hitler is said to have taken his eyes off 

Dhyan Chand’s canvas shoes briefly and retorted, “As 

you like it,” and stomped away in a huff. 

Dhyan Chand is probably the first [Indian 

sportsman] to meet Hitler personally. There are many 

accounts of Dhyan Chand’s famous meeting with 

Hitler, but this is what he recounted to his family and 

close friends. [Courtesy: https://www.youtube.com/watch?v= 

lIL_WiUvaso] 

* * * 

Amazing facts about Major Dhyan Chand 

[He deserves Bharat Ratna] 

These are really amazing 

facts about Dhyan Chand, 

which will make us proud. 

1. Before Independence, when 

went on a tour, India won 3 

Olympic Gold medals in 

Hockey. In Olympic Hockey 

Games, we played 48 games and won all of them. 

2. India was unbeatable in Hockey for 20 years. 

3. Hitler was very much impressed by Dhyan Chand’s 

magic play and requested Dhyan Chand to accept 

German citizenship and play for Germany in return 

for much money and honors in German Army but 

Dhyan Chand refused saying he does not play for 

money but for his country. 

4. There was a match when he didn’t score a single 

goal. On this he argued with match referee that the 

Goal post length was short and was the cause for his 

not scoring a goal. This was found correct, the goal 

post length was increased, and later he scored 8 goals. 

5. He was the only Indian player who hoisted Indian 

flag before independence, not only in India but in 

Germany. We were ruled by the British and not 

allowed to unfurl our flag but he hid that in his 

baggage and took it to Germany, which requires a lot 

of guts. It is said, on this, the British govt. wanted to 

imprison him even but Hitler didn’t let it happen. 

6. During his life time, he became so poor that he 

didn’t have money for food, when he was offered a 

coach post by America and Germany but he refused 

saying if he teaches Hockey to them, then India will 

no more be a champion in Hockey. But our Govt. 

didn’t offer him anything; it was only the Indian Army 

that helped him. 

[Courtesy: http://defencelover.in/] 

* * * 


(2015) 1 LAW 147 

Our reverent and grateful tributes to Sri Paruchuri Hanumantha Rao (1924-2015): 

[A steadfast supporter of the socialist ideal; also, founder, Pragati Art Printers, Hyderabad] 

I. Mallikarjuna Sharma and I. Balamani, on behalf of MARXIST STUDY FORUM and LAW ANIMATED WORLD. 

147 Law Animated World, 15-31 March 2015

148 Law Animated World {15-31 March 2015} Postal Reg. No. HD/1098/2014-16 

Lahiri Ashfaq Bismil Roshan Singh 

“Desire to stake our heads is now 

in our hearts; we’ve to see how 

strong the killer’s arms really are!” 

Kakori Martyrs 

GIMME REBIRTH! 

I’ll go with empty hands but this sting will go with me 

As to when, on what day, India will become independent 

Bismil, a Hindu, says: “I’ll come again, I’ll come again, 

Aye Mother India, coming again I’ll make you free!” 

How I wish I too say the same but my religion binds me, 

I am a Muslim, so can’t talk of punarjanam (rebirth), 

But if I find God anywhere, I will spread my alms-sheet, 

And ask: “Instead of heaven, give me rebirth!’ (Ashfaq) 

* * * 

Oft we lit lamps amid storms 

“मुलािजम हमको मत कहये, बड़ा अफ़सोस होता है; 

अदालत के अदब से हम यहाँ तशरफ लाए ह। 

पलट देते ह हम मौजे-हवादस अपनी जुरत से; 

क हमने आँधय म भी चराग असर जलाये ह।” 

Please don’t call us ‘servants’, it pains us a lot, 

We have come here out of respect to the Court, 

Daringly do we reverse the caprice of misfortunes, 

Often have we lit the lamps amidst storms!” 

[During the Kakori case trial, once the prosecutor by mistake called 

Ramprasad Bismil and his comrades as ‘mulaajim’ (servants) instead 

of ‘muljimaan’ (accused); Bismil, a quick-witted, accomplished poet, 

at once shot this repartee.] 

* * * 

OUR HOPES ARE ON YOU! 

कये थे काम हमने भी जो कु छ भी हमसे बन पाए, 

ये बात तब क ह आज़ाद थे और था शबाब अपना; 

मगर अब तो जो कु छ भी ह उमीद बस वो तुमसे ह, 

जबां तुम हो, लबे-बाम आ चुका है आफताब अपना। (Ashfaq) 

Whatever was possible for us, that work we’ve done 

It was when we were free and in the prime of life 

But now whatever remain are hopes, and that from you, 

You’re growing up; we at the verge like the setting Sun. 

* * * * * 

↓ 

Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan, 

Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com 

andprinted at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000} 

148 

LIFE AND DEATH: FUN OF THE WORLD 

कु छ आरजू नहं है, है आरजू तो यह 

रख दे कोई ज़रा सी खाके वतन कफ़न म | 

ए पुतकार उफत हुसयार, डग ना जाना, 

मराज आशकां है इस दार और रसन म | 

मौत और िज़दगी है दुनया का सब तमाशा, 

फरमान कृ ण का था, अजुन को बीच रन म| 

- Ashfaqullah Khan* 

No other desire is there, but this one wish 

that somebody put a little homeland soil in my coffin 

Beware fanatics of love, don’t take a step back, 

Here too are there love patients - of gallows and ropes even 

Life and death is all the fun of the world, 

Thus spake Lord Krishna to Arjuna in mid-battle-field! 

* * * 

HEROES, NEVER AFRAID OF DEATH 

बुजदलो को ह सदा मौत से डरते देखा, 

गो क सौ बार उह रोज़ ह मरते देखा| 

मौत से वीर को हमने नहं डरते देखा, 

मौत को एक बार जब आना है तो डरना या है, 

हम सदा खेल ह समझा कये, मरना या है| 

वतन हमेशा रहे शादकाम और आज़ाद, 

हमारा या है, अगर हम रहे, रहे न रहे|| 

That cowards only are always afraid of death, I’ve seen, 

Thus they dying a hundred times every day, I’ve seen, 

But never seen have I a hero being afraid of death, 

Death is sure to come once; then why fear it? 

We always thought it a game – what else death is? 

Let our motherland be free and fruitful always, 

What of us – whether we be or be not – matters not. 

[*Ashfaqulla Khan (b. 22-10-1900; d. 19-12-1927), a roll-model 

revolutionary, and icon of communal harmony, was hanged one 

day after Bismil’s hanging in Gorakhpur Jail; his last words – “तंग 

आकर हम भी उन के जुम के बेदाद से / चल दये सूये आदम िजदाने फ़ै ज़ाबाद से” 

(Getting vexed with their arbitrary atrocities, we also left this Faizabad 

Jail for the abode of death); he has already been introduced to our 

readers. - IMS.] 

* * * * *

Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?