EDITOR’S NOTE- This article presents a case comment on the judgmentof the Supreme Court in the case of “Shreya Singhal v. Union of India”. In thiscase Supreme Court struck down the contentious section 66A of the “InformationTechnology Act, 2000”.INTRODUCTION-The Supreme Court of India pronounced a milestonejudgment, in the case titled “Shreya Singhal V.
Union of India” (writ petition(criminal) no.167 of 2012) on March 24, 2015. This event may be considered as ahigh point in the legal enlargement of the “Freedom of Speech and ‘Expression1″and primarily the constitutional scope of its restriction2. Mostinfluential and leading gist of the judgment is that it has interpreted thescope of the fundamental right guaranteed to us by the constitution of India toexpress ourselves freely, and the limited space available to the state inrestraining this freedom in the only absolute necessary circumstances.In this case, Shreya Singhal, the petitioner filed awrit petition in the Supreme Court, under article 32 of the Constitution ofIndia, challenging the constitutional validity of section 66A, 69A and 79 ofthe “Information Technology Act, 2000” and section 118(d) of “Kerala Police Act,2011”, on the ground that the drafted sections are overbroad, have not beenadequately specified for its proper application and the overbroad terms of thesection 66A of IT Act and section 118(d) of Kerala Police Act, are not coveredwithin the scope of article 19(2), thus, the said sections are in violation ofthe freedom of speech and expression. So these sections are liable to bedeclared void and ultra vires of the constitution ofIndia.
In the judgment, Supreme court struck down thesection 66A of the Information Technology Act, 2000 and section 118(d) of theKerala Police Act, 201, as void, intheir entirety being violative of Article 19(1)(a) and not saved under Article19(2). Status of the section 69A3and 794 ofIT Act was held constitutionally valid. Whole essence of the case moves around the strikingdown section 66A, the most deliberated, argued and analyzed by the bench, dueto its nature of restricting the freedom of speech made through computerresources (apparently covered the opinions expressed through social media oninternet).
In this comment as well, the very same section in context of themain issue “the scope of restriction of freedom of speech and expression” isgoing to be discussed primarily.BACKGROUND- IT Act, 2000 bestow the legal recognition uponthe transactions made through computer resources. The Act was enacted to promote the IT industry,regulate e-commerce, facilitates e-governance and prevent cybercrime and was amended in 2009 to insert a new section,Section 66A which criminalizes the sending ofoffensive messages through computer resources or other communicationdevices. Under this provision, any person who by means of a computer or communication device sends anyinformation that is:A. grossly offensive or has menacing characterB. false and meant for the purpose ofcausing annoyance, inconvenience, danger, obstruction, insult, injury, criminalintimidation, enmity, hatred or ill will, persistently by makinguse of such computer resource or a communication device; orC.
any electronic mail or electronic mailmessage for the purpose of causing annoyance or inconvenience or to deceive orto mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for aterm which may extend to three years and with fine5.Thearrests that were made under the section 66A of IT Act, sparked the debate onthe scope of the section and its application, finally led to the challengingconstitutional validity of the said section. Some of the incidents which were significant topose the challenge to the section, when the two young girls from Palghar,Shaheen Dhada and Renu Srinivasan, were arrested under this section in November2012, for posting on a facebook page questioning why the city was shut down forShiv Sena leader Bal Thackeray’s funeral, when a Puducherry businessman RaviSrinivasan was arrested in October 2012 for allegedly posting ‘offensive’messages on Twitter about Congress leader P Chidambaram’s son Karti Chidambaramand when the Police arrested CPI-M worker Rajeesh Kumar in August 2014, forposting “abusive” comments and photos on Facebook about Prime Minister NarendraModi, and so many cases of the same nature came into the picture.Most of the arrests were made for remarking onthe political leaders or prominent personalities, which posed a serious doubton the objective of the section.Subsequently, the central government issuedcertain rules of procedure6with the objective to prevent such arrests, that prior approval of the DeputyCommissioner or Inspector General of Police is required before registering acomplaint under Section 66A. In May 2013, the Supreme Court too upheldthese guidelines, stating that such sanction is essential before any arrest isto be made. Since matters related to police and public order falls underthe state list, a Supreme Court order was required for these guidelines to beapplicable across the country.
However, Section 66A could not be modified. APrivate Member Bill7was laid down in Lok Sabha in 2013, recommending the amendment in Section 66Aof the IT Act. The Statement of Objects and Reasons of the Bill statedthat most of the offences that Section 66A dealt with what were already coveredby the Indian Penal Code (IPC), 1860. This had resulted in dual penalties forthe same offence.
According to the Bill, there were also inconsistenciesand disparities between the two laws in relation to the duration ofimprisonment for the same offence as two years punishment has been prescribedfor the offence of threatening someone with injury through email and three years under the IT Act. But theBill was eventually withdrawn.Inthe same year, a Private Members resolution8 was also moved inParliament. The resolution proposed to make four changes:(i) bring Section 66A inline with the Fundamental Rights of the Constitution;(ii) restrict theapplication of the provision to communication between two persons;(iii) precisely define the offence covered; and(iv) reduce the penalty and make the offence anon-cognizable one (which means no arrest could be made without a courtorder).
However, this resolution was also withdrawn.By then, PIL had already been filed by Shreya Singhal in the Supreme Courtchallenging the constitutionality of the section. ANALYSIS-Inthe judgment, Supreme Court enlarged the scope of right to speech on socialmedia and limited the grounds on which, this precious right can be restricted,by striking down the draconian, stringent section 66A of IT Act, describing itas an open-ended andunconstitutionally vague”, further adding that impugned section “arbitrarily,unnecessary and disproportionately” invaded the right to free speech, right todissent, right to know, and had a “chilling effect” on the constitutionalmandates.Decision of the Court was quite appropriatewith the all legal reasoning behind the unconstitutionality of the impugned section,as this section had been widely misused for merelya political purpose by police in various states to arrest innocent persons forposting critical comments about social and political issues. In many cases, section 66A was just used as atool to punish the political opposition for remarking on political and notablepersonalities.
This drew the attention of the Court as wellthat the scope of this section is too wide that even innocent persons can beeasily trapped within its requirement, and thus this section is highlyvulnerable of getting misused. Respectivebench in the same context touched upon the point that the terms of the section aresuch, not even capable of guiding the arresting authorities properly. Thus, it was directed by the bench in thejudgment, that for proper application of any law, language and the terms of theparticular provision should be comprehensive enough that- firstly, people, who all are to be governed, should be able to drawa line between legal and illegal acts and should be able to comprehend theprohibited acts as per that particular law and secondly, the concerned law should provide proper guidance to the administering authorities in regard ofprocedures and safeguards to be undertaken, while applying the law9.
And section 66A, actually lacks in both.Terms such as liberty,expression have been cherished in our Constitution and is a cardinal value of paramountsignificance. In this judgment, Supreme Court has reiterated the importance of”Freedom of Speech and Expression” cited in the previous judgments10.
The content of the speech is to be analyzedfor determining the role of Article 19(2). Bench in the judgment concluded thatany speech may be of three types, first discussion, second advocacy, these twoare saved within Article 19(1)(a), while third one is incitement where article19(2) comes into picture.Now, It can be concluded from the previousexperiences of the application of the concerned provision that section 66A isnot capable to demarcate the speeches of these three kind, as any discussion oradvocacy may be sometimes annoying, grossly offensive or may causeinconvenience or even insult to someone, but ultimately all these are savedwithin the ambit of “freedom of speech and expression” and can only berestricted if it falls within those terms, which are provided in article 19(2),which all are- sovereignty and integrity of India, thesecurity of the State, friendly relations with foreign States, public order,decency or morality or in relation to contempt of court, defamation, orincitement to an offence.
Thus, bench rightly said that the section affects thepublic’s right to know as well.Itcan be easily interpreted that the terms, security and integrity of India,security of state, and relation with the foreign states, have nothing to do withthe section 66A of IT act. Now the rest four terms- public order, decency andmorality, defamation, incitement to an offence, mechanically fall within theambit of the terms used in the s. 66A due to its open ended scope. But words ofsection 66A do not fall within the scope of article 19(2). In the easiest form,it can be explained in a way, there are two circles, one small circle of article19(2) which lies within the bigger circle of section 66A.So,the section just paves the way for state authorities to control fundamentalright on unreasonable grounds as well, and that amounts to a gross violation ofsuch a precious fundamental right.
Even if this section tries to create someoffences like insult section has not been framed properly, with the wrongchoice of words, lack of specifications, without any stipulations andsafeguards etc.SupremeCourt went on to hold, while referring the judgment of Sakal Papers (P) Ltd.& Ors. v. Union of India, 1962 3 S.
C.R. 842, that apart from theconstitutional grounds, there can’t be even ‘general public interest’ areasonable ground to prohibit the right of speech11.Withthis judgment, Supreme Court very well narrowed down the power of thegovernment in respect of restricting the right to speech, only in extremecircumstances, in order to save the precious fundamental right of citizenryfrom getting violated and to maintain its spirit. Asrelation was being tried to establish between the impugned section and the fourterms of article 19(2) which are Public Order, Defamation, Decency and Moralityand Incitement to an offence, by the petitioner, court very finely demarcatedthe boundaries of these terms, analyzing the landmark judgments in this regard.In all four, Public Order was a huge issue and was most analyzed one, by thebench.Itis nowhere mentioned in section 66A that whether this section aimed to punishthe acts directed against general public or individual12,and that has maintained a high vagueness of the objective of this section. Herebench, referring the judgment of Arun Ghosh v.
State of West Bengal, 1970 3S.C.R. 288, declared that restrictions on the right, provided in the section isnot coveredwithin the ambit of Public order.
Public Order is in fact a very narrowlyinterpreted term as defined “One has to imagine three concentric circles. Lawand order represents the largest circle within which is the next circlerepresenting public order and the smallest circle represents security of State.It is then comprehensible, that an act may affect law and order but not publicorder and similarly an act may affect public order but not security of theState13.”Disturbanceof public order needs to be separated, from acts directed against individualswhich do not disturb the society to the extent of causing a general disturbanceof public tranquility14.
So, test here is, “does a particular act leadto disturbance of the current life of the community” or does it merely affectan individual, leaving the tranquility of society undisturbed. Another test isthat “does the message has a tendency to disrupt the public order15”.Section 66A has failed to answer both the questions.Itwas intended to create an offence of Defamation through the section but in itslanguage section is not concerned with injury to reputation at all, which isessential ingredient of the offence defamation. Evenif it was tried to bring the section within the ambits of “Incitement to anoffence” or “Decency and Morality”, it could not be possible as section hasfailed to specify any information which has a character of incitement nor theinformation under the section needs to be obscene at all.Theapex court provided all the legal and logical reasoning that why the section66A is not covered within the scope of article 19(2) and the impugned sectionis altogether “ultra vires” of theConstitution of India.
Andthese offences like criminal intimidation, defamation have already beenincluded in IPC in a proper way, which are enough to deal with the cases evencommitted through the computer resources.Andmoreover, the terms like annoyance, inconvenience, grossly offensive, etc,which are used in the section 66A, can’t be the offences in themselves,however, they may be the ingredients of some of the offences in IPC. If theyare made offences in themselves, it would be highly violative of the basicrights of the people.
Thefact, that the social media is more vulnerableto the abusive information or is more convenient way to abuse people, shouldnot be a reasonable or satisfactory ground to curb the freedom of speech andexpression of the citizenry on social media.Though,Supreme Court, has struck down the section 66A but it has acknowledged aintelligible differentia between internet and other mediums, and upheld thatparliament is very much empowered to make new law or amend IT act to add newprovision with proper safeguards and procedures in this regard.It also struck down a similar provision of Kerala:”Section 118(d) of the Kerala Police Act16, on the same grounds, being violative of Article 19(1)(a) and not saved underArticle 19(2)”.
But it upheld the validity of section 69A andsection 7917 of theIT act, stating that unlike section 66A, these provisions are narrowly framed,with the proper safeguards and procedures, with the condition that section 79to be read down as the “knowledge” spoken of in thesection 79(3)(b) must only be through the medium of a court order. CONCLUSION-Here in this case, the constitutional validity ofthe four major provisions, was challenged which are section 66A, 69A and 79 ofthe Information Technology Act, 2000 and section 118(d) of the Kerala PoliceAct. In which, Supreme Court struck down the section 66A of IT Act and section118(d) of the Kerala Police Act, on the similar grounds of “Overbreadth andChilling Effect”, while it upheld the validity of other two provisions of theIT Act, thus it maintained the balance between the parties. Moreover, it acknowledged, analyzing the Americancase laws, that unlike USA, vagueness is not a absolute ground for declaring alaw invalid in India but Indian courts are required to narrow down and specifythe language of the provision or law under review, to an extent, it ispossible. And, this rule is actually being applied here by the court, as it canbe understood from the all reasoning that it provided for striking down thesection 66A and even “why” it can’t be saved anyhow, giving a reason that, if alaw which is otherwise invalid, can’t be saved from the assurance of theGovernment. While the bench specified the section 79(3)(b) onits own, for declaring it as constitutionally valid, because it was possible inthis case as the whole section was otherwise constitutionally valid, so couldnot be declared void just for minutevague thing which is even very much capable of getting corrected and so thecourt did, standing up to the expectations and its duties.
The verdict of the Supreme Court is ofcolossal significance in protecting online free speech against arbitraryrestrictions. But the section 66A, which was declared unconstitutional, stillhas been used in many cases as a punitive measure against online speech, discountingthe value of the Supreme Court. 1INDIAN CONST.Art. 19(1)(a), Allcitizens shall have the right tofreedom of speech and expression.
2 INDIAN CONST. Art. 19(2) – Nothing in sub clause (a) ofclause ( 1 ) shall affect the operation of any existing law, or prevent theState from making any law, in so far as such law imposes reasonablerestrictrictions on the enjoyment of the right guaranteed by the said subclause in the interests of the sovereignty and integrity of India, the securityof the State, friendly relations with foreign States, public order, decency ormorality or in relation to contempt of court, defamation or incitement to an offence.3 Central Government is armed withthe right to issue directions for blocking the content under certaincircumstances, read with section 87(2)(z) of the Act, in exercise of which, Procedure& Safeguards for Blocking for Access of Information by Public, Rules 2009,were laid down.4 Section 79 washeld valid by the bench, subject to Section 79(3)(b) has to be interpreted, tomean that an intermediary upon receiving actual knowledge from a court order oron being notified by the appropriate government or its agency that unlawfulacts relatable to Article 19(2) are going to be committed then fails toexpeditiously remove or disable access to such material. Similarly, theInformation Technology (Intermediary Guidelines) Rules, 2011 are also validsubject to its Rule 3 sub-rule (4) has to be interpreted in the same manner.
5 The genealogy of this Sectionmay 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 isgrossly offensive or of an indecent, obscene, or menacing character. Section 66of the UK Post Office Act, 1953, was essentially the reproduction of theearlier provision. Later, this Section was replaced by Section 49 of theBritish Telecommunication Act, 1981 and Section 43 of the BritishTelecommunication Act, 1984.
In the UK, currently it is Section 127 of theTelecommunication Act, 2003. 6 On Nov. 29, 2012 the Minister for IT, Mr. KapilSibal called for a meeting of stakeholders with representatives of government,businesses and civil society to break the deadlock on Section 66A of the IT(Amendment) Act of 2008.7The Information Technology (Amendment) Bill, 2012 ByShri Baijayant ‘Jay’ Panda, M.P.
,A BILL further to amend the InformationTechnology Act, 2000.8 A private members resolution was moved by M.P. P.
Rajeeve onDec. 14, 2012 to amend the draconian section 66(A) of IT act, but it waswithdrawn on the assurances from Telecom Minister Kapil Sibal that theresolution will be taken up after the Supreme Court of India rules on it. 9 In the presentcase, bench took an American case for reference “Musser v. Utah, 92 L. Ed. 562(1948)”and analyzed the concept of U.S.
A- The U.S. Supreme Court has repeatedly heldin a series of judgments that where no reasonable standards are laid down todefine guilt in a Section which creates an offence, and where no clear guidanceis given to either law abiding citizens or to authorities and courts, a Sectionwhich creates an offence and which is vague must be struck down as beingarbitrary and unreasonable.
Same rule being applied in present case, howeverthis concept is not absolutely applicable in India, was admitted by the bench. 10 Romesh Thappar v. State of Madras,1950 S.C.R.
594, In Sakal Papers (P) Ltd. & Ors. v.
Union of India,1962 (3) S.C.R.842.11 KameshwarPrasad & Ors. v. The State of Bihar & Anr.
, 1962 Supp. (3) S.C.R. 369,and Indian Express Newspapers (Bombay) Private Limited & Ors. v. Union ofIndia & Ors.
, (1985) 2 SCR 287, The pattern of Article 19 (1) (a) and ofArticle 19 (1) (g) of our constitution is different from the pattern of theFirst Amendment to the American Constitution which is almost absolute in itsterms, appears to has conferred no power on the Congress to impose anyrestriction on the exercise of the guaranteed right, still it has alwaysbeen perceived that the freedom assured,is subject to the police power – the scope of which however has not beendemarcated with precision or uniformly. It is due to this police power tocurtail the freedom, that the laws interdicting libels, and those relating tosedition, or to obscene publications etc., have been sustained constitutionally.The resultant flexibility of the restrictions that could be validly imposedrenders the American concept or courts’ decisions inapplicable to Indian cases.
In the present case as well, bench has cited some American judgments toemphasize the significance of this Fundamental right, but at the same time hasalso expressed that the American concept can’t be applied absolutely in presentcase, as in America, the concerned right has been interpreted in subject to “general public interest”, whilein India, there are only eight conditions provided in article 19(2), andnothing apart from or above these conditions has been recognized in India bythe Courts. 12 Iinformation disseminated may be to one individual or severalindividuals, This Section makes no distinction between mass dissemination anddissemination to one person.13 Dr. Ram Manohar Lohia v. Stateof Bihar & Ors., 1966 1 S.C.R.
709.14 Arun Ghosh v. State of WestBengal, 1970 3 S.C.R.
288.15 State of Bihar v. ShailabalaDevi, 1952 S.C.R.
654.16 Penalty for causing graveviolation of public order or danger.- Any person who,- Causes annoyance to anyperson in an indecent manner by statements or verbal or comments or telephonecalls or calls of any type or by chasing or sending messages or mails by anymeans; shall, on conviction be punishable with imprisonment for a term whichmay extend to three years or with fine not exceeding ten thousand rupees or withboth.17 Section 79 belongs to ChapterXII of the Act in which intermediaries are exempt from liability if theyfulfill the conditions of the Section.