EDITOR’S petitioner filed a writ petition in the

 

EDITOR’S NOTE- This article presents a case comment on the judgment
of the Supreme Court in the case of “Shreya Singhal v. Union of India”. In this
case Supreme Court struck down the contentious section 66A of the “Information
Technology Act, 2000”.

INTRODUCTION-

The Supreme Court of India pronounced a milestone
judgment, 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 a
high point in the legal enlargement of the “Freedom of Speech and ‘Expression1”
and primarily the constitutional scope of its restriction2. Most
influential and leading gist of the judgment is that it has interpreted the
scope of the fundamental right guaranteed to us by the constitution of India to
express ourselves freely, and the limited space available to the state in
restraining this freedom in the only absolute necessary circumstances.

In this case, Shreya Singhal, the petitioner filed a
writ petition in the Supreme Court, under article 32 of the Constitution of
India, challenging the constitutional validity of section 66A, 69A and 79 of
the “Information Technology Act, 2000” and section 118(d) of “Kerala Police Act,
2011”, on the ground that the drafted sections are overbroad, have not been
adequately specified for its proper application and the overbroad terms of the
section 66A of IT Act and section 118(d) of Kerala Police Act, are not covered
within the scope of article 19(2), thus, the said sections are in violation of
the freedom of speech and expression. So these sections are liable to be
declared void and ultra vires of the constitution of
India.

In the judgment, Supreme court struck down the
section 66A of the Information Technology Act, 2000 and section 118(d) of the
Kerala Police Act, 201, as void, in
their entirety being violative of Article 19(1)(a) and not saved under Article
19(2). Status of the section 69A3
and 794 of
IT Act was held constitutionally valid.

Whole essence of the case moves around the striking
down section 66A, the most deliberated, argued and analyzed by the bench, due
to its nature of restricting the freedom of speech made through computer
resources (apparently covered the opinions expressed through social media on
internet). In this comment as well, the very same section in context of the
main issue “the scope of restriction of freedom of speech and expression” is
going to be discussed primarily.

BACKGROUND-

 IT Act, 2000 bestow the legal recognition upon
the 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 of
offensive messages through computer resources or other communication
devices.  Under this provision, any person who by means of a computer or communication device sends any
information that is:

A.   
grossly offensive or has menacing character

B.    
false and meant 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 fine5.

The
arrests that were made under the section 66A of IT Act, sparked the debate on
the scope of the section and its application, finally led to the challenging
constitutional validity of the said section.

Some of the incidents which were significant to
pose the challenge to the section, when the two young girls from Palghar,
Shaheen Dhada and Renu Srinivasan, were arrested under this section in November
2012, for posting on a facebook page questioning why the city was shut down for
Shiv Sena leader Bal Thackeray’s funeral, when a Puducherry businessman Ravi
Srinivasan was arrested in October 2012 for allegedly posting ‘offensive’
messages on Twitter about Congress leader P Chidambaram’s son Karti Chidambaram
and when the Police arrested CPI-M worker Rajeesh Kumar in August 2014, for
posting “abusive” comments and photos on Facebook about Prime Minister Narendra
Modi, and so many cases of the same nature came into the picture.

Most of the arrests were made for remarking on
the political leaders or prominent personalities, which posed a serious doubt
on the objective of the section.

Subsequently, the central government issued
certain rules of procedure6
with the objective to prevent such arrests, that prior approval of the Deputy
Commissioner or Inspector General of Police is required before registering a
complaint under Section 66A.  In May 2013, the Supreme Court too upheld
these guidelines, stating that such sanction is essential before any arrest is
to be made.  Since matters related to police and public order falls under
the state list, a Supreme Court order was required for these guidelines to be
applicable across the country.  However, Section 66A could not be modified. 

A
Private Member Bill7
was laid down in Lok Sabha in 2013, recommending the amendment in Section 66A
of the IT Act.  The Statement of Objects and Reasons of the Bill stated
that most of the offences that Section 66A dealt with what were already covered
by the Indian Penal Code (IPC), 1860. This had resulted in dual penalties for
the same offence.  According to the Bill, there were also inconsistencies
and disparities between the two laws in relation to the duration of
imprisonment for the same offence as two years punishment has been prescribed
for the offence of threatening someone with injury through email  and three years under the IT Act. But the
Bill was eventually withdrawn.

In
the same year, a Private Members resolution8 was also moved in
Parliament.  The resolution proposed to make four changes:

(i)                
bring Section 66A in
line with the Fundamental Rights of the Constitution;

(ii)              
restrict the
application of the provision to communication between two persons;

(iii)            
 precisely define the offence covered; and

(iv)            
 reduce the penalty and make the offence a
non-cognizable one (which means no arrest could be made without a court
order). 

 However, this resolution was also withdrawn.
By then, PIL had already been filed by Shreya Singhal in the Supreme Court
challenging the constitutionality of the section.

 

 

 

 

 

 

ANALYSIS-

In
the judgment, Supreme Court enlarged the scope of right to speech on social
media and limited the grounds on which, this precious right can be restricted,
by striking down the draconian, stringent section 66A of IT Act, describing it
as an open-ended and
unconstitutionally vague”, further adding that impugned section “arbitrarily,
unnecessary and disproportionately” invaded the right to free speech, right to
dissent, right to know, and had a “chilling effect” on the constitutional
mandates.

Decision of the Court was quite appropriate
with the all legal reasoning behind the unconstitutionality of the impugned section,
as this section had been widely misused for merely
a political purpose by police in various states to arrest innocent persons for
posting critical comments about social and political issues.  In many cases, section 66A was just used as a
tool to punish the political opposition for remarking on political and notable
personalities.

This drew the attention of the Court as well
that the scope of this section is too wide that even innocent persons can be
easily trapped within its requirement, and thus this section is highly
vulnerable of getting misused.  Respective
bench in the same context touched upon the point that the terms of the section are
such, not even capable of guiding the arresting authorities properly.

Thus, it was directed by the bench in the
judgment, that for proper application of any law, language and the terms of the
particular provision should be comprehensive enough that- firstly, people, who all are to be governed, should be able to draw
a line between legal and illegal acts and should be able to comprehend the
prohibited acts as per that particular law and secondly, the concerned law should 
provide proper guidance to the administering authorities in regard of
procedures 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 paramount
significance. 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 analyzed
for determining the role of Article 19(2). Bench in the judgment concluded that
any speech may be of three types, first discussion, second advocacy, these two
are saved within Article 19(1)(a), while third one is incitement where article
19(2) comes into picture.

Now, It can be concluded from the previous
experiences of the application of the concerned provision that section 66A is
not capable to demarcate the speeches of these three kind, as any discussion or
advocacy may be sometimes annoying, grossly offensive or may cause
inconvenience or even insult to someone, but ultimately all these are saved
within the ambit of “freedom of speech and expression” and can only be
restricted if it falls within those terms, which are provided in article 19(2),
which all are- 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. Thus, bench rightly said that the section affects the
public’s right to know as well.

It
can be easily interpreted that the terms, security and integrity of India,
security of state, and relation with the foreign states, have nothing to do with
the section 66A of IT act. Now the rest four terms- public order, decency and
morality, defamation, incitement to an offence, mechanically fall within the
ambit of the terms used in the s. 66A due to its open ended scope. But words of
section 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 article
19(2) which lies within the bigger circle of section 66A.

So,
the section just paves the way for state authorities to control fundamental
right on unreasonable grounds as well, and that amounts to a gross violation of
such a precious fundamental right. Even if this section tries to create some
offences like insult section has not been framed properly, with the wrong
choice of words, lack of specifications, without any stipulations and
safeguards etc.

Supreme
Court 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 the
constitutional grounds, there can’t be even ‘general public interest’ a
reasonable ground to prohibit the right of speech11.

With
this judgment, Supreme Court very well narrowed down the power of the
government in respect of restricting the right to speech, only in extreme
circumstances, in order to save the precious fundamental right of citizenry
from getting violated and to maintain its spirit.

As
relation was being tried to establish between the impugned section and the four
terms of article 19(2) which are Public Order, Defamation, Decency and Morality
and Incitement to an offence, by the petitioner, court very finely demarcated
the 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 the
bench.

It
is nowhere mentioned in section 66A that whether this section aimed to punish
the acts directed against general public or individual12,
and that has maintained a high vagueness of the objective of this section. Here
bench, referring the judgment of Arun Ghosh v. State of West Bengal, 1970 3
S.C.R. 288, declared that restrictions on the right, provided in the section is
not

covered
within the ambit of Public order. Public Order is in fact a very narrowly
interpreted term as defined “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 comprehensible, that an act may affect law and order but not public
order and similarly an act may affect public order but not security of the
State13.”

Disturbance
of public order needs to be separated, from acts directed against individuals
which do not disturb the society to the extent of causing a general disturbance
of public tranquility14.

 So, test here is, “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. Another test is
that “does the message has a tendency to disrupt the public order15”.
Section 66A has failed to answer both the questions.

It
was intended to create an offence of Defamation through the section but in its
language section is not concerned with injury to reputation at all, which is
essential ingredient of the offence defamation.

Even
if it was tried to bring the section within the ambits of “Incitement to an
offence” or “Decency and Morality”, it could not be possible as section has
failed to specify any information which has a character of incitement nor the
information under the section needs to be obscene at all.

The
apex court provided all the legal and logical reasoning that why the section
66A is not covered within the scope of article 19(2) and the impugned section
is altogether “ultra vires” of the
Constitution of India.

And
these offences like criminal intimidation, defamation have already been
included in IPC in a proper way, which are enough to deal with the cases even
committed through the computer resources.

And
moreover, 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 they
are made offences in themselves, it would be highly violative of the basic
rights of the people.

The
fact,  that the social media is more vulnerable
to the abusive information or is more convenient way to abuse people, should
not be a reasonable or satisfactory ground to curb the freedom of speech and
expression of the citizenry on social media.

Though,
Supreme Court, has struck down the section 66A but it has acknowledged a
intelligible differentia between internet and other mediums, and upheld that
parliament is very much empowered to make new law or amend IT act to add new
provision 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 under
Article 19(2)”.

But it upheld the validity of section 69A and
section 7917 of the
IT act, stating that unlike section 66A, these provisions are narrowly framed,
with the proper safeguards and procedures, with the condition that section 79
to be read down as the “knowledge” spoken of in the
section 79(3)(b) must only be through the medium of a court order.  

CONCLUSION-

Here in this case, the constitutional validity of
the four major provisions, was challenged which are section 66A, 69A and 79 of
the Information Technology Act, 2000 and section 118(d) of the Kerala Police
Act. In which, Supreme Court struck down the section 66A of IT Act and section
118(d) of the Kerala Police Act, on the similar grounds of “Overbreadth and
Chilling Effect”, while it upheld the validity of other two provisions of the
IT Act, thus it maintained the balance between the parties.

Moreover, it acknowledged, analyzing the American
case laws, that unlike USA, vagueness is not a absolute ground for declaring a
law invalid in India but Indian courts are required to narrow down and specify
the language of the provision or law under review, to an extent, it is
possible. And, this rule is actually being applied here by the court, as it can
be understood from the all reasoning that it provided for striking down the
section 66A and even “why” it can’t be saved anyhow, giving a reason that, if a
law which is otherwise invalid, can’t be saved from the assurance of the
Government.

While the bench specified the section 79(3)(b) on
its own, for declaring it as constitutionally valid, because it was possible in
this case as the whole section was otherwise constitutionally valid, so could
not be declared void just for minute
vague thing which is even very much capable of getting corrected and so the
court did, standing up to the expectations and its duties.

 The verdict of the Supreme Court is of
colossal significance in protecting online free speech against arbitrary
restrictions. But the section 66A, which was declared unconstitutional, still
has been used in many cases as a punitive measure against online speech, discounting
the value of the Supreme Court.

 

1INDIAN CONST.
Art. 19(1)(a), All
citizens shall have the right to
freedom of speech and expression.

2 INDIAN CONST. Art. 19(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
restrictrictions on the enjoyment of the right guaranteed 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.

3 Central Government is armed with
the right to issue directions for blocking the content under certain
circumstances, 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 was
held valid by the bench, subject to Section 79(3)(b) has to be interpreted, 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 also valid
subject to its Rule 3 sub-rule (4) has to be interpreted in the same manner.

 

5 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, obscene, or menacing character. Section 66
of the UK Post Office Act, 1953, was essentially the reproduction of the
earlier provision. Later, this Section was replaced by Section 49 of the
British Telecommunication Act, 1981 and Section 43 of the British
Telecommunication Act, 1984. In the UK, currently it is Section 127 of the
Telecommunication Act, 2003.

6 On  Nov. 29, 2012 the Minister for IT, Mr. Kapil
Sibal 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.

7
The Information Technology (Amendment) Bill, 2012 ByShri Baijayant ‘Jay’ Panda, M.P.,A BILL further to amend the Information
Technology Act, 2000.

8 A private members resolution was moved by M.P. P. Rajeeve on
Dec. 14, 2012 to amend the draconian section 66(A) of IT act, but it was
withdrawn on the assurances from Telecom Minister Kapil Sibal that the
resolution will be taken up after the Supreme Court of India rules on it. 

9 In the present
case, 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 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. Same rule being applied in present case, however
this 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 Kameshwar
Prasad & Ors. v. The State of Bihar & Anr., 1962 Supp. (3) S.C.R. 369,
and Indian Express Newspapers (Bombay) Private Limited & Ors. v. Union of
India & Ors., (1985) 2 SCR 287, 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, appears to has conferred no power on the Congress to impose any
restriction on the exercise of the guaranteed right, still it has always
been  perceived that the freedom assured,
is subject to the police power – the scope of which however has not been
demarcated with precision or uniformly. It is due to this police power to
curtail the freedom, that the laws interdicting libels, and those relating to
sedition, or to obscene publications etc., have been sustained constitutionally.
The resultant flexibility of the restrictions that could be validly imposed
renders the American concept or courts’ decisions inapplicable to Indian cases.
In the present case as well, bench has cited some American judgments to
emphasize the significance of this Fundamental right, but at the same time has
also expressed that the American concept can’t be applied absolutely in present
case, as in America, the concerned right has been  interpreted  in subject to “general public interest”, while
in India, there are only eight conditions provided in article 19(2), and
nothing apart from or above these conditions has been recognized in India by
the Courts.

 

 

12 Iinformation  disseminated may be to one individual or several
individuals, This Section makes no distinction between mass dissemination and
dissemination to one person.

13 Dr. Ram Manohar Lohia v. State
of Bihar & Ors., 1966 1 S.C.R. 709.

14 Arun Ghosh v. State of West
Bengal, 1970 3 S.C.R. 288.

15 State of Bihar v. Shailabala
Devi, 1952 S.C.R. 654.

16 Penalty for causing grave
violation of public order or danger.- Any person who,- 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 imprisonment for a term which
may extend to three years or with fine not exceeding ten thousand rupees or with
both.

17 Section 79 belongs to Chapter
XII of the Act in which intermediaries are exempt from liability if they
fulfill the conditions of the Section.