1. SHREYA SINGHAL
UNION OF INDIA
v.
SUBMITTED BY:
SHWAS BAJAJ
ROLL NO. 69/18
BA.LL.B
SEMESTER: 10TH
SECTION: B
SUBMITTED TO:
DR. AMITA VERMA
FACULTY OF LAW,
UILS, PANJAB UNIVERSITY
2. INTRODUCTION
In India, freedom of speech and expression is enshrined under Article 19(1)(a). Indian courts have also, since very
inception of our constitution, strived for upholding the principles formulated by our forefathers and keep a check on
proliferating ambit of government’s authority. The case law in this project report also acts as a proof for the same. In
this case, the Supreme Court of India struck down the provisions under section 66A of Information and Technology Act,
2000 as being ultra vires the constitution.
With increasing permeability of internet, a lot of people are having access to variety of information. The ability to
communicate, discuss, argue and preach has also expanded like never before. This is the reasons that masses can be
mobilized with just a click. This vast power in hands of people is ideally very significant in democracies. But it also raises
issues relating to accelerating capacity of individuals to commit frauds and deceive masses easily and without being
recognized. Government may use this probable threat to curb legitimate use of internet and social media platforms. In this
case, the court has tried to draw a balancing line for ensuring that government carries out it functions without
unnecessarily curbing individual liberties.
3. FACTS OF
THE CASE
Two girls, Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai
police in 2012 for expressing their displeasure at a bandh called in the wake of
Shiv Sena chief Bal Thackery’s death. The women posted their comments on the
Facebook. The arrested women were released later on and it was decided to
close the criminal cases against them yet the arrests attracted widespread
public protest. It was voiced by many activists that the police has exploited its
power by invoking Section 66A of the Information Technology Act, 2000, which
prescribes the punishment for sending obnoxious texts or messages through
communication services and curtailed the fundamental right of speech &
expression enshrined under Article 19(1)(a) of the Indian Constitution
After that, in the year 2013, the Union Government recommended a proviso to
the arrest of a person made under Section 66A of the IT Act. The Central
government stated in its advisory that no individual shall be apprehended by the
police without prior authorization of the superior officer, who is not below the
rank of Inspector General of Police. Henceforth, there were numerous petitions
filed by the people across the country to strike down the unconstitutional
provisions of the IT Act. The Apex Court of India clubbed those petitions into
a single PIL and the case came to be known as Shreya Singhal v. Union of India
4. ISSUES BEFORE THE COURT
Section 66-A
Punishment for sending
offensive messages through
communication service,
etc.-
Section 69-A
Power to issue directions for
blocking for public access of any
information through any
computer resource
WHETHER SECTIONS 66-A, 69-A AND 79 OF INFORMATION AND TECHNOLOGY
ACT, 2000 ARE ULTRA VIRES THE CONSTITUTION?
Section 79
Exemption from liability of
intermediary in certain cases
6. ARGUMENTS BY
PETITIONER
• 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).
• Section 66A suffers from the vice of vagueness
• 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.
• 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
• Presumption in favour of the constitutionality of an enactment
• 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
• Vagueness is not a ground to declare a statute unconstitutional if the statute is
otherwise legislatively competent and non-arbitrary
• The said section can be supported under the heads of public order, defamation,
incitement to an offence and decency or morality.
• 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.
ARGUMENTS BY
RESPONDENT
7. CURBING FREEDOM IN GENERAL
PUBLIC INTEREST
The court held that for curbing freedom
mentioned under Article 19(1)(a) any 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. It is not open to the State to
curtail freedom of speech to promote the general
public interest as held in Sakal Papers (P) Ltd. &
Ors. v. Union of India
RELAXED STANDARD OF REASONABLENESS
OF RESTRICTION
The court held that there is indeed intelligible
differentia in print and other forms of mass media
and speech and expression on the internet. Hence,
separate offences can be created for speech on
the internet. But such offences will have to pass
the test of court’s scrutiny. Court said, “we do
not find anything…. 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 laid down by the courts.
.
SECTION 66-A AND PUBLIC ORDER
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…… 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
JUDGMENT ON THIS ISSUE
8. SECTION 66-A AND DEFAMATION, DECENCY
AND MORALITY
It was held by the court that there are certain
ingredients to all the heads mentioned in Article
19(2), and that annoyance, inconvenience, etc
mentioned in Section 66A can be merely
ingredients of above-mentioned heads but do not
fit in ambit of these heads as whole.
VAGUE LANGUAGE OF SECTION 66-A
Court held that, “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. 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.…… There is
no demarcating line conveyed by any of these
expressions - and that is what renders the
Section unconstitutionally vague.”
.
CHILLING EFFECT
The court also referred to concept of “chilling
effect” initially evolved by American courts in
United States Supreme Court in New York Times
v. Sullivan to explain what effects provisions under
Section 66A can have, which makes it inconsistent
with Article 19(1)(a). Court referred to R.
Rajagopal v. State of T.N. , wherein the court
had observed, “What has been described as 'the
chilling effect' induced by the threat of civil
actions for libel is very important.” Such provision,
in opinion of court, will induce chilling effect in
general public with respect to dissent and opposite
views. The court stated, “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
JUDGMENT ON THIS ISSUE
Hence, it was ultimately held that, “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.”
10. ARGUMENTS BY PETITIONER
Petitioners assailed the constitutional validity of Section 69A, and assailed the
validity of the 2009 Rules. According to them, 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
Arguments raised by respondents were similar to those raised in defence of section
66A Information and Technology Act, 2000 ARGUMENTS BY RESPONDENT
JUDGMENT ON THIS ISSUE
The court assessed the provisions of section 69A, and reached the conclusion that
this section is better framed than section 66A of Information and Technology Act,
2000 with several safeguards. Also, that the blocking under this section can be
done when union government feels necessity to do so and more so, such necessity
pertains to subjects mentioned under Article 19(2). Also, reasons have to recorded
in writing for any action under this section. Hence, it was held that section 69A of
Information and Technology Act, 2000 is constitutionally valid.
12. ARGUMENTS BY PETITIONER
The petitioners 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).
Arguments raised by respondents were similar to those raised in defence of section
66A Information and Technology Act, 2000
ARGUMENTS BY RESPONDENT
JUDGMENT ON THIS ISSUE
After making detailed study of provision under section 79,, court held that, “We have 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……..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………..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).
13. CONCLUSION
Court upheld that indeed there is fast proliferation of internet and social media which makes it
difficult for agencies to keep a check on illegal activities but can not be allowed to overshadow
the boon social media can become in empowering and strengthening individuals against corrupt and
abusive actions of government and executive and can act a wagon to bring such actions into
masses’ knowledge. It can act a global platform for discussions and debates which are fuel for
democracy. Government shall strengthen itself to keep a better check on illegal activities over
internet rather than curbing free speech and trying to create fear in mind of people.
“Freedom is right to tell people what they do not want to hear.” - George Orwell
