This article is written by Vaibhav Suppal, a student of Symbiosis Law School, Hyderabad. In this article, the author has discussed the importance of the Shreya Singhal Case with the help of a detailed case commentary.

Background of the Case

In 2012, the Mumbai Police apprehended two girls, Shaheen Dhada and Rinu Srinivasan, for posting a lambasted remark in Facebook against the bandh imposed in the wake of Shiv Sena founder Bal Thackeray’s death. The girls were later released by the police but the apprehension of them was widely criticized across the country. It was voiced by many activists that the police has exploited its power by invoking Section 66A of the Information Technology Act, 2000 (hereinafter referred to as ‘IT Act’), 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. The offence prescribed under Section 66A of the IT Act comes under the purview of cognizable offences, which allows police officers to apprehend and investigate a case without a warrant. Hence, the result of this was that many uncanny arrests of the people were made by police throughout the country for publishing any opinion or view which the government termed as ‘obnoxious content’ but it was mostly demurring political opinions. 

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.

International Legislations Pertaining to the Freedom of Speech and Expression

The Universal Declaration of Human Rights (UDHR) provides for the right to free speech and expression under Article 19 of the legislation. It affirms that each and every person has a fundamental right to hold opinions and views without any intervention. Apart from it, the International Covenant on Civil and Political Rights (ICCPR) also safeguards the right to express freely under Article 19 of it. It explicitly asserts that “everyone shall have the right to freedom of expressions; this right shall include freedom to seek, receive and impart information’s and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” 

On 5th July 2012, the Human Rights Council of United Nations unanimously pronounced to safeguard the right to free speech and expression of each and every individual on the internet. It was the first declaration made by the United Nations asserting the Human Rights of the netizens must be safeguarded to an equal extent as it does in the corporeal world. 

Facts in Issue

The petitioner filed a writ petition in the public interest under Article 32 of the Indian Constitution, seeking the Supreme Court of India to declare Section 66A, 69A and 79 of the IT Act ultra-vires to the Constitution of India. It was asserted in the petition that the wordings of these provisions are wide and ambiguous. The petitioner further affirmed that the objective of these provisions are inclined towards its reckless exploitation and thus falls out of the purview of Article 14, 19(1)(a) and 21 of the Indian Constitution. There are terminologies like menacing, offensive, annoyance, inconvenience, obstruction, danger, and insult which are not explained in any act.  Thus, it makes it more prone to unwanted abuse. Apart from it, the classification made between the citizens and netizens of the country was also termed as arbitrary and contrary to the provision of free speech inscribed under Article 19(1) (a) of the Indian Constitution. It was asserted that the distinction gives an authority to the police officers to apprehend netizens for their remarks which can also be made by the general citizens of the country. Thus, such classification violates the fundamental right to equality penned down under Article 14 of the Indian Constitution.

Arguments of the Petitioner

1. Section 66A of the Information Technology Act, 2000 waives off the right to free speech and expression prescribed under Article 19(1) (a) of the Indian Constitution and doesn’t come under the purview of reasonable classification prescribed in Article 19(2). 
2. It was also affirmed by the petitioner that the acts of causing displeasure, exasperations and vexation are out of the ambit of Article 19(2) of the Indian Constitution. 
3. Section 66A was also contended to be ambiguous as it doesn’t describe various terms in it. The terms can be interpreted in a very broad manner and are subjected to be abused by the executive authorities. 
4. There is no intelligible differentia in the classification of charging only netizens under Section 66A of the IT Act. Hence, the entire provision is arbitrary, vague and discriminatory in nature.

Arguments of the Respondent

1. The Respondent contended that it is the obligation of the legislature to address the needs of the people and the judiciary will only intervene when a law is inconsistent with Part III of the Indian Constitution. In addition to it, it was submitted by the respondent that there is a presumption of the law in question being intra-vires to it. 
2. The Court of law can interpret the law in a manner which makes it justly enforceable and while doing so the intricacies of the provisions can also be read down by it.
3. The abuse of legislation by the executive authorities cannot be a sole reason to pronounce the law ultra-vires to the Constitution of India.
4. Broad terminologies are used in the law to protect the rights of citizens from those who infringe them by the means of this medium.
5. The ambiguity of law is not a ground to pronounce a legislation ultra-vires to the Constitution of India, especially when it is deemed to be qualified and just in nature on the other aspects.

Liberty to Speech And Expression

The liberty to speech and expression is assured by the Preamble of the Indian Constitution and is deemed to be of utmost importance in a democratic country. The fundamental right of free speech and expression is also embedded under Article 19 of the Indian Constitution which gives liberty to every citizen of this country to hold opinions and views. This was further affirmed in the landmark case of Maneka Gandhi v. Union of India.  In this case, the Apex Court of India held that there are no territorial restrictions on the liberty to express & hold opinions and it is equally applicable in foreign territories as well. After that, in the case of Romesh Thappar v. State of Madras, the Apex Court of India further interpreted the scope of Article 19 and rightly pronounced that the fundamental right of speech and expression also encompasses freedom of media to express views and opinions as well. In fact, the liberty to hold opinions by the media houses is considered to be of supreme importance among all the liberties provided by the Indian Constitution because it is necessary for the proper functioning of democratic institutions. The same was pronounced in the case of Bennett Coleman vs. Union of India. However, the scope of Article 19 was still opined to have certain ambiguities in it, which hadn’t been dissipated. The rising issue of endless transmission of false and malicious one-sided information by the members of the society was a prime example of it. As a result, the Apex Court of India took cognizance of this escalating problem and put an end to it in the case of Union of India v. Association for Democratic Reforms and Anr. In this case, it was held that the prejudiced transmission of information, red herrings and non-information leads to a misinformed nation which is a threat to democracy. At last, in the case of S. Khushboo vs. Kanniamal and Anr, the fate of Article 19 was decided as the Supreme Court of India asserted that the liberty to speech and expression is conditional but it is very vital in nature as we are required to bear unpopular views and opinions of the society. Therefore, it can be ascertained that the fundamental right of free speech and expression signifies a free flow of opinions and perceived as an indispensable right to sustain a collective life. In other words, one can say that tradition of social discourse, by and large, is of great communal significance. 

Comparison Between U.S. And Indian Freedom of Speech and Expression

In the case of Whitney v. California, Justice Brandeis has rightly affirmed that “Liberty should be treated as a means as well as an end and to justify suppression of free speech there should be a reasonable explanation to fear that serious evil will result if such free speech is practiced.” Taking into deliberation the view of Justice Brandeis, the Apex Court of United States has thoroughly discussed in its judicial recourse as to whether the judicial pronouncements of U.S. Courts are taken into consideration while interpreting the scope of Article 19 of the U.S. Constitution. Henceforth, the Supreme Court made three necessary distinctions:

1. Firstly, the 1st amendment of United States is absolute and congress has no authority to make any law which curtails the fundamental right of free speech and expression provided under Article 19 of the U.S. Constitution.
2. Secondly, the 1st amendment of U.S. provides an essential liberty to speech for media houses and doesn’t make any reference to ‘expression’ in it, whereas Article 19(1) (a) of the Indian Constitution doesn’t explicitly include freedom of speech for media houses.
3. Thirdly, according to U.S. law, the freedom of speech will be curtailed if it is found to be indecent, defamatory and vulgar, whereas under Indian law, such a right can only be curtailed if it doesn’t falls under the eight elements prescribed under Article 19(2) of the Indian Constitution. 

Hence, the only distinction between the U.S. and India’s liberty to speech and expression is that in U.S., there is undeniable prerequisite to attain an essential sovereign policy or it should pass the muster test, but in India, the liberty to speech and expression will be curtailed only if it doesn’t satisfy the eight conditions penned down under Article 19(2) of the Indian Constitution.

Constitutionality of Section 66A of The Information Technology Act, 2000

In the context of information, there are three vital ingredients to comprehend the liberty of free speech and expression. The first is the discussion of the cause; the second is the advocacy of its factual existence and third is provocation among people. The heart of Article 19(1) (a) of the Indian Constitution can be determined over the discussion & advocacy of any specific fact and opinion. It is only when such expressions provoke a certain section of people; Article 19(2) of the Indian Constitution gets initiated. 

Any legislation enacted to restrict the freedom of speech and expression can cause public turmoil and affects the autonomy & integrity of the country. But, there are certain situations in which it is necessary to curtail the freedom of speech and expression in order to prevail public harmony in the society. However, such an imposition of restriction on the fundamental right of speech and expression has to be rational and intra-vires. Hence, in order to determine this; article 19(2) of the Indian Constitution has been included to give eight essential conditions for the reasonable classification of any restriction imposed upon the ‘right to speech’, which has not been satisfied by the section 66A of the IT Act. 

Section 66A – An Ambiguous Provision

The terminologies used in Section 66A of the IT Act are deemed to be very ambiguous and loose in nature. It is so vague that it is very hard to put up a charge on an accused under this section distinctly. The executive authority is also not capable to comprehend the basis for bifurcating a particular speech or expression falling under the purview of this provision. For this reason, it is tend to be argued that what might be obnoxious to one individual might not be to the other and this makes the provision constitutionally vague in its entirety.

A legislation having ambiguities in its effective interpretation is declared to be void under the legal system of India. The same has been affirmed in the case of Kartar Singh v. State of Punjab. In this case, the court of law affirmed that an enactment must be proclaimed to be void for having ambiguous characteristics in its prohibitory application.  Therefore, the fundamental doctrine in our jurisprudence system asserts that a law which regulates people in the society should provide a just and rational notice of their conduct being unlawful or lawful. In the case of Connally v. General Construction Co., the court of law held that an enactment which either authorizes or forbids to do a particular act or omission in a language which is so ambiguous in its nature that an individual of ordinary intellect must essentially presume its interpretation and gets perplex by its application, infringes the fundamental of due process of law. Hence, the Apex Court of India accepted the submissions of petitioner in the instant case and settled on the ambiguity of the section 66A. 

Doctrine of Severability

There are certain cases in which the court of law is unpleased with the constitutionality of a law. In such cases, the doctrine of severability comes into a play. The raison d’être given by the respondent is ambiguous and irrational as it doesn’t assert which fraction or proportion of the Section 66A can be spared. Section 66A of the Information Technology Act, 2000 is legislated in a language which is prone to be misused by the authorities, and it contains an arbitrary restriction on the ‘freedom of speech and expression’ which is inconsistent with the Article 19(2) of the Indian Constitution. As stated under Article 13(1) of the Indian Constitution, any existing law inconsistent with Part III of the Constitution is only null and void to the fraction of its discrepancy and not further. 

In the historical case of Romesh Thappar v. State of Madras, the question pertaining to the constitutional validity of Section 9(1A) of the Madras Maintenance of Public Order Act, 1949 came before the court of law. The provision authorized the regional government to bar the ingress and circulation of a newspaper for the maintenance of public order and safety in that region. After this, the Constitution of India came into force and question raised on whether the provision is safeguarded under Article 19(2) of the Indian Constitution. Hence, the Hon’ble Supreme Court, after hearing the pleas of both sides, asserted that the reason behind the establishment of Section 9(1-A) is wider than that of Article 19(2) and it is impossible to severe the section under its shield. Therefore, in such cases, the impugned legislation will fail in its entirety. This judgment of the Apex Court has acted as an important judicial precedent in the Shreya Singhal’s case because of its rational justification over the scope of liberty to speech and expression in our country.

Infringement of Article 14

In the Shreya Singhal’s case, the petitioner had affirmed that those offences which are ambiguous, irrational and discriminatory in nature tend to violate the Article 14 of the Indian Constitution and results in the prejudiced application of the law. In addition to it, it was asserted by the petitioner that section 66A of the IT Act doesn’t conform to the essentialities of twin test. There is no intelligible differentia present between the public transmission of messages through live speech and the internet. Therefore, it is arbitrary to form a new class of offenders on the basis of it. It was also affirmed that Section 66A of the IT Act sanctions people with maximum 3 years of imprisonment, which is contrary to the offence of defamation having 2 years of maximum sentence prescribed in it. Along with this, the offence of defamation falls under the purview of non-cognizable offence whereas an offence under Section 66 is cognizable. 

The Supreme Court disagreed with the submission of the petitioner and affirmed that there is an intelligible differentia present between the public transmission of messages through live speech and the internet. It was stated by the court of law that the transmission of obnoxious texts through the internet is cost-effective and less time consuming as compared to live speech. Therefore, such messages get available to the wider public during a short of span of time and create a chance of expediting public disorder. Hence, the petitioner challenges to Article 14 got failed before the Apex Court of law. 

Revocation of Section 118(D) of The Kerala Police Act

Apart from Section 66A of the IT Act, Section 118(d) of the Kerala Police Act was also challenged in the Apex Court. This section affirms the offence of causing infuriation to any individual by transmission of statements or messages through any means of communication. The petitioner averred that the provisions embedded under Section 118(d) of the Kerala Police Act are similar to that of Section 66A of the IT Act. Hence, it was similarly contended to be out of the purview of reasonable classifications prescribed under Article 19(2) of the Indian Constitution and termed to be violative of Article 19(1)(a). Therefore, the Apex Court took cognizance of its constitutionality and held it to be ultra-vires to an equal extent as it does for Section 66A of the IT Act. 

Abrogation of Section 79

As per Section 69A of the IT Act, a website can be blocked only after following numerous procedural rules and regulations including listening to the originator and intermediary. After that, the website can be taken down either by the Designated Officer while abiding with the 2009 Rules or when the Hon’ble Court of law authorizes the Designated officer to do so. However, there is nowhere mentioned under Section 69A read with 2009 Rules that the intermediary has a liability to block particular information from the digital realm. The sole ground for that to happen is when the intermediary doesn’t block an explicit content expeditiously upon a prompt order of the court. This is the only ground mentioned under Section 79(3)(b) of the IT act, otherwise, it will be very difficult for the intermediaries like Instagram, Yahoo etc. to comply with the orders when millions of requests are awaiting, and the intermediary is then obligated to authenticate as to which requests are rational and which are not. 

It should be noted that the direction or order given by the court of law should be in compliance with the subject matter penned down under Article 19(2) of the Indian Constitution. Therefore, bearing this in mind, the Apex Court of India in the instant case proclaimed that the illegal acts or omissions prescribed beyond Article 19(2) don’t come under the purview of Section 79 and consequently rejected the plea of the petitioner to strike down Section 79 of the IT Act. 

Judicial Pronouncement at a Glance

1. Section 66 of the IT Act was abrogated in its entirety for infringing Article 19(1)(a) of the Indian Constitution and not protected under Article 19(2).  
2. Section 69A and Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 was held intra-vires to the Constitution of India.
3. Section 79 was affirmed to be legitimate subject to the reading down of Section 79(3)(b) of the IT Act.
4. Section 118(d) of the Kerala Police Act was also struck down by the Apex Court of India.

Overview of the Judicial Pronouncement 

The judicial pronouncement by the division bench of the Supreme Court has secured liberty to speech and expression provided to the people under Article 19(1) (a) of the Indian Constitution and restricted irrational application of power by the executives of this country. It has also provided crystal clear guidelines for the legislature to enact laws in relation to the freedom of speech and expression with certain reasonable restrictions binding on it. However, it should be noted that it is a democratic right of each and every viewer to be familiar with the reason for constraining his/her viewership of specific content in the digital realm, which had been missed to implore by the Apex Court in its judgement. 

The Supreme Court of India has relied on the technical, convoluted and dicey process of state to understand the potential and competence of parties involved. For example, the rules enacted in 2009 have been enforced with an inference that firstly, the laws pertaining to the website blocking provides a rational chance of being contacted and notified to the alleged offender and secondly, it gives a presumption that the intermediary will justify and defend the online content from being taken down by the executive body. These deductions are practically inept and extraneous. 

The offences committed through the Internet are more critical in nature due to its geographic spread and anonymity. It provides a virtual shield to the content-originator making it highly unlikely for him/her to get caught. Apart from it, the intermediaries will also never spend their resources in safeguarding the content of third parties and are going refuse to mingle with any kind of dispute. Hence, the content available on the internet will be available to the larger audience throughout the world despite the proclamation from the executive authorities to ban it.

The rule of blocking has been prescribed to be executed in secrecy under Rule 16 of the Information Technology (Procedures and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. It affirms that the confidentiality of blocking order should be maintained while pronouncing such an order. Although, this rule was argued in the Shreya Singhal case but it was left untouched by the Supreme Court in its judgment. Therefore, in order to uphold the doctrine of transparency, a notice should be published on the hosting page proclaiming blocking orders of the government for the specified content. This will not only aware the content-creators and viewers about the content ordered to be put down by the executive authority but will also promote lucidity in the digital realm.

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