Authored by Abhinav K Shukla, Assistant Professor of Law, Hidayatullah National Law University
Introduction
“The freedom of speech is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process. Freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succour and protection to all other liberties. It is the mother of all liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters.” - Dr B.S. Chauhan & Swantanter Kumar JJ.[i]
The Hon’ble Supreme Court’s judgment in the case of Shreya Singhal v. Union of India[ii] is a landmark judgment that has reiterated the intent of the constituent assembly, dictating the supremacy of freedom of speech and expression as provided under Article 19 of the Constitution. The judgment of the Hon’ble Court has added another dimension to Article 19. It has far-reaching implications upon how millions of Indian Citizens access social networking websites. In a nutshell, the Supreme Court has invalidated section 66A of the Information Technology Act, 2000 [Hereinafter referred to as “the I.T. Act, 2000”] thereby giving the citizens to share, comment and post anything according to their whims and fancies on the internet especially on social media, unless the act of a person does not constitute an offence under other sections of the I.T. Act, 2000 or any other law time being in force.
This is one of the celebrated judgments of the Hon’ble Apex Court delivered by R.F. Nariman & J. Chelamwswar JJ. In the backdrop of the instant case, challenging the validity of section 66A [2] of the I.T. Act, 2000, lays innumerable matters of the arrest of ordinary citizens upon fair criticism of political leaders upon social media and their consequential harassment at the hands of police.
Facts of the Case
Mumbai police arrested two girls Shaheen Dhada and Rinu Srinivasan, in 2012 for communicating their dismay at a bandh brought in the wake of ShivSena’s boss Bal Thackery's demise. The girls posted their remarks on Facebook. The arrested girls were discharged later on, and it was decided to drop the criminal cases against them. Yet, the arrests of them pulled in across the country protest. It was presumed that the police had abused their authority by invoking Section 66A at the same time. It is a breach of the fundamental right of speech and expression. The offence under section 66A of the IT act being cognisable, law enforcement agencies have the authority to arrest or investigate without warrants based on charges brought under the Information Technology Act. The outcome of this was many highly famous arrests of people throughout the country for posting their views and opinions, whereas the government called them ‘objectionable content', but more often, these content were dissenting political opinions. In January 2013, the central government had turned out with an advisory under which no person cannot be arrested without the police having the prior approval of the inspector general of police or any other senior official to him/her.
The instant case is a writ petition filed under Article 32 of the Constitution of India pleading that section 66A of the I.T. Act, 2000 is violative of Article 19 (1) (a) of the Constitution. The petition was filed to prevent the abuse and chaos caused by section 66A after the arrest of the two women arrested in Mumbai over their Facebook posts. The instant matter involves a series of writ petitions challenging the validity of section 66A and other sections of the I.T. Act, 2000. It is pertinent to observe that section 66A did not originally form part of the I.T. Act, 2000 and was inserted vide an amendment. The Statement of Objects and Reasons read as: “A rapid increase in the use of computer and the 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 an intermediary, e-commerce frauds like impersonation known as phishing, identity theft and offensive message through mass communication services. So, penal provisions are required to be induced in the Information Technology Act, 2000, Indian Penal Code, 1860, Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973.” In the light of the aforesaid object, section 66A prescribes punishment for three kinds of cyberlaw offences, namely,
Any information that is grossly offensive or of a menacing character;
Any information which known to be false, but the computer resource is persistently used to cause annoyance, inconvenience, danger, insult, hatred, criminal intimidation, etc.; and
Any electronic mail or electronic message with the intent to annoy, inconvenience or mislead a person as to the origin of the message.
Issue Raised
Therefore, the primary issue raised by the Petitioners in the instant matter before the Hon’ble Apex Court was that aforementioned section 66A was ultra vires of Article 19 (1) (a) of the constitution as the offence being carved out is not covered under 'reasonable restriction' as provided under Article 19 (2).
Petitioner's Arguments
Section 66A takes away the Freedom of Speech and Expression guaranteed under Art. 19(1)(a) and is not saved by the reasonable restriction mentioned under Art. 19(2).
That causing annoyance, inconvenience etc., are outside the scope of Article 19(2).
Section 66A seeks to create an offence but has infirmity and vice of vagueness as it does not clearly define its terminology. The terminology used is subjective and are left open at the desire and will of the law enforcement agencies to interpret it. The limitation is not present.
Article 14 violated as there is no intelligible differentia as to why only one means of communication is targeted by this section.
Respondent's Arguments
Legislature is in the best position to address the requirements of the people. The courts will only step in when a law is violative of Part III. There is a presumption in favour of the Constitutionality of the law in question.
Court would so construe a law to make it functional and in doing so can read into or read down the provisions of law.
Only probability of abuse cannot be a justification to declare a provision invalid.
Loose Language is used to safeguard the rights of the people from those who violate them by using this medium.
Vagueness is not a ground to declare a statute unconstitutional if it is otherwise qualified and non-arbitrary.
Judgment of the Court
The Supreme Court perused the arguments from both sides, i.e., the Petitioners as well as the Respondents and delivered a unanimous judgment declaring section 66A of the I.T. Act, 2000 unconstitutional.
Section 66A is struck down in its entirety as being violative of Article 19 (1) (a) and not protected under Article 19(2).
Section 69A and IT (procedure & safeguard for blocking for access of info by the public) rules are Constitutionality valid.
Section 79 is valid subject to reading down of Section 79(3) (b).
Section 118(d) of the Kerala Police Act is struck down (public order).
Overview of the Judgement
The judgment has preserved and saved the freedom of speech and expression given to people under article 19(1) (a) of the Indian Constitution and also restrained the state from the arbitrary application of power in context to freedom mentioned under article 19 of the constitution, at the same time Given clear guidelines for further enacting a law concerning reasonable restriction on the fundamental right and freedom given by Indian constitution but miss to implore the principle of transparency for rules to block the website. It Needs some further interrogation and fine-tuning with viewers right as he/they must know why the state is not allowing them to have certain information, and that reason can be challenged by the viewers also.
However, the Apex Court has put a lot of faith in technical and complicated government processes based on the dicey understanding of the capabilities and capacities of the different parties involved. For example, the law regarding content-blocking procedure has been declared effective on the belief and presumption that the blocking of website rules (2009) gives a reasonable chance and opportunity to be heard and to challenge an unconstitutional blocking order. This is, many times, misleading. It presumes that the originator of content will be contacted and informed about the blocking of his/her content, and a reasonable opportunity will be given to challenge the blocking of the content. Secondly, the assumption that the intermediary will give reason and defend the content before the concerned government body. Both assumptions are practically far off the mark. The very technical nature of the internet, with its geographic spread and anonymity, makes it likely that the originator of the content may not be contacted because the content- the originator may be in a foreign country or can lack the resources to argue pursue his/her case. Intermediaries will not reasonably defend the content since they prefer to avoid spending resources on protecting third-party content. The cumulative impact of this is that unreasonable government blocking orders will continue to affect the information available to access.
The blocking procedure continues to be covered in secrecy by the application of Rule 16 of the Blocking of Access rules, which demands that confidentiality must be maintained in case of any blocking orders. This rule was contested in the Shreya Singhal case, but the Apex Court left this rule untouched. For originators of content and viewers to notice that their content has been ordered to be blocked by the government or its agency, the hosting page must carry notification of the order for blocking along with reasons.
Analysis
The judgment of the Hon'ble Court is per curiam with the precedents and within the scope of Article 19 (1) of the Constitution. Moreover, the Hon'ble Court has relied upon the prior judgments of the Supreme Court and even discussed the American Jurisprudence to distinguish the notion of liberty in India and the United States of America. It was never a question before the Hon'ble Court that whether the use of social media and other similar sites and commenting on the internet is covered under the expression “freedom of speech and expression”. The answer to this question is in affirmation. However, the question to be determined was whether section 66A is protected by Article 19 (2).
[i] In re Ramlila Maidan Incident (2012) 5 SCC 1 [ii] Shreya Singhal v. Union of India, W.P. (Crl.) 167/2012: 2015 SCC Online SC 248.
This blog post has also been published in Volume I, Issue I of The Journal of Constitutional Studies, published by The Society For Constitutional Law Discussion.
You can read Part-II of this post here.
Updated on 11th November 2023