Shreya Singhal v. Union of India: A Critical Analysis [Part-II]
Authored by Abhinav K Shukla, Assistant Professor of Law, Hidayatullah National Law University
1. Doctrine of Reasonable Restriction
Article 19 (2) refers to “reasonable restriction” over the exercise of freedom of speech and expression.[i] In the case of Indian Express (Bombay) Private Limited v. Union of India[ii] the Supreme Court has held that freedom of speech and expression is subject to reasonable restriction under Article 19 (2) and (6) within the ambit of which valid legislation can be carved out. Moreover, the reasonable restriction is subject to judicial review and is not to be determined by the Legislature.[iii]
Similarly, in People’s Union for Civil Liberties v. Union of India,[iv] it was held that freedom of speech and expression guaranteed under Article 19 (1) (a) means the right to express one’ conviction and opinions freely by word of mouth, printing, picture or in any other manner. Again, in the leading judicial precedents of LIC v. Manubhai D. Shah[v] and Directorate of Film Festivals v. Gaurav Ashwin Jain[vi] the Apex Court has observed that exhibition of movies, cinematographs, videos and cable television as a facet of freedom of speech and expression. On the other hand, it has to be observed that section 66A uses general terminology to define an offence such as 'annoyance', or 'inconvenient' etc., without an attempt being made to define the same.
At the same time, it defines only the medium through which such information is being disseminated. Thus, no line of difference is being drawn between a general discussion on an issue and posting information on social media with the intent to malign or annoy a person.
Reliance must also be drawn from the constitutional bench judgment in Virendra v. the State of Punjab.[vii] wherein it was held: “It is certainly a serious encroachment on the valuable and cherished right to freedom of speech and expression if a newspaper is prevented from publishing its views or the views of its correspondents relating to or concurring to what may be a burning topic of the day. Our social interest ordinarily demands free propagation and interchange of views. However, circumstances may arise when the social interest in public order may require reasonable subordination of social interest in free speech and expression to the needs of our social interest in public order.” Internet is a platform for the exchange of ideas. With the development of social media, the internet is also used to express one's ideas and even as a forum for discussion of vivid issues. Thus, based on the judicial dictum, Hon'ble Supreme Court has rightly held that section 66A abrogates the freedom of speech and expression of the citizens of India.
2. Doctrine of Vagueness
Another striking aspect of the judgment is that it is the first time that the Hon'ble Supreme Court has invoked the doctrine of vagueness. According to the doctrine of vagueness, legislation is struck down as unconstitutional if the language of such statute is too vague or arbitrary.[viii] Similarly, in Reno, Attorney General of United States v. American Civil Liberties Union[ix]the United States Supreme Court struck down the Communications Decency Act, 1996, which dealt with material on the internet as the term 'patently offensive', which is similar to the term ‘grossly offensive’ as used u/s 66A on the ground of being vague. Under the Indian jurisprudence, the Supreme Court relied on Kartar Singh v. the State of Punjab[x] wherein the vagueness was invoked as a ground for the unconstitutionality of an Act.
The Court held: “It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted that laws should give the person a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague law may trap innocent person by not giving fair warning.”
Thus, by application of the doctrine of vagueness, section 66A can be validly struck down as held by the Supreme Court as none of the terms constituting an offence under the aforesaid section have been defined. This leads to ambiguity due to vagueness in terminology, and hence, no clear line of distinction between a prohibited and allowed act can be drawn.
Application to Foreign Nationals: An Ambiguity
Despite the Hon'ble Supreme Court has addressed the validity of section 66A from varied perspectives. Nevertheless, the Court has struck it down on being violative of Article 19 (1) (a). Thus, the Apex Court erred in its ruling when it did not take into account foreign nationals accessing the internet from India.
In M.SM. Sharma v. Sri Krishna Sinha[xi] the Supreme Court held that the fundamental right of freedom of speech and expression is available only to the citizens, and therefore, non–citizens cannot claim the benefit the liberty. The same was held in the case of Express Newspaper (P) v. Union of India[xii] wherein the Court explicitly held that fundamental freedoms under Article 19 are available only to the citizens. This makes the situation more vulnerable to foreign nationals, including tourists who use the internet in India, as section 66A would still apply to them. Moreover, the Court has upheld the aforementioned section on the ground of Article 14 but at the same time has struck it down on the ground of being vague. Thus, it is unclear whether 'vague'' amounts to 'arbitrary confusing to its application on foreign nationals.
Thus, this landmark judgment which adds another facet to Article 19 (1) (a), namely, freedom to expression over the internet, can be summarized in terms of 'chilling effect', which strikes at section 66A. In S. Khushboo v. Kanniamal[xiii] the Supreme Court elucidating the doctrine of ‘chilling effect’ held: “In the present case, the substance of controversy does not touch premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant’s remarks. If the complainants vehemently disagreed with the appellant’s views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner having ‘chilling effect’ on freedom of speech and expression.”
Thus, information that may be grossly offensive or which causes annoyance is undefined terms that into its net large a number innocent speech. In the case of the Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal[xiv] , it was held that the doctrine of a chilling effect is the same irrespective of means of communication, including the internet. A person may discuss or advocate employing writing over social media over the internet, which may be literary work and, for others, a cause of annoyance. Therefore, section 66A is so widely cast that virtually any opinion may be covered within the net of section 66A. Henceforth, to conclude, relying on the cases of Kameshwar Prasad v. the State of Bihar[xv] and Kedar Nath Singh v. the State of Bihar[xvi] and given the fact that the offences created by section 66A are not covered under Article 19 (2) rather is vaguely worded, the Supreme Court rightly declared section 66A of the I.T. Act, 2000 constitutionally invalid.
[i] DR. DURGADAS BASU, COMMENTARY OF THE CONSTITUTION OF INDIA 2256(8th Ed. 2007). [ii] (1985) 2 SCR 287. [iii] Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118. [iv] (1997) 1 SCC 301. [v] LIC v. Manubhai D. Shah, (1992) 3 SCC 637. [vi] Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737. [vii] Virendra v. State of Punjab, 1958 SCR 308. [viii] Winters v. People of State of New York, 92 L. Ed. 840. [ix] Reno, Attorney General of United States v. American Civil Liberties Union, (1997) 521 U.S. 844. [x] Kartar Singh v. the State of Punjab, (1994) 3 SCC 569. [xi] M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395. [xii] Express Newspaper (P) Ltd. v. Union of India, AIR 1958 SC 578. [xiii] S. Khushboo v. Kannaimal, (2010) 5 SCC 600. [xiv] The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal, (1995) 2 SCC 161. [xv] Rameshwar Prasad v. the State of Bihar, (1962) 3 Supp. SCR 369. [xvi] Kedarnath Singh v. the State of Bihar, (1962) 2 Supp. SCR 769.
You can read Part-I of this post here.