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Shreya Singhal: A Landmark Judgement

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Shreya Singhal is a landmark judgement, which upholds the democratic principles of the nation and safeguards one of the most important rights in a democracy. Section 66A in The Information Technology Act, 2000 prescribes punishment for sending messages that are offensive in nature by the means of any communication service like a computer resource, computer, computer system, etc. Section 66A has laid down that if any person sends

  • information that is of a menacing nature or can incite offense 
  • information that is false and this is known by the person, but still sends such information for annoying, insulting, injuring, endangering, obstructing, intimidating the other person or sending it because of hatred, rivalry or malintention
  • information that is deceiving or misleading the other person with regards to the origin of such information1

via a communication device which also includes devices like mobile phones and tablets, shall be punishable with imprisonment whose term may extend up to three years and with a fine. According to the Act, such information or messages can be of any form; including attachments in text, image, audio, video or any other electronic record.

Shreya Singhal vs Union of India:

Citation – (WRIT PETITION (CRIMINAL) NO.167 OF 2012) 

Decided on –  24 March 2015

Shreya Singhal vs U.O.I2 turned out to be a landmark judgment for protecting the freedom of expression in our country. The Bench adjudicating the case included Justice J. Chelameswar and Justice Rohinton Fali Nariman. By the virtue of this case, the Supreme Court struck down Section 66A of the Information Technology Act, 2000 dubbing it unconstitutional. Section 66A of the Information Technology Act, 2000 provided the authorities with the power to arrest a person who has posted information that is “offensive.” In the judgement, which was penned down by Justice J. Chelameswar and Justice Rohinton Fali Nariman, it was said that Section 66A of the Information Technology Act, 2000 is not covered in the ambit of Article 19(2) of the Constitution of India, and is, therefore, ultra vires or unconstitutional and needs to be entirely struck down. The Apex Court found Section 66A of the Information Technology Act, 2000 to be in violation of Article 19 which guarantees the right to freedom of speech and expression.

Brief Facts of the case:

Shreya Singhal vs U.O.I is a batch of writ petitions which are filed under Article 32 of the Constitution of India. The various writ petitions raise extremely essential questions with regards to primarily the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The foremost petition was brought to Court after two girls from Maharashtra were arrested by the Thane Police in 2012 because of a post on Facebook by the girls. In November 2012, Shiv Sena chief Bal Thackeray had passed away, and it was for his funeral that Mumbai was facing a complete shutdown. The girls commented on this shutdown which led to their arrest by the cops. This arrest resulted in massive outrage across the country because of how cyber law was being misused. Certain other instances of arrests followed which ignited this matter like the arrest of Ambikesh Mahapatra who was a Jadavpur University professor over his Facebook post which was a caricature of Trinamool Congress chief Mamata Banerjee. Another such instance was when Aseem Trivedi, who is an activist, had drawn cartoons which were a mocking satire of the Constitution and the Parliament showcasing how both these institutions were ineffective.3

Case Analysis:

  • The Bench decided to safeguard the right to freedom of speech and expression by striking down Section 66A of the  Information Technology Act, 2000. While giving its judgement, the Bench said that “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. We, therefore, hold 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.”
  •  Are the grounds for ‘reasonable restriction’ being satisfied in the Shreya Singhal case or not? 
  • A right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. However, Article 19(2) puts a ‘reasonable restriction’ to its preceding clause and limits this aforementioned right in the interests of the sovereignty and integrity of India, the security of the state, public order, decency or morality, defamation, or incitement to an offence. The petitioners in this case presented the curtailment of freedom of speech and expression as the main contention in this case. They said that the Section 66A of the  Information Technology Act, 2000 could not be protected under the reasonable restrictions prescribed under Article 19(2). In this matter the judges of the Bench penned in the judgement that “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.” 4 
  • This judgement also shed light on the fact that there is no nexus between Section 66A of the  Information Technology Act, 2000 and the possibility of disruption of public order or incitement for commission of an offence which are the grounds for reasonable restriction of right to freedom of speech and expression. “The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest,” therefore, the Court held that there was no proximity between these two. The Bench in its judgment also added that  “The information disseminated over the Internet need not be information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the [Indian] Penal Code at all.” The latter part of this quote shows us how it is wrong to punish someone for being annoying or offensive, since it is not declared as a crime by law. Punishing someone for the same would be a huge epitome of unfairness. 
  • The Shreya Singhal judgement has been written after considering various other judgments of this Court which fall on the lines of the importance of freedom of speech and expression for maintaining liberty and democracy of the country.  The Court has referred to the case of Romesh Thappar v. State of Madras, [1950] S.C.R. 594 at 6025, where the Court had held that “freedom of speech lay at the foundation of all democratic organizations.” The Court also referred to the judgement of Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at 8666, where the Court had held that “freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved.”
  • This is also mentioned in the judgement of the case where the judges have said that the terms used in the Act are “undefined, vague and open-ended”7 when it comes to defining what constitutes an offence under the Act. The Court further said that “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.” This also shows how the subjective interpretation of the Act could be a risk to administer justice. The basic tenets of a valid criminal law are being contradicted by the provisions of Section 66A of the Information Technology Act, 2000 because the provisions are vague and not defined precisely which is why this would amount to mindless and reckless censorship. 
  • The judgement also refers to the U.S. Supreme Court. There have been a series of judgements from the U.S.Supreme Court where Sections have been declared unreasonable and arbitrary and then have been struck down because of their vagueness. It is believed that a Section which has no clear guidance with regards to what creates an offence and is difficult to understand by the law abiding citizens or other authorities, needs to be struck down. 
  • Not only is Section 66A in violation of Article 19 but the contentions put forward by the petitioners also showed how Section 66A was in violation of Article 14 since Section 66A intended to punish anyone who was using a particular medium of communication. This was viewed to be discriminatory by the Court.8

Conclusion:

Section 66A of the Information Technology Act, 2000 was vague and its liberal interpretations by law enforcement authorities was a potential administration of injustice. Citizens that were innocent were put behind bars and it was important to remedy this with fairness. India, as a country, takes great pride in its ideals of democracy which are proudly enshrined in the Preamble to the Constitution of India as well, so continuing with Section 66A of the  Information Technology Act, 2000 would be a gross miscarriage of justice. This judgment, is indeed, a landmark judgement, which upholds the democratic principles of the nation and safeguards one of the most important rights in a democracy, which is the right to freedom of speech and expression.

Endnotes

  1. The Information Technology Act, 2000
  2. WRIT PETITION (CRIMINAL) NO.167 OF 2012
  3. https://www.lexology.com/library/detail.aspx?g=8ca29f1a-6e00-45ab-ad8f-ee6ff3ab6161#:~:text=Section%2066A%20of%20the%20IT,The%20advent%20of%20the%20controversy
  4. https://www.thehindu.com/news/national/supreme-court-strikes-down-section-66-a-of-the-it-act-finds-it-unconstitutional/article10740659.ece
  5. Romesh Thappar v. State of Madras, [1950] S.C.R. 594 at 602
  6. Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at 866
  7. https://www.thehindu.com/opinion/lead/the-judgment-that-silenced-section-66a/article7032656.ece
  8. https://indiankanoon.org/doc/110813550/
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Virali Joisher

Student, Kirit P Mehta School of Law, NMIMS Mumbai

Virali is an enthusiastic law student who has big ambitions, and a bigger spirit to always keep learning. She is exploring her interests in the field of law and feels strongly for women’s issues. For any Clarifications, feedback, and suggestion, you can reach her at virali.joisher@gmail.com

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