OVERVIEW OF SHREYA SINGHAL V. UNION OF INDIA
The case of Shreya Singhal is one of the historical judgments in the history of Supreme Court (hereinafter referred as ‘the SC’) where the SC declared the entire Section 66A of the Information Technology Act, 2000 (hereinafter referred as ‘the Act’) as unconstitutional.
This case was primarily based on the right of Freedom of Speech and Expression which is a fundamental right given under the Constitution of India, 1950. In this case, a Public Interest Litigation (PIL) was filed and Sections 66A and 69A of the Act were challenged which were added to the legislation in 2009. The reason for amendment was that these sections of the Act were not compatible with the Constitution of India. The SC also took suo moto action against Section 79 of the Act.
Section 66A of the Act dealt with the punishment for sending offensive messages through communication service, etc. This message should be sent from the electronic mail where the electronic mail contains a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and the other electronic record, which can be transmitted with the message.
Section 69A of the Act dealt with power to issue directions for blocking for public access of any information through any computer resource. Section 79 dealt with exemption from liability of intermediary in certain cases.
BACKGROUND OF THE CASE
A status was updated by 21 years old Shaheen Dhada from Palghar, Maharashtra in November 2012, saying that Mumbai had been closed not in respect but in the fear for the funeral procession of Shivsena founder Balasaheb Thakerey. Dhada and her friend Rini were arrested and Dhada was charged under Section 295A of Indian Penal Code, 1860 (IPC) and scandalous Section 66A of the Act.
It was assumed that the police authority has abused its power by invoking the Section 66A of the Act and also infringed the constitutional right of Freedom of Speech and Expression. The crime under Section 66A of the Act was so clear that police authority had power to arrest a person without warrant on the basis of charges brought under the Act. With this extra ordinary power to the authority there have been great number of cases filed under this section.
The Central Government had turned out in January 2013 with an advisory under which no person could be arrested without prior approval from police inspector general or any other senior officer to him/her by the police.
For the first time within the U. S., the dispute between the first amendment i.e. Freedom of Speech and Expression and Cyberspace came into in Reno v. ACLU. In this case, Justice Stevens held the impugned statue as unconstitutional. The reason for holding it unconstitutional was that “it suppresses the massive amount of speech that adults have in cyber world.”
INTERNATIONAL LAWS RELATED TO THE FREEDOM OF SPEECH AND EXPRESSION
The freedom of expression has been guaranteed in the Article 19 of the Universal Declaration of Human Rights (UDHR) and also in the International Covenant on Civil and Political Rights as a basic human right (ICCPR).
These declarations states that, “the right of expression includes freedom to seek, receive, and impart an information and ideas of all kinds”. On 5th July, 2012 the United Nations Human Rights Council (UNHRC) has adopted a resolution which safeguards the people’s right of freedom of speech and expression on the internet too.
- The liberty of speech and expression which is granted within the Constitution of India, 1950 itself under Article 19(1)(a) is being totally excluded from the Section 66A of the Act. Also, it does not safeguard or protect by the reasonable limits provided under Article 19(2) of the Constitution of India, 1950.
- It’s outside the reach of Article 19(2)(c) of the Constitution of India, 1950 to cause annoyance, discomfort, etc.
- Section 66A of the Act itself is very vague. The terminology used is extremely subjective and provides great chance to interpret it as per knowledge so there is no any limitation on it.
- The petitioners also contend that their rights under Articles 14 and 21 of Indian Constitution of India, 1950 are breached because no intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication. To punish somebody because he uses a specific medium of communication is itself a discriminatory object and would fall foul of Article 14 of the Constitution.
- The higher number of cases registered and the high probability of the violence isn’t the ground on which the apex authority should declare the rule completely as null/void.
- The subjective terminology is being used to defend the citizens’ rights only from those who use this medium to threaten them.
- the vagueness can’t be the ground to declare the law as unconstitutional if it’s arbitrary and eligible.
- One of the landmark judgement of the Supreme Court which exclusively talks about the Freedom of Speech and Expression is no other than the Menaka Gandhi v. Union of India where the SC held that the Indian Constitution’s preamble itself guarantees the liberty of thoughts and expression and therefore the right given under Article 19 doesn’t restrict to any geographical area and moves with a citizen’s right to collect information and exchange ideas with others.
- Within the case of Romesh Thappar v. State of Madrasit’s claimed that “Freedom of speech and expression that of the media lies at the bottom of all democratic institutions, without free political debate, no public education is feasible that’s necessary to the right functioning of the favoured government system.” Freedom of speech and expression includes the proper to speak and receive information like freedom of expression.
- Within the case of Union of India v. Association for Democratic Reforms and Anr, the Supreme Court held that “One-sided information, disinformation, misinformation and non-information all create uninformed citizenship that creates democracy a farce. Freedom of speech and expression includes the proper to speak and receive information, including freedom of expression. The foremost essential of all freedoms is freedom of speech and expression.
- Within the leading case of Bennett Coleman v Union of India, it had been observed that freedom of speech and of the press is that the ark of the covenant of democracy because the evaluation of people’s views is significant to the functioning of the democratic institution.
- The Supreme Court within the case of Sakal Papers v Union of India observed that, under a constitutional system, freedom of speech and expression is one among the foremost important principles.
- Similarly, within the case of Khushboo v Kanniammal and Anr, the Apex Court observed that freedom of speech and expression is important for essence, albeit it’s not absolute as we must accept unpopular views. the proper to freedom of speech and expression includes the free flow of views and opinions that are crucial to sustaining social existence. The practice of ventilation is of great social importance.
CONSTITUTIONALITY OF SECTION 66A OF THE ACT
The context of the information mainly there are three points which need to be considered which are also given in Abrams v. Unites States, are as follows:
The first is discussion, the second is advocacy and the third is incitement. Clear debate or even advocacy of any particular cause is at the core of Article 19(1)(a) of the Constitution, regardless of how despised, controversial or hated. Article 19(2) of the Constitution is merely initiated when any such discussion or advocacy steps into the level of incitement. it’s at this stage/level that legislation could also be drawn up to curb speech or expression that inexorably leads or tends to cause public disorder or is probably going to cause or appear to affect India’s independence and dignity, national security, friendly relations with other countries, etc.
In the PIL files the Supreme Court of India agrees with the petitioner that none of the ground provided in the Article 19(2) of Constitution of India, 1950 were in capacity to invoke as authorized defense to the validity of section 66A of the Act. Also, the apex court agreed with the petitioner on the point that the term offensive used under Section 66A of the Act is extremely vague and subjective one as a matter in information or massage may be offensive for somebody and for somebody it will not be an offensive one. So, it’s based on the interpretation of once individual.
While providing with the judgement SC takes two important points into consideration.
- The first one was definition is an exclusive one and
- Second is that it only talks about the medium used for massage transmission, and not say anything about the information that being circulated.
And hence the apex court agreed with petitioner on the point that, the Section 66A of the Act is directly affecting the public’s rights. The SC said that there’s no distinction between the mere discussion and the advocacy of particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc.
So, the petitioner was correct in saying that Section 66A of the Act is unconstitutional on the ground that this section directly creates the offence against the persons who uses internet and annoy or causes the inconvenience to other is clearly the infringement of the right of Indian citizen of freedom of speech and expression. Legislation which arbitrarily or excessively invades the right can’t be said to contain the quality of reasonableness and unless it strikes a correct balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19 of the Constitution of India, 1950, it must be held to be wanting in that quality.
JUDGMENT IN A GLANCE
- Section 66A of the Act was completely in the violation of Article 19(1)(a) of the Constitution of India, 1950 and is not protected in compliance with Article 9(2).
- Section 69A of the Act and the rules regarding the procedure for blocking the information for public access being held as constitutional.
- Section 79 of the Act is applicable prior to Section 79(3)(b) of the Act being interpreted.
SIGNIFICANCE OF THE JUDGEMENT
- In this judgement, Supreme Court discussed the freedom of speech and expression and the restriction which can reasonably imposed on it.
- The apex court also said that the any statute which have the vague meaning in its provisions shall be stuck down as earliest so that this will not misguide the administrator and also will not harm/ infringe the rights of the people.
- The statute may have some loopholes but there should not be any kind of vagueness and uncertainty or subjectivity in it.
- The legislation cannot put any kind of restriction on people’s right of freedom of speech and expression which is guaranteed by the Constitution of India, 1950.
- The court highlighted on the point of “free speech” and “hate speech”. The Court said that it is important to check the gravity of the words and statement used in the comment.
- By arbitrary decision, any innocent comment can just not be put in the ambit of Hate Speech and any hate speech cannot be given the shield of right to Speech and Expression under Article 19(1) (a) of the Constitution of India, 1950.
- In this case the court applied the “Rule of Severability” and said that even a PIL filed challenges the 3 provisions of the Act, and the putting a question mark on the whole legislation by applying this rule court only stuck down the Section 66A of the Act which is vague and subjective one. While declaring the Section 66A as unconstitutional, the SC said that one provision which is vague in nature does not make the whole law as unconstitutional.
The Right of Freedom of Speech and Expression is considered to be one of the important aspects of the legal system. In the recent case of Kanahya Kumar, the words were spoken out publically and the statements have that much of power which can create a public nuisance in country. But in the current case, the girl doesn’t have any intention to create any misconduct provided in Section 66A of the Act. It is definitely true that defamation and sedition are always the exceptions to the Freedom of Speech and Expression. But in the current case none of these two had been attempted by the girl who is arrested under Section 66A of the Act. So, I agree with the judgement delivered and I believe that the Supreme Court’s decision of giving the judgment in favor of Shreya Singhal was a balanced and rational one.
 Shreya Singhal v. Union of India, (2013) 12 SCC 73- PIL Filed. Q [(2015) 5 SCC 1].
 Article 19 of the Constitution of India, 1950.
 Reno v. ACLU, 117 S. Ct. 2329 (1997).
 Supra note 2.
 Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621.
 Romesh Thappar v. State of Madras, 1950 AIR 124.
 Union of India v. Association for Democratic Reforms and Anr, 2002 (3) SCR 294.
 Bennett Coleman v. Union of India,  3 S.C.R. 842.
 Sakal Papers v. Union of India,  3 SCR 842.
 S. Khushboo v. Kanniammal and Anr, AIR 2010 SC 3196.
 Aayush Akar, Shreya Singhal case and its Impact on Indian Society, (published on 02/12/2019), https://www.latestlaws.com/articles/shreya-singhal-case-and-it-s-impact-on-indian-society-by-aayush-akar/ (lastly accessed on 27/05/2020).
 Abrams v. United States, 250 US 616.
Author: Amey Jadhav,
Maharashtra National Law University, Aurangabad, 1st Year.