In the Supreme Court of India Criminal/ Civil Original Jurisdiction Case No. Writ Petition No. 167 of 2012 Petitioner Shreya Singhal Respondent Union of India Date of Judgment Decided on 24th March, 2015 Bench Justice Jasti Chelameswar, Justice Rohinton Fali Nariman.
Background
Political Background
A major amendment was made in 2008. It introduced the Section 66A which penalized sending of “offensive messages”and also introduced the section 69. It was passed on 22 December 2008 without any debate in Lok Sabha. It was signed into law by president Pratiba Patil, on 5th February, 2009.
Shreya Singhal is an Indian born lawyer. She was born in a family of eminent lawyers. Her fight against Section 66A of the Information Technology Act, 2000 brought her to the national prominence in India. By this amendment, Government of India has restricted freedom of speech for voiding self harm and misuse. This allowed arrest of any person which the law per se feel like harmful or misuse. Over a couple of years, there has been many cases in which police has arrested people for the broadcasting of the information through computer resource or communication devices. In 2012, Shreya filed a Public Interest Litigation in the Supreme Court of India, against the Act and in 2015, the Hon’ble Court has struck this Section down. This was hailed as a major step in the country’s quest for the freedom of speech and expression.
International Background
For the first time in the U. S., the dispute between the first amendment i.e. Freedom of speech and expression and Cyberspace came into in Reno vs. ACLU[1]. In this case Justice Stevens held the impugned statue as unconstitutional. The reason for holding it unconstitutional was that “it suppresses the large amount of speech that adults have in cyber world.”
In Abrams v. Unites States[2] and Whitney v. California held that there are three concepts which are fundamental in understanding the reach of freedom of speech and expression the most basic of human rights. The first is discussion, the second is advocacy and the third is incitement. Mere discussion or even advocacy of a particular causes howsoever unpopular is at the heart of Article 19(1)(a).It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. This is how some of the International Courts are interpreting the disputes between Freedom of Speech and unreasonable restrictions on cyber space.
Human Rights Council of United nation as have also adopted a resolution to protect the freedom of speech and expression on July 5th, 2012.
Article 19 of UDHR and International Convention on Civil and Political Rights to protect the Freedom of Speech and expression for an individual.
Judicial Background
In various Cases, Hon’ble Court interpreted the freedom of speech and reasonable restrictions harmonising as per the facts of respective case. In this present case the Hon’ble Supreme Court held that all the restrictions imposed by the legislature can not be interpreted as reasonable restriction under Article 19(2) of the Constitution of India. Legislature can not restrict the freedom of speech and expression by taking the shield of Article 19(2).
Facts
1. In the year 2012, Shiv Sena leader Bal Thakerey died. There was bandh declared by the Shiv Sena People in Maharashtra.
2. These two girls Shaheen Dhada and Rinu Srinivasan lived in Thane, involved in this case. One of them posted something on Facebook and the other one liked it.
3. They both expressed their displeasure at a bandh called in the wake of Shiva Sena chief Bal Thackery’s death.
4. They were arrested by the Mumbai police in 2012 under Section 66A of Information Technology Act, 2000.
5. This Section punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will.
6. The arrested women released later on and it was decided to close the criminal cases against them yet the arrested attracted widespread public protest.
7. It was felt that the police has misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression.
8. In 2013, the central Government came with an advice under which no person can be arrested without the police having prior approval of inspector general of police or any other senior officials to him/her.
9. The writ petition has been filed in Public Interest under Article 32 of Constitution of India by Petitioner seeking to declare Section 66A, Section 69 and Section 79 of the IT Act, 2000.
10. In this case, the petitioner has raised a large number of points as to the constitutionality of section 66A. According to them, first and foremost section 66A infringes the fundamental right of right to speech and expression and it is not saved by any of the subjects mentioned under Section 19(2) of the Constitution of India. It was also contempted that this section is creating a huge vagueness and hence giving arbitrary powers to the authorities.
11. Large number of people have already been suffered from the misuse of this section.
12. The supreme Court called the entire petition related to the constitutional validity of information technology act or any section within it under single PIL case known as “Shreya Singhal v. Union of India”.
Issues Raised
1. Constitutional validity of Section 66-A, 69-A and 79 was challenged.
2. Whether Section 66A is curtailing Freedom of speech and expression.
3. Whether Section 66A is saved under Section 19(2).
Arguments
Arguments by the Petitioner
1. Section 66A takes away the Freedom of Speech and Expression guaranteed under Article 19(1)(a) and is not saved by the reasonable restrictions mentioned under Article 9(2).
2. That causing of annoyance, inconvenience etc. are outside the scope of Article 19(2).
3. Section 66A seeks to create an offence but have infirmity and vagueness as it does not clearly defines the terminology used are subjective in nature and are left open at the desire and will of the law enforcement agencies to interpret it. The limitation is not present.
4. Article 14 violates as there is no intelligible differentia as to why only means of communication is targeted by this section. Thus, self- descrimination. Therefore, it is a violation of Article 14, 21 of the constitution.
5. Petitioner also contended that this section has left the room open for the administrators to interpret this section in an arbitrary manner.
Arguments by the Respondent
1. Legislature is in the best position to address the requirements of the people and the courts will only step in when a law is clearly violative of Part Ⅲ and there is presumptions in favour of constitutionality of the law in question.
2. Court would so construe a law to make it functional and in doing so can read into or read down the provisions of law.
3. Only probability of abuse cannot be a justification to declare of abuse cannot be a justification or declare a provision invalid.
4. Vagueness is not a ground to declare a statue unconditional if it is otherwise qualified and non arbitrary.
Judgment
The Supreme Court agree with the petitioner that none of the grounds contained in Section 19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of the IT Act. “Any law seeking to impose a restriction on freedom of speech can only pass muster.”
The Supreme Court agreed with the petitioner that none of the grounds contained in Section 19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of the IT Act. They believed that the term offensive in Section 66A of IT Act is very vague. They stated that what might offensive to someone may not be for someone else. Therefore, it is very subjective in nature.
Two things will be noticed. The first is that the definition is an inclusive one. Second, the definition does not refer to what the content of information can be. In fact, it refers only to the medium through which such information is disseminated. It is clear, therefore, that the Petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in-such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know-the market place of ideas-which the internet provides to persons of all kinds is what attracts Section 66A. That the information sent has to be annoying, inconvenient, grossly offensive etc., also shows that no distinction is made between mere discussion or advocacy of a 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. The Petitioners are right in saying that Section 66A in creating an offence against persons who use the internet and annoy or cause inconvenience to others very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66A.
The Court referred various landmark judgments on freedom of speech and expression. For example- Romesh Thapper v. State of Madras, the court stated that freedom of speech lay at the foundation of all democratic organizations.
In Khushboo v. Kanniamal & Anr., this court stated Freedom of Speecha and Expression not absolute was necessary as we need to tolerate unpopular views. The right requires free flow of opinion and ideas.
In Bennett Coleman & Co. V. Union of India & Ors., the court held that Freedom of Speech and of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.
This Court has laid down what “reasonable restrictions” means in several cases. In Chintaman Rao v. The State of Madhya Pradesh, this Court said: The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality.
Article 14
We have already held that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional Under Article 19(1)(a) and not saved by Article 19(2). We have also held that the wider range of circulation over the internet cannot restrict the content of the right Under Article 19(1)(a) nor can it justify its denial. However, when we come to discrimination Under Article 14, we are unable to agree with counsel for the Petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world. If the Petitioners were right, this Article 14 argument would apply equally to all other offences created by the Information Technology Act which are not the subject matter of challenge in these petitions. We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail.
Rule of Severability
In this case the rule of severability was applied. With this application, only Section 66A was held to be unconstitutional and not the whole act. This section was separated from the whole act and hence held to be unconstitutional.
Held
- It was held that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that it 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 grounds of over breadth.
- Section 66A of the Information technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).
- Section 69A of IT Act states about blocking for access of information of information by public are held as constitutionally valid.
Significance of the Judgment
- In this judgment, the hon’ble court has discussed the section 66A, 69A and some other Sections of Information Technology Act and Article 14, 21 and 19(1)(a) of the constitution.
- In this Judgment, Court has explained the significance of Freedom of Speech and Expression and Reasonable Restrictions.
- The Court has also stated about the arbitrary power on the administration. While explaining it, Court stated that open room cannot be provided to the administrative authorities otherwise it will lead to injustice and misuse of power.
- The Hon’ble Court has also stated that the statue or provisions having vague meaning shall be struck down immediately because it will mislead the administrators and harm the people of our society. The statues may have some loopholes but it must not be vague or with uncertain meaning.
- The Hon’ble Court also explained that the legislation cannot put any restrictions on people for expressing their Freedom of Speech and Expression by taking the shield of Article 19(2) of the Constitution.
- The Hon’ble Court also discussed the concept of balancing the strike between “Hate Speech” and “Free Speech”. The Court stated that Hate Speech is basically when people pass hate comments on religion, race, caste, sex, place, birth etc. And then the dispute arises between freedom of speech and expression and reasonable restrictions. Therefore, court stated that it is important to harmonize the situation by checking the gravity and contend of the statement or comment. Hate Speech is very subjective matter, so it becomes important to protect freedom as well as to protect the feelings of the people. 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.
- The Court has also discussed the “Rule of Severability”. In this present case three Sections of the IT Act, 2006 were challenged but the Court has applied this rule. By applying this rule, the court stated that just because one Section is vague or uncertain in its language doesn’t make the whole legislation as vague or arbitrary. In such cases we should apply the rule of severability and struck down the provision only which is vague or uncertain and not anything else. The whole legislation or other provisions deserve not to be struck down.
Case comment
Protection of Freedom of Speech and Expression is very important to maintain the integrity of the democracy. Freedom of Speech and Expression is the basic pillar of the democracy. India is one of the best example of democracy, So it becomes more even important to protect this right. But reasonable restriction has to be there to control freedom of speech and expression. Therefore, reasonable restriction on freedom of speech and expression ahs to be there even in Cyber Space, so that people don’t misuse their rights.
In this present case although it was very unfair and unreasonable arrest, so such action is justified. But there are some instances when people do misuse the power of Freedom of Speech and Expression and do comment on integrity of our nation or on various other important matters. Reasonable restrictions should be there to control such actions. Cyber space is a platform through with people are more connected and influenced. So, if someone states any comment on Cyber Space without thinking about the consequences, it affects the huge part of the society. There are many influential people like stars, sportsman, singers, politians etc, they do speak on such platforms about many topic without thinking the consequences of that on people. Such comments may not fall within Section 19(2) of the constitution but these comments affect our society very badly. Therefore, there are other subject matters which don’t fall within the ambit of Article 19(2) but then also on these topics also reasonable restriction has to be there.
According to me some more things should be included in the ambit of Article 19(2) of the Constitution. At least people should be cautious to speak lame things about integrity of our country or integrity of our force. All those soldiers, who sacrifices their lives for the protection of our nation but even people do speak bad words about them which discourages the feelings of the soldiers. Therefore, such things should be strictly restricted.
Although I agree with this judgment because the impugned section was very vague and arbitrary in nature. By taking it’s shield, police or administrators were arresting innocent people, so it must struck down. Just by commenting on something, no one can be arrested, this is a violation of basic fundamental rights given by the constitution.
Edited by Shuvneek Hayer
Quality check – Ankita Jha
Approved & Published – Sakshi Raje
Reference:
[1] Reno v. ACLU, 117 S. Ct. 2329 (1997).
[2] Abrams v. United States, 250 US 616;
