Analysis of Shreya Singhal Case with respect to recent developments
On March 24, 2015, the Supreme Court in Shreya Singhal versus Union of India[1] famously struck down Section 66A (punishment for sending offensive messages through communication service, etc.) of the Information Technology Act, 2000 (‘IT Act’) as unconstitutional for its disproportionate impact on the right to free speech under Article 19(1)(a) of the Constitution. This provision penalized “grossly offensive”, “annoying”, “inconvenient” and “insulting” speech online, and several arrests were made under it targeting political opposition. In this assignment, I will do a critical analysis and also point out the impact of this judgment as of November, 2022. I will also explore the instances wherein this judgment of Supreme Court was flagrantly violated and First Information Report were being filed throughout the country by invoking Section 66A which was struck down by the Supreme Court in Shreya Singhal case.
Police arrested two women for posting allegedly offensive and objectionable comments on Facebook about the propriety of shutting down the city of Mumbai after the death of a political leader. The police made the arrests under Section 66A of the Information Technology Act of 2000 (ITA), which 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.
Although the police later released the women and dismissed their prosecution, the incident invoked substantial media attention and criticism. The women then filed a petition, challenging the constitutional validity of Section 66A on the ground that it violates the right to freedom of expression.
The Supreme Court of India initially issued an interim measure in Singhal v. Union of India[2], prohibiting any arrest pursuant to Section 66A unless such arrest is approved by senior police officers. In the case in hand, the Court addressed the constitutionality of the provision.
Petitioners through batch of writ petitions filed under Article 32 of the Constitution of India raised very important and far-reaching questions relatable primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The immediate cause for concern in these petitions was Section 66A of the Information Technology Act of 2000. This Section was not in the Act as originally enacted, but came into force by virtue of an Amendment Act of 2009 with effect from 27.10.2009. This Section it is set out hereinbelow:
“66-A. Punishment for sending offensive messages through communication service, etc. —Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation.— For the purposes of this section, terms “electronic mail” and “electronic mail message” means 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 any other electronic record, which may be transmitted with the message.”[3]
A related challenge was also made to Section 69A introduced by the same amendment which reads as follows:-
“69-A. Power to issue directions for blocking for public access of any information through any computer resource.—(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.”
The Statement of Objects and Reasons appended to the Bill which introduced the Amendment Act stated in paragraph 3 that:
“3. A rapid increase in the use of computer and 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 intermediary, e-commerce frauds like personation commonly known as Phishing, identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the code of Criminal Procedure to prevent such crimes.”
The petitioners contended that the very basis of Section 66A – that it has given rise to new forms of crimes – is incorrect, and that Sections 66B to 67C and various Sections of the Indian Penal Code (which will be referred to hereinafter) are good enough to deal with all these crimes.
The petitioners’ various counsel 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 to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2). According to them, the causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will are all outside the purview of Article 19(2). Further, in creating an offence, Section 66A suffers from the vice of vagueness because unlike the offence created by Section 66 of the same Act, none of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said Section. In fact, a large number of innocent persons have been booked and many instances have been given in the form of a note to the Court. The enforcement of the said Section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the said Section has a chilling effect on the freedom of speech and expression. Also, the right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in terms of various points of view that could be viewed over the internet.
The petitioners also contend that their rights under Articles 14 and 21 are breached inasmuch there is 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 particular medium of communication is itself a discriminatory object and would fall foul of Article 14 in any case.
In reply, Mr. Tushar Mehta, learned Additional Solicitor General defended the constitutionality of Section 66A. He argued that the legislature is in the best position to understand and appreciate the needs of the people. The Court will, therefore, interfere with the legislative process only when a statute is clearly violative of the rights conferred on the citizen under Part-III of the Constitution. There is a presumption in favour of the constitutionality of an enactment. Further, the Court would so construe a statute to make it workable and in doing so can read into it or read down the provisions that are impugned. The Constitution does not impose impossible standards of determining validity. Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may have been used in Section 66A to deal with novel methods of disturbing other people’s rights by using the internet as a tool to do so. Further, vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary. He cited a large number of judgments before the court from this Court and from overseas to buttress his submissions.
For the analysis of this case certain constitutional provisions are needs to be written here. They are as under :
Freedom of Speech and Expression
Article 19(1)(a) of the Constitution of India states as follows:
“Article 19. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right— (a) to freedom of speech and expression;”
Article 19(2) states: “Article 19. Protection of certain rights regarding freedom of speech, etc.—(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It cannot be over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.
Various judgments of the apex Court have referred to the importance of freedom of speech and expression both from the point of view of the liberty of the individual and from the point of view of our democratic form of government. For example, in the early case of Romesh Thappar v. State of Madras[4], the apex Court stated that freedom of speech lay at the foundation of all democratic organizations. In Sakal Papers (P) Ltd. & Ors. v. Union of India[5], a Constitution Bench of the apex Court said 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. In a separate concurring judgment Beg,J. said, in Bennett Coleman & Co. & Ors. v. Union of India & Ors.[6], that the 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. Equally, in S. Khushboo v. Kanniamal & Anr[7]., the apex Court stated, in paragraph 45 that the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance, the culture of open dialogue is generally of great societal importance.
This last judgment is important in that it refers to the “market place of ideas” concept that has permeated American Law. This was put in the felicitous words of Justice Holmes in his famous dissent in Abrams v. United States[8], thus:
“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this 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 cause 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.3 It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc. Why it is important to have these three concepts in mind is because most of the arguments of both petitioners and respondents tended to veer around the expression “public order”.
The contention of the petitioner was that Section 66A did not act as a remedy or a safeguard against any new crime that emerged as a result of information technology. The petitioners interpreted the usability of Section 66A in light of the Statement of Objects and Reasons when Sections 66B to 67C are good enough to deal with the crimes covered under Section 66A.
However, the Supreme Court held that declaring the section unconstitutional merely on ground of it being violative or opposed to the Statement of Objects and Reasons is beyond the scope of Judicial Scrutiny and Activism as judiciary can declare a law constitutional only if it violates the basic structure of the Constitution[9] and hence, this would not be a valid ground for contending validity of a law in a court.
The legislature is considered to be in the best position to assess and represent the interests of the people and there is a presumption in favour of constitutionality of provision. The constitution does not impose impossible standards of determining validity. Mere possibility of abuse of a provision cannot be a ground of invalidation of such provision. Further vagueness is also not a ground to invalidate a law. Hence, the two mentioned grounds have not been accepted as grounds to invalidate Section 66A.
Freedom of Speech and Expression is one of the most important rights which guarantees voice of the people in a democracy. It is fundamental to the existence of a democracy and is in consonance with the ideals of freedom. There are three main concepts fundamental to the Freedom of Speech and Expression namely:
1. Discussion
2. Advocacy
3. Incitement
Mere discussion or advocacy does not invite limitations of Article 19(1). It is only when such discussion or advocacy reaches the point of incitement does it attract Article 19(2). At this stage, the state, as per the powers vested in it by Article 19(2) may curtail this freedom. This right has been expanding largely in the recent past across the world making it a basic human right and almost, an absolute one till such right reaches the point of incitement. The features of Article 19 as enlisted in the 101st Report of The Law Commission of India.[10]
1. Article 19 is confined to citizens and foreigners cannot claim under this right.
2. A corporate body cannot claim citizenship and therefore cannot claim any right under Article 19.
This right has been construed in a welfare manner beneficial to the citizens. In the case of State of Uttar Pradesh v Raj Narain[11] , the Supreme Court laid down that Article 19(1) not only guarantees freedom of speech but also ensures and comprehends right of citizen to know, right to receive information regarding matters of public concern. This right has been construed and given such importance that it has been interpreted to include the Right to fly the National Flag freely with respect and dignity within its huge scope and ambit subject to the provisions of the The Emblems and Names Act and Prevention of Insults to National Honour Act, 1971 which regulate the use of the National Flag.[12]
Section 66A has further been challenged on the ground that it casts the net far wide and includes all information on the internet. Information is defined by Section 2(v) as including any data, message, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche.
The definition is an inclusive definition. It includes all type of data and covers all
· types into its ambit thus not leaving any part of the internet. This definition does not refer to what the content can be, and only refers to mode of
· such content. Thus it includes all information under it.
Considering the observations of Justice Jackson in the case of American Communications Association v. Douds[13]
“Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.”
Section 66A 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.
ARTICLE 19(2) Reasonable restrictions may be placed by the Government when such use of the freedom of speech and expression under Article 19(1) crosses the point of advocacy of an idea, however unpopular or contrary to public opinion it may be. It is noteworthy to observe the US Supreme Court Judgement in the case of Chaplinsky v New Hampshire[14]
“Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances.
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words– those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.”
It has been defined that penalizing some classes of overstepping of the freedom of speech and expression is found to be no barrier or not a constitutional limitation as being violative of the Freedom of Speech and Expression. Broadly, the following have been categorized as classes of wrongs which do not have constitutional protection of freedom of speech including but not limited to libellous, obscene, insulting or instigating words or expressions.
The differences between the Right to Freedom of Speech and Expression in USA (1st Amendment10) and the Indian Law are
A. The US law does not specifically put a barrier on the legislature to make a law which is oppressive in regard to the fact that they supress or limit the Fundamental Rights or specifically, the Freedom of Speech.
B. The US law has considered „expression‟ part of freedom of speech while the Supreme Court has considered „press‟ as part of Article 19(1) (a).
C. The starking difference is with regard to the aspects of a reasonable restriction. A reasonable restriction is acceptable in India if such restriction falls under the eight categories mentioned under Article 19(2) while in USA, such restriction may be reasonable if it is a compelling necessity to achieve an important governmental or societal goal. However, „public interest’ per se does not hold muster in the Indian scenario of the restriction on Article 19.
The understanding of the freedom of speech and expression and the interpretation of the US law into the Indian scenario may be understood with the help of the Supreme Court‟s judgement in the case of Indian Express Newspapers (Bombay) v.Union of India[15], in which the court ruled that while examining the constitutionality of a law in India, solely considering the US law with regard to freedom of speech and expression would not suffice. But in order to understand the principles, they can be used as a highly persuasive value. The pattern of the limitations which are placed are different from those which are acceptable in the US law as in India, the limitations have to fall under the eight heads mentioned under Article 19(2).
Section 66A has been challenged on the ground that it places a limitation on a very wide note and not in particular falling under any of the heads mentioned under Article 19(2). The Supreme Court laid down that the heads cannot be easily expanded because it would be too wide to construe the term reasonable and it has to be limited in its scope. In the case of Sakal Papers v. Union of India11, it was laid down that it may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in Clause (6) of Article 19.
Further, in the case of The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia[16], it was laid down that a restriction made in the interest of public order must also have reasonable relation to the object to be achieved i.e. public order.
Defamation:
Defamation is defined in Section 499 of IPC and an essential element of defamation is injury to reputation. Section 66A does not concern itself with reputation. The section only talks of something grossly offensive and not about defamation. Therefore it is clear that the section does not aim to cover defamatory statements at all.
INCITEMENT TO AN OFFENCE:
Section 66A does not specifically discuss incitement because a fair comment till the level of discussion or advocacy does not amount to incitement to an offence. The information may not incite anyone per se; it might as well be till the point of discussion or advocacy. As Section 66A severely curtails information that may be sent through the internet and does not mention whether the information be opposed to the eight subjects under Article 19(2) thus making it ultra-vires the constitution or unconstitutional.
DECENCY OR MORALITY
The test laid down in Hicklin’s case[17] was approved by Supreme Court in the case of Ranjit Udeshi v State of Maharashtra[18]. The test was „Whether the tendency of the matter charged as being obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall?‟ However, later the SC laid down the standard in Director General, Directorate General of Doordarshan v. Anand Patwardhan[19] that a material would be treated as obscene if the average person applying contemporary standards would find that subject matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary artistic, political, educational or scientific value.
PUBLIC ORDER
It is not open to the legislature of India to curtain or restrict fundamental rights in the general public interest. That is a blanket term which is used and can be very widely construed. The question in the case of Sakal Papers v. Union of India was whether the legislature can limit the Right to Freedom of Speech under Article 19 with the object of placing restrictions on business activities of a person. The State claimed under Article 19(2) reasonable restrictions may be placed while the court held that such restrictions may be applicable only when it is in the interest of security, friendly relations with foreign state, public order, decency or morality, contempt of court, defamation or incitement to an offence (The pigeon holes).
The words „public order’ was added into the Constitution of India by way of the 1st Amendment Act following a series of judgements supporting the same. In the case of Dr. Ram Monohar Lohiya v. State of Bihar[20], the court held that „public order‟ was said to comprehend disorders of less gravity than „security of state‟. The Supreme Court in the case further laid down the following interpretation of the words „public order‟.
The test was formulated by these judgements, whether a particular act leads to the disturbance of the current life of the community or does it merely affect an individual leaving the tranquillity of society undisturbed? Secondly, it must need to have a clear and present danger or a tendency to effect the society‟s peace. In the case of Schenck v. United States[21], the clear and present danger test was laid down. It was to be decided whether such act would produce an imminent threat or danger and if it did, then it can be said to be the vanishing point of the Right to Expression. Further in the case of Abrams v. United States18, the clear and imminent danger test was laid down and two elements which were to proven were identified to be a question of proximity and degree. Further, adapting the same in Indian Law, the Supreme Court in the case of S. Rangarajan v. P. Jagjivan[22] laid down that the commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the
expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.
Section 66A clearly does not pass this test as it has no element or tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.
ARTICLE 14
The petitioners further contended that the section distinguished between medium of print, broadcast, real live speech as opposed to speech on the internet and therefore new categories of criminal offences cannot be made on this ground. The defamation law and Section 66A is further distinguished as under:
| Defamation Law | Section 66A |
| Recognizes all modes | Recognizes modes using a computer, computer network or computer resource or communication device |
| Criminal Defamation under Section 499 of IPC has a maximum punishment of about two years. | Online Defamation under Section 66A of IT Act has a maximum punishment of three years under IT Act |
| Defamation is non-cognizable. | Offence under Section 66A is cognizable. |
The court finally held that there was an intelligible differentia between the punishments and types offences categorized as above in the following manner.
A. The reach and scope of the virtual world is much higher than the real world as information progresses faster from person to person causing more injury.
B. Any person has access to the virtual world and social networks without a fee.
Thus the Section 66A does not violate Article 14.
VALIDITY OF SECTION 66A
The validity of this law is a supportive agent to the primarily unconstitutional elements and is merely supporting factors that fuel the invalidation of the law. There are the elements which support that the law is loosely framed and has loopholes that makes it not a „good law‟.
CONSTRUCTION AND VAGUENESS
The language used in Section 66A is very vague. The petitioners contended that neither the authorities nor the accused would be completely in tune with the nature of the offence committed under this section. The vagueness of this section makes the law abider really cautious as to which behaviour observed by him would be over-stepping the limits set by the law and which behaviour would be punishable. Thus such vagueness must not be encouraged. The United States Supreme Court in the case of Winters v. People of State of New York[23] held that:
“The impossibility of defining the precise line between permissible uncertainty in statutes caused by describing crimes by words well understood through long use in the criminal lawobscene, lewd, lascivious, filthy, indecent or disgusting–and the unconstitutional vagueness that leaves a person uncertain as to the kind of prohibited conduct–massing stories to incite crime–has resulted in three arguments of this case in this Court.”
Thus it is important that penal statutes be construed in a strict manner and be made in such a manner as to cause least amount of ambiguity i.e. the legislature should aim at enforcing the penal statutes strictly or in the same manner as they were intended to be enforced and should be constructed in such a manner so as to ensure least scope for judicial interpretation.
However, as established in the cases of State of MP v. Kedia Leather & Liquor Limited[24] and State of Karnataka v. Appa Balu Ingale[25], the Supreme Court and other courts always held that there was no constitutional challenge on the ground of vagueness. Thus, there is no constitutional challenge or a law cannot be repealed by the courts on ground of being unconstitutional merely by reason of its vagueness or misuse of the law.
Information which is more of an opinion or assertion of a view which is unpleasant or unpopular to a major part of the society may fall under the wide net cast by Section 66A. This causes chilling speech. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. In a conservative society, a person who posts using social media about the emancipation of women or abolition of case system would face criticism and would fall under Section 66A. It casts the net so wide that every expression of opinion which hurts another or causes annoyance to another falls under it. 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.
Chilling Effect was recognized in Indian law in the case of R. Rajagopal v. State of Tamil Nadu[26]. The principle of Sullivan was tested in this case and the court laid down as follows “While these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which under laid them are no less valid in this country. What has been described as ‘the chilling effect’ induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available.”
Further the essence of the law and the chilling effect was upheld in the case of S. Khushboo v. Kanniamal[27], the court held that 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 that has chilling effects on the “freedom of speech and expression”.
The court further held that chilling effect of defamation is inclusive of bypassing or reaching beyond exceptions in Article 19(2) however the effect must be proximate to the causes and not remote in nature to the exceptions. Summing up, the court held that Section 66A is unconstitutional on the grounds that it takes with it protected and innocent speech and therefore has a chilling effect on free speech and would therefore be struck down on over breadth.
WIDE MISUSE OF THE LAW
Section 66A is capable of being abused by the persons who administered it is not a ground to test its validity if it is otherwise valid. In the case of The Collector of Customs, Madras v. Nathella Sampathu Chetty and Anr.[28], the court held that following numerous judgements, an invalidity petition of a law cannot be brought to a court only on the ground of it being capable of misuse or it being misused. A law which would otherwise be valid cannot be invalidated on the ground that it has wide scope for misuse. The converse must also be followed. A law which would be otherwise be invalid cannot be validated on the ground that it would be reasonably used or fairly used. In the same manner, if Section 66A has a wide scope for misuse, it is not a ground to invalidate the section. Further, an assurance that it would work in a reasonable manner is not a ground to validate the section which is otherwise invalid due to presence of unconstitutional elements. Therefore, it was held that Section 66A has to be judged on its own merits and not on the basis of its usability or reasonableness of its application.
SEVERABILITY
Section 66A purports the existence of reasonable restrictions on the Right to Freedom of Speech and Expression under Article 19(1)(a) and includes elements which are both saved and not saved by the exceptions of reasonability covered under the aegis of Article 19(2). It must therefore be held that in the case of K.A. Abbas v. Union of India[29], that a possibility of a law being used in a manner so as to be unconstitutional or ultra vires the ambit and scope of the application of law should not be overlooked or neglected. In this case, the Section 66A being applied for purposes other than those sanctioned by the Constitution cannot be ruled out or overlooked. Therefore the whole of Section 66A has to be declared unconstitutional. In the case of Ramesh Thapar v. State of Madras[30] , it was held that the section in question had a much wider range and included much more than Article 19(2) and since it was not possible to split up the section and hence failed the protection offered by Article 19(2). Applying the same in case of Section 66A, it does not fall within any of the subject matters contained in Article 19(2) and the possibility of it being applied for purposes outside those subject matters is clear. Therefore, the court held that no part of the section is severable and hence, the whole section is unconstitutional.
PROCEDURAL UNREASONABLENESS
The appellants contended that Section 66A further had an amount of unreasonableness in dealing with the procedures established by law. The court held that procedural unreasonableness was present in the law. Features or elements which were poised as safeguards in the Criminal Procedure Code were absent in the IT Act‟s Section 66A which caused a lot of unreasonableness in the manner in which the complaints relating to the offence under Section 66A were dealt with.
The notable provisions under the Cr.P.C which were missing as part of the safeguards against the offence under Section 66A are Section 95 and 96. The sections deal with the capacity of a person interested in a particular article or work which is charged under defamation to file a petition under Section 96 within two months to apply to the High Court to set aside the declaration upon the High Court shall constitute a bench for hearing the matter.
Thus Sections 95 and 96 reveal a certain degree of sensitiveness towards freedom of speech while such safeguards are absent for an offence which casts the net so wide under the offence under Section 66A of the Information Technology Act, 2000. However, the rationale here is that the section had already been declared unconstitutional on grounds of violating Article 19(1) and not saved by Article 19(2) and hence, the court found no merit in analysing the procedural unreasonableness of the section in question.
Constitutional scholar Gautam Bhatia has stated that this judgment lays the constitutional, legal and philosophical terrain to do all of that. It creates the ground upon which we can erect a progressive, liberal understanding of free speech, based upon a vision of individuals as responsible and autonomous beings, who do not need “protection” from moral corruption, and who do not need a paternalistic State or court telling them what they need to read, see or here. Individuals, one and all, worthy of dignity and equal concern and respect. This is the first judgment since 1960 that unequivocally affirms every one of those propositions. It is the judgment that has given Indian free speech law its soul back.[31]
In his book ‘The Transformative Constitution: A Radical Biography in Nine Acts’, after lauding Shreya Singhal for proscribing only speech that constitutes ‘incitement to violence’, Bhatia poses a fundamental question – how can the jurisprudence evolved in Shreya Singhal co-exist with laws like Section 124A (sedition) of the Indian Penal Code (‘IPC’) and the Unlawful Activities (Prevention) Act (‘UAPA’), which criminalize mere questioning of the sovereignty of India and being a member of particular organizations? He answers this question by observing that “when it comes to exceptional situations, the Court has honoured its civil rights jurisprudence far more in breach than in observance”. The exceptional situations or ‘states of exception’ that he refers to are Emergency, preventive detention, and anti-terrorism laws. He then goes on to identify four features of the Indian judiciary’s approach to free speech claims in ‘states of exception’. They are: (i) executive supremacy, (ii) denial of remedies, (iii) jurisdiction of suspicion, and (iv) salus populi suprema lex (welfare of the people is the supreme law).
Since the verdict of this case, it has been used widely by other High Courts in interpreting free speech jurisprudence. On 13th August 2021, a division bench of the Bombay High Court had granted bail to one Iqbal Ahmed, who had been charged under various sections of the Unlawful Activities Prevention Act [“UAPA”]. It had relied on this case. But in appeal, Supreme Court held that the bailcan be granted without relying on this decisions. But this observation of Supreme Court has drew several criticism.
PUCL approached the Court[32] with the assistance of Internet Freedom Foundation, raising the following issues :
a) Whether the Judgment of Shreya Singhal v. UOI[33] has been complied with?
b) Whether the steps taken by the Union of India are adequate?
c) What steps need to be taken for effective implementation of the Judgment in Shreya Singhal to avoid wrongful investigation and prosecution?
d) What steps should be taken to ensure that the Judgments of the Court passed in important cases touching protection of legal and constitutional rights of the people, are effectively implemented?
As per the application, the steps taken by the Ministry of Electronics and Information Technology (MeitY) towards ensuring effective implementation of Shreya Singhal v. Union of India were far from adequate. It stated that the Union of India, instead of implementing the judgement, shirked its responsibility by pleading that the responsibility of implementation lied with the States as well law enforcement agencies.
Accordingly, the application prayed the court to direct Union of India to collect details of the cases registered by the Police/Law Enforcement Agencies under Section 66A of the IT Act since the pronouncement of the judgment in Shreya Singhal and in matters where the case was at the stage of investigation, direct the Director General of Police in the States and the Administrators/Lieutenant Governors in the cases of Union Territories to drop further investigation under Section 66A.
It further prayed for the Chief Justices of all the High Courts to issue advisories to all the subordinate courts (both Sessions Courts and Magistrate Courts) to drop all charges/trial under Section 66A and discharge the accused in such cases and all the High Courts (through Registrar Generals) to communicate to all the District Courts and Magistrates that forthwith there should be no cognizance taken under the repealed Section 66A of the IT Act.
It also prayed for the DGPs of all the States/Administrators of all the UTs to initiate disciplinary action against the Police/Law Enforcement Agencies that were found to be registering cases under the repealed Section 66A of the IT Act and allow the High Courts to initiate suo motu contempt proceedings against those responsible for registering a case under Section 66A or for investigating it or for prosecuting it in spite of being informed that Section 66A has been struck down.
Advocate Zoheb Hussain, appearing for the Union of India placed an All-India Status report with regards complaints under Section 66A. The bench noted that the information provided by Adv. Hussain suggested that despite the issue regarding the validity of Section 66A being dealt with in Shreya Singhal v. Union of India, a number of crimes and criminal proceedings still reflected on the provision of Section 66A of the 2000 Act and citizens were still facing prosecution under the same. The bench noted the gravity of the matter and stated that– “Such proceedings are directly infringing directions under Shreya Singhal.”
Accordingly, the following directions were passed by the bench:
1. It needs no reiteration that Section 66A is found to be in violation of the Constitution and as such no citizen can be prosecuted for violation of alleged offences under Section 66A of the IT Act, 2000.
2. In all cases where citizens are facing prosecution for violations of Section 66A, the reference and reliance upon 66A from all crimes shall stand deleted.
3. We direct all Director Generals of police, Home Secretaries and competent officers in States and Union Territories to direct the entire police force not to register any complaint with respect to violation of Section 66A. This direction shall apply only with reference to Section 66A. If the crime has other facets, where other offences are also alleged, those shall not be deleted.
4. Whenever any publication, whether government, semi government or private, about IT Act is published and Section 66A is quoted, readers must be adequately informed that the provisions of 66A have been pronounced upon by this court as to be violative of Constitution. With these directions, the application filed by the PUCL was disposed of.[34]
From the above discussion, it can be gleaned that the apex court confirmed that section 66A of the IT Act, 2000 violates the freedom of speech and expression under Article 19(1)(a), and does not fall within the ambit of reasonable restrictions permitted by Article 19(2).The judgment held that Section 66A was vague and over-broad, and did not specifically define those instances of speech that it sought to curb. A statement made online could be construed as bland by one person, but annoying, offensive, menacing, inconvenient, insulting, ill-willed or hateful by another. As a result, the police had wide discretion over whether a message would fall under the contours of section 66A or not, and the offence operated on the whims of the police.Crucially, the Court also discussed the ‘chilling effect’ that vague and excessively broad statutory language can have on citizens’ speech. This has deleterious ramifications for the health of a democracy, which is one of the reasons the provision was struck down as being violative of Article 19(1)(a).
Further, the Court ruled that the ‘public order’ restriction under Article 19(2) would not apply to cases of ‘discussion’ or even ‘advocacy’ of unpopular causes or unlawful acts, but only to ‘incitement’, specifically incitement which has a proximate connection to public disorder. Finally, the Court held that section 66A was unnecessary since Sections 66B to 67C, and various sections of the Indian Penal Code are sufficient to deal with the various offences associated with publishing offensive, false, or threatening information. Even after the pronouncement of the judgement in 2015, FIRs were being filed. It was only in October 2022 that Supreme court in PUCL case gave clear directions to the Union of India and other State governments to ensure that Shreya Singhal judgment is followed in its spirit. It won’t be wrong to argue that Shreya Singhal case gave fresh breath to Indian free speech jurisprudence. It only remains to be seen how this jurisprudence is further utilized for a better democratic republic.
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[1] (2015) 5 SCC 1
[2] (2013) 12 S.C.C. 73
[3] The genealogy of this Section may be traced back to Section 10(2)(a) of the U.K. Post Office (Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character. This Section was substantially reproduced by Section 66 of the UK Post Office Act, 1953 as follows:
66. Prohibition of sending offensive or false telephone messages or false telegrams, etc. If any person— (a)sends any message by telephone which is grossly offensive or of an indecent, obscene or menacing character ; (b)sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience or needless anxiety to any other person ; or (c)persistently makes telephone calls without reasonable cause and for any such purpose as aforesaid, he shall be liable on summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both. This Section in turn was replaced by Section 49 of the British Telecommunication Act, 1981 and Section 43 of the British Telecommunication Act, 1984. In its present form in the UK, it is Section 127 of the Telecommunication Act, 2003 which is relevant and which is as follows:- 127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he –
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) cause any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he-
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c.42)).
[4] [1950] S.C.R. 594 at 602
[5] [1962] 3 S.C.R. 842 at 866
[6] [1973] 2 S.C.R. 757 at 829
[7] (2010) 5 SCC 600
[8] 250 US 616 (1919)
[9] Keshavananda Bharti v. State of Kerala
[10] Law Commission of India: Report 101
[11] AIR 1975 SC 865
[12] Union of India v Naveen Jindal (2004) 2 SCC476
[13] 94 L. Ed. 925
[14] MANU/USSC/0058/1942
[15] (1985) 2 SCR 287
[16] (1960) 2 S.C.R. 821
[17] Regina v. Hicklin L.R. 2 Q.B. 360 (1868)
[18] (1965) 1 S.C.R. 65
[19] 2006 (8) SCC 433
[20] (1966) 1 S.C.R. 709
[21] 63 L. Ed. 470
[22] (1989) 2 SCC 574
[23] 92 L. Ed. 840
[24] 2003 7 SCC 389
[25] 1995 Supp. (4) SCC 469
[26] (1994) 6 SCC 632
[27] (2010) 5 SCC 600
[28] (1962) 3 S.C.R. 786
[29] (1971) 2 S.C.R. 446
[30] (1950) SCR 594
[31] https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-free-speech-jurisprudence-found-its-soul-again/
[32] MA 901/2021 in W.P.(Crl.) No. 199/2013
[33] (2015) 5 SCC 1
[34] 2022 LiveLaw (SC) 846
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