CASE COMMENTARY : Shreya Singhal v. Union of India
4
13
0
AUTHOR: APARNA DIXIT
Introduction
“The freedom of speech is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process. Freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It is the mother of all liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters.” - Dr B.S. Chauhan & Swantanter Kumar JJ.
The Hon’ble Supreme Court’s judgment in the case of Shreya Singhal v. Union of India is a landmark judgment that has reiterated the intent of the constituent assembly, dictating the supremacy of freedom of speech and expression as provided under Article 19 of the Constitution. The judgment of the Hon’ble Court has added another dimension to Article 19. It has far-reaching implications for how millions of Indian Citizens access social networking websites. In a nutshell, the Supreme Court has invalidated section 66A of the Information Technology Act, 2000 [Hereinafter referred to as “the I.T. Act, 2000”] thereby giving the citizens to share, comment and post anything according to their whims and fancies on the internet especially on social media, unless the act of a person does not constitute an offence under other sections of the I.T. Act, 2000 or any other law time being in force.
This is one of the celebrated judgments of the Hon’ble Apex Court delivered by R.F. Nariman & J. Chelamwswar JJ. In the backdrop of the instant case, challenging the validity of section-66A of the I.T. Act, 2000, lays innumerable matters of the arrest of ordinary citizens upon fair criticism of political leaders upon social media and their consequential harassment at the hands of police.
Facts of the Case
Mumbai police arrested two girls, Shaheen Dhada and Rinu Srinivasan, in 2012 for communicating their dismay at a bandh brought in the wake of ShivSena’s boss Bal Thackery's demise. The girls posted their remarks on Facebook. The arrested girls were discharged later on, and it was decided to drop the criminal cases against them. Yet, the arrests of them pulled in across the country protest. It was presumed that the police had abused their authority by invoking Section 66A at the same time. It is a breach of the fundamental right of speech and expression. The offence under section 66A of the IT act being cognisable, law enforcement agencies have the authority to arrest or investigate without warrants based on charges brought under the Information Technology Act. The outcome of this was many highly famous arrests of people throughout the country for posting their views and opinions, whereas the government called them ‘objectionable content', but more often, these content were dissenting political opinions. In January 2013, the central government had turned out with an advisory under which no person cannot be arrested without the police having the prior approval of the inspector general of police or any other senior official to him/her.
The instant case is a writ petition filed under Article 32 of the Constitution of India pleading that section 66A of the I.T. Act, 2000 is violative of Article 19 (1) (a) of the Constitution. The petition was filed to prevent the abuse and chaos caused by section 66A after the arrest of the two women arrested in Mumbai over their Facebook posts. The instant matter involves a series of writ petitions challenging the validity of section 66A and other sections of the I.T. Act, 2000. It is pertinent to observe that section 66A did not originally form part of the I.T. Act, 2000 and was inserted vide an amendment. The Statement of Objects and Reasons read as: “A rapid increase in the use of computer and the 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 an intermediary, e-commerce frauds like impersonation known as phishing, identity theft and offensive message through mass communication services. So, penal provisions are required to be induced in the Information Technology Act, 2000, Indian Penal Code, 1860, Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973.” In the light of the aforesaid object, section 66A prescribes punishment for three kinds of cyberlaw offences, namely,
Any information that is grossly offensive or of a menacing character;
Any information which known to be false, but the computer resource is persistently used to cause annoyance, inconvenience, danger, insult, hatred, criminal intimidation, etc., and
Any electronic mail or electronic message with the intent to annoy, inconvenience or mislead a person as to the origin of the message.
Legal Issue
A writ petition was filed in public interest under Article 32 of the Constitution of India by petitioner, seeking to declares Section 66A,69A and section 79 as unconstitutional on the fact that the phraseology used in Section 66A,69A and section 79 of the IT Act, 2000 is so broad and vague, at the same time incapable of being judged on objective standards, that it is susceptible to wanton abuse and hence falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution. Petitioner further argues that the terms, menacing, offensive, annoyance, inconvenience, obstruction, danger, and insult have not been defined in the General Clauses Act, IT Act or any other law, and so they are susceptible to wanton abuse. petitioner further urged that the provision sets out an unreasonable classification between citizens on one hand and, on the other hand, netizens, as the freedom generally guaranteed under Article 19(1)(a) to citizens, including general media, is now tamed as far as netizens are concerned. If netizens make comments that could be made generally by citizens, they can be arrested. This is how Article 14 is violated by this provision.
Court’s Decision
The Supreme Court perused the arguments from both sides, i.e., the Petitioners as well as the Respondents and delivered a unanimous judgment declaring section 66A of the I.T. Act, 2000, unconstitutional.
Section 66A is struck down in its entirety as being violative of Article 19 (1) (a) and not protected under Article 19(2).
Section 69A and IT (procedure & safeguard for blocking access of info by the public) rules are constitutionally valid.
Section 79 is valid subject to reading down of Section 79(3) (b).
Section 118(d) of the Kerala Police Act is struck down (public order).
Reasoning
The judgment has preserved and saved the freedom of speech and expression given to people under article19 (1) (a) of Indian Constitution and also restraining state from arbitrary apply of power in context to freedom mentioned under article 19 of the constitution, at the same time Given clear guidelines for further enacting law in relation to reasonable restriction on fundamental right and freedom given by Indian constitution But miss to implore the principle of transparency for rules to block the website. Needs some further interrogation and fine tuning in regard to viewers right as he/she must know why state is not allowing them to have certain information and that reason can be challenged by the viewers also However, the Apex Court has put a lot of faith in technical and complicated government process based on dicey understanding of the capabilities and capacities of the different parties involved. For example, the law regarding content-blocking procedure have been declared effective on the belief and presumption that the blocking of website rules (2009) gives a reasonable chance and opportunity to be heard and to challenge an unconstitutional blocking order. This is, many times, misleading. It presumes that the originator of content will be contacted and informed about the blocking of his/her content and a reasonable opportunity will be given to challenge the blocking of the content. Secondly, the assumption that the intermediary will give reason and defend the content before the concerned government body. Both assumptions are practically far off the mark. The very technical nature of the Internet, with its geographic spread and anonymity, makes it likely possible that the originator of the content may not be contacted, because of content originator may be in a foreign country or may lack the resources to argue and pursue his/her case. Intermediaries will not reasonably defend the content since they prefer to avoid spending resources on protecting third-party content. The cumulative impact of this is that the information available to access will continue to be affected by unreasonable government blocking orders.
The blocking procedure continues to be covered in secrecy by the application of Rule 16 of the Blocking of Access rules, which demands that confidentiality must maintained in case of any blocking orders. This rule was contested in the Shreya Singhal case but the Apex Court left this rule untouched. For originators of content and viewers to notice that their content has been ordered to be blocked by government or its agency, the hosting page must carry a notification of the order for blocking along with reasons.
Analysis of the Judgement
The Supreme Court’s unanimous judgment declared Section 66A of the I.T. Act, 2000 unconstitutional for violating Article 19(1)(a) and not being protected under Article 19(2). The judgment preserved the freedom of speech and expression and restrained arbitrary state power.
The Court reaffirmed that freedom of speech and expression is a fundamental right and any law restricting it must be narrowly tailored to serve a compelling state interest. The Court held that Section 66A was vague and overbroad. The terms used were open to varied interpretations, leading to arbitrary and discriminatory enforcement. The lack of clear definitions meant that people could not reasonably foresee what behavior was prohibited.
The Court acknowledged that the overbroad nature of Section 66A had a chilling effect on free speech. The fear of prosecution under an ambiguous law deterred people from exercising their right to freedom of speech.
The Court compared Section 66A with the reasonable restrictions under Article 19(2) and found that the provision did not fit within the permissible limits of these restrictions. The Court noted that the provision was not narrowly tailored to meet a specific public interest.
The judgment is celebrated for strengthening the protection of free speech in India. It set a precedent that laws restricting speech must be precise and narrowly tailored.
Conclusion
Section 66A of the Information Technology Act, 2000, was a controversial provision that faced significant criticism for its vague and broad language, leading to its misuse and the stifling of free speech. The Supreme Court’s decision to consider the constitutional validity of Section 66A of the IT Act and strike it down in the Shreya Singhal case reaffirmed the importance of protecting freedom of expression and set a high standard for the clarity and precision of laws impacting fundamental rights.
