This Article is written by Pushti Dublish pursuing BA LLB from Galgotias University.
BACKGROUND OF THE CASE
An amendment was made in the Information Technology Act, 2000 in the year 2008. This amendment has introduced Section 66A which penalized the offensive messages and also added Section 69A. It restricts the Freedom of Speech and Expression. Where under this provision, any arrest can be done if the act contains any harmful or offensive message, through the internet or any communication device.
In 2012, Shreya Singhal, a 2nd-year LL.B. student, filed a PIL before the Hon’ble Supreme Court of India, challenging the constitutional validity of Section 66A, 69A and 79 and whether it is curtailing Article 19(1) which talks about the Freedom of Speech and Expression.
FACTS OF THE CASE
The Police arrested two women for posting offensive and objectionable content on the social networking site, Facebook showing displeasure at a Bandh of the Mumbai city after the death of the political leader. Police arrested them under Section 66A of the Information Technology Act, 2000, 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 to cause annoyance, inconvenience, danger, insult, injury, hatred, or ill will.
Later on, Police released them and dropped the case but the incident attracted widespread public protest. As a result, a writ petition was filed in the public interest under Article 32 of the Constitution of India wherein the Petitioner challenged the constitutionality of Section 66A and contended that it violates the Fundamental Right of Freedom of Speech and Expression.
In 2013, the Court passed an interim measure that the arrest under Section 66A must be done with the approval of the senior Police Officer.
The PIL filed before the SC was clubbed with various other similar Petitions and the name of the case came to be Shreya Singhal v. Union of India. 
- Constitutionality of Section 66A, 69A and 79 of the Information Technology Act, 2000 was challenged.
- Whether Section 66A is violative of the Fundamental Right guaranteed under Article 19(1)(a) which speaks about the Freedom of Speech and Expression.
- Whether Section 66A is saved and included in the reasonable restrictions under Article 19(2).
PETITIONER?S CONTENTIONS AND ARGUMENTS
- Primarily, Section 66A violates the Fundamental Right of Freedom of Speech and Expression and not conserved by any of the restrictions mentioned in Article 19(2).
- It does not fall under the purview of Article 19(2) to cause danger, obstruction hatred or ill-will, etc.
- The offense created by Section 66A suffers from the vice of vagueness as it is not specifically defined. The terminology is not clear and roped the innocent persons as well. It gives wide discretion to the Authorities wherein decisions are based on their whims and desire and hence, no boundaries are set.
- Article 14 and 21 are also infringed because of no intelligible differentia as to why this provision includes only one means of communication which is discriminatory in itself and violative of Article 14.
- Defending the constitutionality, it was argued that legislature enacts a law by keeping in mind the needs of the people and interference of Court is accepted only when it violates the right conferred to the citizens under Part- III of the Constitution. The presumption is in favor of the legality of the law in question.
- A provision cannot be declared null or invalid based on a mere possibility, the loose language is used in the provision to protect other people’s rights from those who use the internet as a medium to threaten and annoy them.
- Vagueness cannot be a ground to declare a law unconstitutional if it is not arbitrary and competent.
ARTICLE 19(1) (a) – RIGHT TO FREEDOM OF SPEECH AND EXPRESSION
The preamble provides us with the liberty of expression, belief, thought, faith and worship. Various judgments were referred to mark the importance of free speech and expression.
In Romesh Thappar v. State of Madras, it was held that Freedom of Speech lies at the foundation of all democratic organizations. And like freedom of expression, freedom of speech and expression covers the right to communicate and receive information.
In Benett Coleman & Co. & Ors. V. Union of India & Ors.,  it was stated that the freedom of speech and the press is the ark of the covenant of democracy because public opinions are significant for the functioning of the democratic institutions.
Similarly, In S. Khushboo v. Kanniamal & Anr.,  the Court observed that the essence of freedom of speech and expression is not absolute because it is important to bear the unpopular views. For the sustainment of social existence, it is essential to have a free flow of opinions and ideas which is provided by the virtue of Article 19(1)(a). The practice of open dialogue considered a need for societal importance.
Justice Brandeis in his famous judgment Whitney v. California,  observed that liberty can be valued both as an end and as a means and considered the secret of happiness and courage to be the secret of liberty and to have a public dialogue is the political duty.
Further, it made the Court to distinguish between U.S. and India’s right to freedom of speech and expression:
Firstly, the first amendment of the U.S. is absolute i.e. Congress shall not make any law which abridges the freedom of speech.
Secondly, the basic difference lies in the inclusion and exclusion of the “press” and “expression” that the first amendment of the United States talks about the freedom of speech and the press without including “expression” whereas the Article 19(1)(a) includes expression and without giving any the reference to the “press”.
Thirdly, speech can be shortened if it is obscene, profane, libelous under U.S. Constitution but under the Indian constitution, there is an imposition of reasonable restrictions by the virtue of Article 19(2).
Fourth and the main difference lies whenever there is a necessity to achieve the considerable societal goal then such law abridging the freedom of speech may pass the muster but in India, it will pass the muster test only when it is enclosed by one of the eight subjects given under Article 19(2). If it is not covered then the court will strike down such law.
BASICS OF HUMAN RIGHTS – FREEDOM OF SPEECH AND EXPRESSION
There are 3 basic concepts involved in understanding a human right:
Any discussion or advocacy on a particular cause is enjoyable and acceptable as it is the soul of Article 19(1) (a). It is observed that Article 19(2) will only come into play when such discussion or advocacy leads to the level of incitement. At this stage, a law may be enacted which curtails the speech or expression and leads inexorably to or tends to cause public disorder or tends to affect the security of the state, etc.
CONSTITUTIONAL VALIDITY OF SECTION 66A
The constitutionality of Section 66A was challenged based on reasonable restrictions under Article 19(2) which are as follows:-
The expression “public order” was observed in the case of Romesh Thappar v. the State of Madras, stating that the expression “public order” is a term which depicts the state of serenity and peace that prevails among the members of society in consequence of the internal laws and regulations imposed by the government.
In the case of Dr. Ram Manohar Lohia v. State of Bihar & Ors.,  the Apex Court observed that to understand the gravity of the disorders, one has to think about three concentric circles. The larger one represents the law and order within which the next circle shows the public order and the security of the state is represented by the smallest one. It is then easy to observe that an act affects law and order but not the public order, similarly, an act may affect the public order without affecting the security of the state.
Further, the Court points out the difference between the maintenance and disturbance of law and order, management and interruption of public order. It was observed that it depends upon the degree of the disruption and its effect on the society which then determines whether it amounts only to a breach of law and order.
Clear and Present Danger Tendency to Effect
The question that whether the expressions used in such situations and are of such a nature that it will form a clear and present danger that the fundamental danger will arise. It is always a matter of relativity and degree. It should not be inaccessible, far-fetched or out-of-the-way to the anticipated danger. It must have a direct connection with the expression. The test of clear and present danger can be taken by examining whether the expression is inherently dangerous to the public interest i.e. it is inseparable and strongly connected with the action.
Incitement to an Offence
It cannot be assumed that the information spread over the internet incites every person. Written articles may fall purely under the category of “discussion” or “advocacy”. Even mere cause of annoyance, inconvenience, danger, etc or being grossly offensive does not cover under the head “offenses” under the Indian Penal Code at all. These can be the elements of certain offenses but are not offenses in themselves. Taking these factors into consideration, Section 66A has nothing to do with “incitement to an offense”. The provisions under Section 66A severely curtails information which is sent through internet medium on the basis that whether it is grossly offensive, aggravating, inconvenient, etc and are not related to any of the eight elements under Article 19(2) then it fails to pass the test of Article 19(2) and therefore, is to be declared unconstitutional.
Decency or Morality
In Directorate General of Doordarshan v. Anand Patwardhan,  the Court observed that the law in the United States and said that material may be considered obscene if the person is applying rational standards came across that the subject matter as a whole appeal to the prurient interest and to be taken as a whole otherwise it lacks serious values. It cannot be said that Section 66A creates a crime which may fall in the context of “decency” or “morality.” And what may be grossly offensive or annoying need not be obscene at all it is absent under Section 66A.
The terminology used to shape the offense under Section 66A is subjective in nature and its meaning. The expressions used are unclear and ambiguous that it is not feasible to determine the crime committed by an accused person and at the same time, the authorities are confused as to which side of the defined border a particular communication will fall. It can also be seen that what might be offensive to one may not be offensive and disrespectful to others.
It is the basic principle of the due process of law that if the limitations are not clear then the law is vague. The vagueness of an enactment offends important values like it provides an ordinary man of rational intelligence to be aware that what is prohibited under the law so that he acts accordingly. Secondly, it gives a wide discretion to the Police and Judges to interpret it on their whims and give open room to arbitrariness.
Coming to the discrimination under Article 14, the Petitioner argued that there is no intelligible differentia between the media of broadcasting, live speech and print as opposed to speech on the internet but the Apex Court did not agree and stated that there is intelligible differentia as any individual can spread any opinion by using the internet as a medium as it needs no payment to spread their word and also anything posted on the internet travels with the speed of light and reaches to the world. It also held that there is a thin line between the online speech and other communications for which law can make separate offenses. Therefore, this ground fails.
CONSTITUTIONALITY OF SECTION 69A AND 79
Section 69A provides the procedure and the safeguards to block the access of the information by any person. It can be done by a reasonable order only after following the defined rules which involve the hearing to the originator and intermediary. The website blocking order can be passed in 2 ways. Firstly, by the designated Officer in compliance with 2009 Rules and secondly, when the Court hands over the Order to the designated Officer.
The intermediary who uses his discretion to assess whether or not information must be barred is particularly absent from Section 69A read with the 2009 Rules. Exemption from intermediary responsibility is specified in Section 79(3)(b) where the intermediary has true knowledge (certified copy of the warrant) that a Court?s order has been issued directing the intermediary to delete or block access to particular material without any delay. This is because then, it would be very tricky for intermediaries such as Facebook, Google, etc. to follow the order when huge requests are pending and the intermediary subsequently verify which of these requests are reasonable and which are not. It was observed that this vision has gained acceptance around the world (exemption under similar conditions).
The Apex Court held that the Court’s order/notification and direction by the government or its appropriate agency should be rigorously in line with the subject matter set out in Article 19(2). Prohibited acts beyond the provisions of Article 19(2) cannot form part of Section 79.
Rule of severability was applied in this case, where only the provision i.e. Section 66A was held unconstitutional and not the whole act.
- Section 66A of the IT Act, 2000 is struck down completely as it is violative of Article 19(1) (a) and not saved under the subject matter Under Article 19(2).
- Section 69A of the IT Act talking about the blocking of access of information by the public was held constitutional.
- Section 79 was held valid subject to Section 79(3) (b).
The dependence of people on information security and their behavior towards it will affect the way they intend to use information technology. This has led to the proliferation of cybercrimes quotidian. The primary reason for this mounting crime rate is the lack of necessary training and the flawed enforcement of the legislative laws.
As per the Information Technology Act, 2000, Cybercrime does not have any definitive feature. These heinous crimes, in the era of modernity where the saga depends on technology, have resulted in psychological damage to varying individuals, but it has explicitly made government and organizational data vulnerable to exposure.
Therefore, it can be seen that this enactment has made easy for the government as well as for the public as it covers a variety of cybercrimes and defines punishment for the same.
Equally, the inclusion of Section 66A gives wide discretion to the concerned authorities to act arbitrarily. Also, it is not definitive and clear which otherwise constitutes vagueness and held unconstitutional by the Court being violative of Article 19(1)(a)
The Judgment was given by the Apex Court as the Section was considered vague and ambiguous. Providing a wide area of interpretation to the administrators and misuse of which can be seen in the present case. By just posting your opinion and commenting on it does not create any offense. This shows a clear violation of Article 19.
- Shreya Singhal v. Union of India, AIR 2015 SC 1523.
- Romesh Thappar v. State of Madras,  S.C.R. 594.
- Benett Coleman & Co. & Ors. V. Union of India & Ors.,  S.C.R. 757.
- S. Khushboo v. Kanniamal & Anr,. (2010) 5 SCC 600.
- Whitney v. California, 71 L. Ed. 1095.
- Dr. Ram Manohar Lohia v. State of Bihar & Ors.,  1 S.C.R. 709.
- Directorate General of Doordarshan v. Anand Patwardhan, 2006 (8) SCC 433.
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