SHREYA SINGHAL AND OTHERS V. UNION OF INDIA

CASE STUDY ON CYBER LAW

Author: ESHA CHATTERJEE, a Student of BIRLA GLOBAL UNIVERSITY

CASE ANALYSIS: SHREYA SINGHAL AND OTHERS V. UNION OF INDIA

The famous case of Shreya Singhal v. Union of India[1] has had a profound effect on the development of the Indian judicial system. The Indian Constitution’s Article 19(1)(a) guarantees the basic right to freedom of speech and expression, which is at issue in this case.

Ten criminal and civil writ petitions were filed with the Honourable Supreme Court of India in this case, which is brought under Article 32 of the Indian Constitution. Regarding the freedom of speech and expression protected by Article 19 (1) (a) of the Indian Constitution, these writ petitions primarily objected to the provisions of Sections 66 A, 69 A, and 79 of the Information Technology Act of 2000[2] and Section 118 (d) of the Kerala Police Act.

FACTS 

In 2012, the Mumbai police detained two females, Shaheen Dhada and Rinu Shrinivasan, for voicing their disapproval on Facebook over the Shiv Sena-called bandh following the death of leader Bal Thackrey in Mumbai. On social media, one of the girls made a comment criticising the bandh, while the other loved the post. As a result, the Mumbai police launched an instant section 66 A investigation against them in accordance with the Information and Technology Act of 2000.

The Mumbai police detained them only for making comments, showing approval, and thinking that their actions incited animosity and annoyance among the general public. However, the girls were freed after a few days, although Media outlets brought to light the fact that the Information Technology Act of 2000’s Section 66 A violated the right to freedom of speech and expression as guaranteed by Article 19(1)(a) of the Indian Constitution, following widespread public outcry over the arrest and case.

Basically, sending offensive SMS or messages via communication services is punishable under Section 66 A of the IT Act, 2000. Since the offence listed in Section 66A of the IT Act, 2000 (punishment for transmitting offensive messages through communication services, etc.) is considered a cognizable offence, police officers are able to make an arrest and begin an investigation without a warrant.

As a result, many innocent persons were detained nationwide under section 66 A of the IT Act, 2000 for sharing any opposing political viewpoint or opinion that the government deemed to be “obnoxious content” or “hatred.” Following this occurrence and the ensuing protests, the Indian Union Government issued a notification in 2013 declaring that no one might be arrested without first obtaining permission from a superior authority, defined as any person who holds a position higher than Inspector General of Police.

In order to challenge the constitutionality of section 66 A of the Information Technology Act, 2000 under Article 32 of the Indian Constitution, persons from all over the nation filed about ten writ petitions with the Indian Supreme Court. The Indian Supreme Court combined all of the submitted petitions into a single Public Interest Litigation. The case was hence known as Shreya Singhal v. Union of India[3]. First, the Supreme Court of India issued an interim order in this matter, barring any arrests made under Section 66A unless top police authorities authorise them. The constitutionality of the contested sections was also discussed by the Honourable Supreme Court in this instance.

ISSUE:

1. Is the Information Technology Act of 2000 constitutionally lawful under Sections 66A, 69A, and 79?
2. Does the IT Act, 2000’s Section 66A infringe people’s right to free speech and expression?
3. Is the Information Technology “Intermediary Guidelines” Rules, 2011 and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules, 2009 constitutionally valid?
4. Is the Kerala Police Act’s Section 118(d) constitutionally valid?

ARGUMENTS 

ARGUMENTS BY PETITIONER

The petitioner’s principal contention was that Article 19 (1) (a) of the Indian Constitution guarantees the right to freedom of speech and expression, which is violated by Section 66 A of the Information Technology Act.

• Anger, inconvenience, danger, obstruction, harm, criminal intimidation, hostility, animosity, or ill-will are all examples of words that fall outside the definition of reasonable restrictions as stated in Article 19(2) of the Indian Constitution.
• This section contains no definitions for any of the terms discussed. Additionally, they argued that because this section’s contents are ambiguous and imprecise, innocent people are being prosecuted under them.
• Enforcing this Section would be a subtle kind of discrimination.
• The freedom of speech and expression is stifled by it. As a result, it influences viewers’ rights to access different viewpoints.
• Because it discriminates against internet users, it violates Articles 14 and 21.
• It is flawed by inappropriate procedural practices.
• The internet and other forms of communication—spoken or written—differ in no discernible ways.

Second, the petitioners’ learned solicitors argued that the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 and Section 69 A of the Information Technology Act, 2000 are unconstitutional because they do not give the information’s original creator a pre-decisional hearing.[5] There are no procedural protections accessible here that are found in Sections 95 and 96 of the Code of Criminal Procedure. The confidentiality clause is problematic since it interferes with the petitioners’ fundamental rights.

Third, petitioners’ counsel contended that Section 79 of the IT Act, 2000 and the Information Technology (Intermediary Guidelines) Rules, 2011 violate Article 19 (2) of the Constitution due to its vagueness, overbreadth, and violation of reasonable constraints. Throughout the arguments, solicitors raised a number of objections to Rules 3(2) and 3(4) as well as Section 79(3)(b).

 Further competent lawyers argued that the provisions of Article 19(2) of the Indian Constitution do not apply to Section 118 (d) of the Kerala Police Act, and that it violates rights granted under Article 19(1)(a). They also questioned the Kerala government’s ability to pass such an Act through legislation.

ARGUMENTS RAISED BY RESPONDENT: 

In this instance, the respondent’s learned extra solicitor general successfully countered the points raised by the petitioners.

• Primarily, the respondent counsel argued that the legislature possesses the necessary competence and is in the optimal position to comprehend and value the needs of the people in order to support the constitutionality of Section 66 A of the Information Technology Act, 2000. 
• The legislation’s enacted laws cannot be arbitrarily overturned by the court. The court will only get involved when a specific statute violates Part III of the Indian Constitution.
• The mere potential for a certain provision to be abused might not be sufficient justification to declare a provision invalid.
• A statute cannot be deemed unconstitutional as a whole if a section is vague on its own and the legislation is non-arbitrary and competent.
• A speech delivered via the internet should be subject to softer requirements of reasonable limits because it is a distinct medium from other forms of communication.[6]
• The government is dedicated to upholding the concept of free speech, and it promises not to restrict free speech via laws or other measures until and until there is misuse.
• As stated in Article 13 of the Indian Constitution, if the court finds any provision to be unsatisfactory, 
• It’s possible that Section 66A’s vague wording was intended to shield the populace from violators using the same channel.
• A statute cannot be deemed unconstitutional as a whole if a section is vague on its own and the legislation is non-arbitrary and competent.
• A speech delivered via the internet should be subject to softer requirements of reasonable limits because it is a distinct medium from other forms of communication.[6]
• The government is dedicated to upholding the concept of free speech, and it promises not to restrict free speech via laws or other measures until and until there is misuse.
• A statute cannot be deemed unconstitutional as a whole if a section is vague on its own and the legislation is non-arbitrary and competent.
• A speech delivered via the internet should be subject to softer requirements of reasonable limits because it is a distinct medium from other forms of communication.[6]
• The government is dedicated to upholding the concept of free speech, and it promises not to restrict free speech via laws or other measures until and until there is misuse.
• As stated in Article 13 of the Indian Constitution, if the court finds any provision to be unsatisfactory, 
• According to Article 13 of the Indian Constitution, a court may use the Doctrine of Severability to preserve a portion of a certain section if it is dissatisfied with any provision.
• The Additional Solicitor General further defended the legality of Section 79 of the Information Technology Act, 2000 and the Information Technology Rules, 2011 by asserting that user agreements akin to those found in Rule 3(2)—which grant intermediaries the authority to remove certain information based solely on their own judgment—are customarily in place throughout the world.

JUDGEMENT:

Following the hearing of arguments from the petitioners and respondent, the court first addressed discussion, advocacy, and incitement—the three most crucial principles in comprehending the right to free speech. “Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart” of Article 19(1)(a), according to the Honourable Supreme Court. The Court additionally noted that Article 19(2) only comes into play when such advocacy or discussion reaches the point of incitement.

The Information Technology Act, 2000’s Section 66A was completely invalidated by the two-judge bench of J. Chelameswar and R.F. Nariman because it violated Article 19 (1) (a) and was not rescued by Article 19 (2).

The Information Technology (Procedure & Safeguards for Blocking for Access to Information by Public) Rules 2009 and Section 69A of the Information Technology Act, 2000 were upheld by the court as being constitutional.

Furthermore, the Honourable Supreme Court ruled that Section 79 was constitutionally valid, subject to the interpretation of Section 79(3)(b) to require an intermediary to act as a go-between when it receives actual knowledge from a court order or when it receives notification from the relevant government or one of its agencies regarding unlawful acts related to Article 19(2).

According to Rule 3 sub-rule (4), the Information Technology “Intermediary Guidelines” Rules, 2011 have also been deemed valid.

The court also invalidated Section 118(d) of the Kerala Police Act, citing it as a violation of Article 19 (1) (a) and a failure to adhere to the reasonable constraints outlined in Article 19(2) of the Indian Constitution. Additionally, it has been decided that this Act will fall under Entry 1 List III, which deals with criminal legislation, meaning that the State Legislature would ultimately be in charge of it.

RELEVANT CASE LAWS:

Every  existent in a popular nation like India is free to  state their opinions and to be critical of others. Citizens have the right to  state their opinions and complaints, including in relation to government  programs and  systems. specially, Composition 19( 1)( a) of the Indian constitution secured and  shielded the right to freedom of speech and expression. The Indian constitution indeed guarantees freedom of speech in its preamble.  The Indian Supreme Court supported the right to freedom of speech and expression in  multitudinous  major  opinions. In the  major Romesh Thapparv. State of Madras case, for case, the Indian Supreme Court ruled that” freedom of speech lay at the foundation of all popular organisations.”  also, it has been decided in the  major Bennet Colemanv. Union of India case that” freedom of speech and press is the ark of the covenant of republic because public  review is essential to the working of its institutions.”( 9) still, Composition 19( 2) exempts the government from the right to freedom of speech and expression  handed by Composition 19( 1)( a) by permitting” reasonable restrictions” to be assessed.  In light of this,  countries are permitted by Composition 19( 2) to pass legislation that places reasonable limitations on the exercise of the rights granted by Composition 19( 1)( a) when doing so serves the interests of India’s sovereignty and integrity,  public security, friendly relations with other countries, public order, decency, or morality, or when it comes to cases involving  disdain of court,  vilification, or incitement to commit an offence.( 10) still, this will  help the government from completely  confining the freedom of speech and expression.  The Supreme Court of India has  handed  explanation on reasonable restrictions in a number of  major cases. Sakal Papers( P)Ltd. & Ors.v. Union of India, for case, established that a citizen’s right to free speech can not be  confined in order to  stymie their capability to conduct business. Only when it comes to public order, decency or morality, cordial relations with other  countries, state security, or cases of  disdain,  libel, or  stimulant to an offence, may speech be controlled.  likewise, indeed in order to  insure that another freedom is enjoyed to the fullest, the State can not pass legislation that directly restricts one freedom. The  further compelling argument,  also, is that the State can not directly  circumscribe one freedom by assessing a restriction on another that would  else be legal.”( 11)  In the case of Shreya Singhal versus Union of India, the supreme court of India has tried to balance the rights  handed in Composition 19( 1)( a) and reasonable restrictions under Composition 19( 2). The Supreme Court  rightly and unequivocally said in its judgement notes that” liberty of  study and expression is a cardinal value that’s of consummate significance under our  indigenous scheme when it comes to republic.”( 12)  utmost significantly, the Court has distinguished between incitement, discussion, and advocacy. It has also held that reasonable limitations on the right to free speech and expression under Composition 19( 2) may only be applied in situations where there’s clear incitement. In this case, section 66A of the IT Act’s  indigenous validity was primarily  queried due to its violation of the right guaranteed by Composition 19( 1)( a) and the fact that it exceeds the bounds of reasonable restrictions as defined by Composition 19( 2).  Since section 66A doesn’t distinguish between” bare discussion or advocacy of a particular point of view, which may be annoying or inconvenient or grossly  obnoxious to some and incitement by which  similar words lead to an imminent unproductive connection with public  complaint, security of State,etc.,” the court determined that section 66A can be used to  circumscribe all forms of internet dispatches in this case.( 13) likewise, there’s no clear proximate relationship between the protection of public order and section 66A of the IT Act.  The  description of” public order” in the seminal Romesh Thappar case is” a state of tranquillity which prevails among the members of a political society.”( 14) In Shreya Singhal’s case, the Court ruled that  transferring a communication with the intention of causing annoyance or  personality constitutes an offence under Section 66A. still, the same law doesn’t distinguish between mass dispersion and dispersion to a single person, without  taking the communication to have a  provable tendency to disrupt public order.  According to the Apex court,” any innocent comment made by anyone whose  end isn’t to defame or  discourteousness anyone can not fall under the  dimension of hate comment.” In this case, the distinction between” detest Speech and Fair Speech” was also stressed.( 15) In the Shreya Singhal case, the Honourable Apex court cited rulings from the United States Supreme Court regarding the  nebulosity of section 66A. TheU.S. Supreme Court held in a number of rulings that ” Where a Section that creates an offence is vague and lacks reasonable  norms to define guilt, and where law- abiding citizens, authorities, and courts aren’t  handed with clear guidance, the Section must be struck down as being arbitrary and unreasonable.”  farther section 66A is also implicit of assessing  nipping effect because the clause lacks to specify terms like  vexation or annoyance accordingly” a  veritably large  quantum of  defended and innocent speech” could be banned. thus, we may understand that provision 66A of the IT Act, is unlawful. In a  analogous  tone, the Honourable Supreme Court ruled that Section 66A of the Information Technology Act was unconstitutional in the Shreya Singhalv. Union of India case.  The petitioner’s claim that there’s no  perceptible difference between print and live speech and speech on the internet as a communication medium was rejected by the court. In a related case, the pleaders argued that Section 66A violated Composition 14 of the Constitution, which prohibits demarcation. still, the court dismissed the pleaders’ argument, noting that there’s a  perceptible difference between information transmitted through the internet and other forms of speech, allowing the government to establish distinct offences related to online dispatches.

CRITICAL ANALYSIS OF THE CASE:

The ruling in the Shreya Singhalv. Union of India case, rendered by judgesJ. Chelameswar andR.F. Nariman, is a significant bone

             in the history of Indian law, particularly in thepost-independence period when the voice of the common people is being suppressed. It’s clear from this judgement that the Honourable Supreme Court of India made a significant decision by striking down section 66A of the Information Technology Act of 2000, which is basically a regulation that restricts speech.  Section 66A was ruled to be illegal in this  major case, and the breadth of the right to freedom of expression as  defended by Composition 19( 1)( a) of the Indian Constitution was upheld by the  corner ruling. The Apex Court considered several other  instructional factors in this case,  similar as the significance of the necessity of incitement and not just advocacy or discussion, in addition to the  indigenous validity of particular portions.  This case serves as an excellent illustration of how the bar’s recognition of legal gaps can affect in  further effective andnon-arbitrary legislation as well as a wider range of rights enjoyment. The Honourable Court increased the enjoyment of the right to freedom of speech and expression by  nearly examining the arbitrary  vittles of the legislation.  To be honest, this is a really  instructional ruling that clarifies the  numerous  propositions and connects them to the right to free speech and expression. The principles of  nebulosity and the doctrine of reasonable restriction are primarily applied in this case to determine whether or not the  vittles are  naturally  licit. This case serves as an excellent illustration of the Doctrine of Severability.  The replier’s learned  fresh solicitor general presented the following argument in this case” The Doctrine of Severability, as  elevated under Composition 13, may be resorted to in the event thatHon’ble Court isn’t satisfied about the  indigenous validity of either any expression or a part of the provision.”  The case of Romesh Thapparv. State of Madras established that” it isn’t an authority for the position that indeed when a provision is severable, it must be struck down on the ground that the principle of severability is inadmissible when the invalidity of a  enactment arises by reason of its breaching  indigenous  proscriptions.” still, the learned solicitor neglected to specify which part of section 66A can be saved further.  therefore, the Supreme Court decided that” no part of Section 66A is severable and the provision as a  total must be declared unconstitutional” in the Shreya Singhalv. UOI case as well.( 19) The Supreme Court’s decision in the  major case pertaining to free expression has far- reaching  goods that go well beyond a single ruling.  The Apex Court took the unusual and  major decision to rule that a suppression  enactment passed by the Parliament was unconstitutional in this  corner decision. The unconstitutional clause that  tried to muzzle the voice of the average person has been capsized by the court.

RECENT DEVELOPMENTS:

This historic ruling by the Indian Supreme Court carefully construed what constitutes a legitimate basis for limiting the right to free speech, therefore expanding it. We can categorically state that the freedom of speech and expression was maintained by this historic decision. Sadly, though, there was a hiccup in the execution of the Supreme Court’s ruling in this historic case.

For example, two years after this ruling in march 2017, one Zakir Ali Tyagi, an 18-year-old from Muzaffarnagar, Uttar Pradesh was imprisoned under the Section 66A of Information Technology Act, 2000 for posting a comment against Uttar Pradesh CM Yogi Adityanath and served 42 days in UP Jail. [20] In 2012 Prof. Ambikesh Mahapatra, Chemistry professor of Jadavpur University, was jailed under

since section 66A has been in effect for seven years. However, the police continue to use this part as justification for detaining people in numerous states. Even in this day and age, when communication is quick and simple, police personnel still don’t seem to be aware that the Supreme Court has overturned Section 66A.

For instance, in March 2017, two years after the ruling, an 18-year-old from Muzaffarnagar, Uttar Pradesh named Zakir Ali Tyagi was detained for 42 days in the Uttar Pradesh Jail according to Section 66A of the Information Technology Act, 2000, for making a comment against the chief minister of Uttar Pradesh, Yogi Adityanath. [20] 2012 saw the arrest of Jadavpur University chemistry professor Prof. Ambikesh Mahapatra under section 66A of IT act.

Despite the invalidation of Section 66 A of the IT Act, the trial in this matter is still ongoing.[21] Two further arrests occurred in October 2018 and May 2019, with charges brought under Section 66A of the IT Act. The two main causes of this legal illiteracy are that the authorities, such as magistrates and judges of lower courts, are not informed on recent changes to the law or about rulings from the High Court and Supreme Court. Most crucially, political power also has the ability to persuade authorities to act against the law.

In order to ensure the implementation of the Court’s first ruling, the People’s Union for Civil Liberties, one of the actual petitioners in the Shreya Singhal Case, addressed the Supreme Court in January 2019 by publicising the study and requesting instructions. The attorney for PUCL contended in court that there were 229 instances under Section 66A that were ongoing at the time of the section’s repeal. 1,307 new cases have been filed since then, 570 of which are currently ongoing. [22] The Union of India communicated the thorough actions it has taken to raise awareness about Section 66A in a counter-affidavit.

This includes two letters that the government sent to state governments on January 11 and 14, 2019, respectively, requesting that they end Section 66A cases and provide data on such instances. However, only a few states responded. On August 20, 2021, the Supreme Court sent letters to all states, Union territories, and registrars general of High Courts over a plea noting the continued use of Section 66A of the Information Technology Act despite the court’s 2015 ruling that it was unconstitutional.

The court went on, “This cannot continue.” The Centre added that chief secretaries of states, administrators of Union Territories, and DGPs of states and UTs had received letters from the Ministry of Electronics and Information Technology (MeITY) and the Home Ministry requesting that they raise awareness among LEAs and instruct law enforcement not to file cases under the quashed provision.

In this instance, the Apex court also maintained the constitutionality of Section 69A of the Information Technology Act, which grants the authority to prevent public access to any information via computer resources. As a result, in accordance with Section 69A of the Information Technology Act, the Ministry of Electronics and Information Technology (MeitY) issued an order in February 2021 banning specific Twitter accounts and messages.

Prior to MeitY’s action in February 2019, Jio users couldn’t access some websites, including Reddit, Telegram, and Indian Kanoon, as they were all restricted by government directives under section 69A. Most notably, this area was used to restrict 59 Chinese apps in 2020, including Cam Scanner and TikTok. [24] However, in my opinion and in light of recent events, there is a possibility that Section 69A will be abused because it has been and still may be used as a means of silencing the voice of the people!

CONCLUSION 

Shreya Singhal v. Union of India (U.O.I.) is regarded as one of the most important and landmark rulings concerning the freedom of speech and expression in the history of the Indian legal system for a number of reasons. In this instance, the Honourable Supreme Court successfully defended both the public interest and individual rights.

In addition to upholding citizens’ fundamental right to freedom of speech and expression, the ruling by Honourable Judges J. Chelameswar and R.F. Nariman undoubtedly broadened that right’s bounds. Since everyone has the right to express their political opinions without fear of being subject to arbitrary or unjustifiable restrictions, we could argue that this ruling marks a turning point for Article 19(1)(a).

Nevertheless, despite the fact that Section 66A of the IT Act, 2000 was invalidated by an order from the Supreme Court dated March 24, 2015, a number of lawsuits have been brought under the statute against innocent persons. Even judges of lower courts and police officials were unaware of this supreme court decree.

Consequently, the state needs to do more than just send higher officials circulars; it needs to take concrete action. Then, only this historic ruling will be useful and productive. One innocent person should not be punished, even if thousands of offenders manage to get away with it! This is one of the more instructive cases overall. Furthermore, the historic ruling is truly noteworthy and, most significantly, it strengthens and grows public confidence in the judiciary!