In the Supreme Court of India
|Name of the Case||Shreya Singhal vs U.O. I|
|Citation||Writ Petition No. 167 of 2012|
|Year of the Case||2015|
|Respondent||Union of India|
|Bench/Judges||J. Chelameswar, Rohinton Fali Nariman|
|Acts Involved||Information Technology Act, 2000|
|Important Sections||Section 66-A, 69A, 79|
Shreya Singhal v. Union of India is a judgement by a two-judge bench of the Supreme Court of India in 2015, on the issue of online speech and intermediary liability in India. The Supreme Court struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. The Court further held that the Section was not saved by being a ‘reasonable restriction’ on the freedom of speech under Article 19(2). The Supreme Court also read down Section 79 and Rules under the Section. It held that online intermediaries would only be obligated to take down content on receiving an order from a court or government authority. The case is considered a watershed moment for online free speech in India.
The Supreme Court of India discredited Section 66A of the Information Technology Act of 2000 completely. The Court held that the denial against the dispersal of data by methods for a PC asset or a specialized gadget proposed to cause irritation, bother or affront didn’t fall inside any sensible exemptions to the activity of the privilege to the opportunity of articulation.
Background of the case
Mumbai police arrested two young ladies Shaheen Dhada and Rinu Srinivasan in 2012 for imparting their disappointment at a bandh got the wake of Shiv Sena manager Bal Thackery’s end. The young ladies posted their comments on Facebook. The captured young ladies were released later on and it was chosen to drop the criminal arguments against them yet the captures of them pulled in the nation over dissent. It was assumed that the police have mishandled its position by conjuring Section 66A simultaneously it is a break of the basic right of discourse and articulation.
The offense under Section 66A of IT act being cognizable, law requirement offices have a position to capture or examine without warrants, in light of charges brought under the data innovation act. The result of this was numerous profoundly acclaimed captures of individuals all through the nation for posting their perspectives and sentiments though govt called them ‘questionable substance’ yet more frequently these substances were contradicting political conclusions. In January 2013, the focal govt had turned out with a warning under which no individual can’t be captured without the police having the earlier endorsement of controller general of police or some other senior authority to him/her. The Supreme Court called the whole appeal identified with established legitimacy of data innovation act or any segment inside it under a single PIL case known as “Shreya Singhal v. Association of India.”[W.P. (Crl). No.167 of 2012].
A writ petition was filled out in the public interest under Article 32 of the Constitution of India by the applicant, looking to announces Section 66A,69A, and segment 79 as illegal on the way that the diction utilized in Section 66A,69A and segment 79 of the IT Act, 2000 is so wide and dubious, simultaneously unequipped for being decided on target guidelines, that it is vulnerable to wanton maltreatment and thus falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution. Candidate further contends that the terms, threatening, hostile, disturbance, bother, check, peril, and affront have not been characterized in the General Clauses Act, IT Act, or some other law thus they are powerless to wanton maltreatment. applicant further encouraged that the arrangement sets out an irrational order between residents on one hand and then again netizens as the opportunity, for the most part, ensured under Article 19(1)(a) to residents including general media now is subdued all things considered. If netizens offer remarks which could be made for the most part by residents, they can be captured. This is how Article 14 is been disregarded by this arrangement.
The principle issue was whether Section 66A of ITA disregarded the privilege to the opportunity of articulation ensured under Article 19(1)(a) of the Constitution of India. As a special case to one side, Article 19(2) licenses the administration to force “sensible limitations . . . in light of a legitimate concern for the power and respectability of India, the security of the State, agreeable relations with unfamiliar States, public request, fairness or ethical quality or according to the scorn of court, slander or actuation to an offense.”
Section 66A in The Information Technology Act, 2000
66A Punishment for sending offensive messages through communication service, etc. -Any person who sends, using 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 to cause 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 to cause 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 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.
Section 69A in The Information Technology Act, 2000
69A 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 officer specially authorized 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, defense of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offense 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 imprisonment for a term which may extend to seven years and shall also be liable to fine.
Section 79 in The Information Technology Act, 2000
79 Exemption from liability of intermediary in certain cases. –
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe on this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation. -For this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.
Article 19 in The Constitution of India 1949
19. Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practice any profession, or to carry on any occupation, trade, or business
(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 with contempt of court, defamation or incitement to an offense
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause
(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
- India, Sakal Papers (P) Ltd. v. The Union of India, (1962) 3 S.C.R. 842
- India, Khushboo v. Kanniammal, (2010) 5 S.C.C. 600
- India, Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632
- India, Khushboo v. Kanniammal, (2010) 5 S.C.C. 600
- India, State of Madras v. V. G. Row, (1952) S.C.R. 597
- India, Secretary, Ministry of I&B v. Cricket Association of Bengal, (1995) A.I.R. 1236
- India, Rangarajan v. Jagjivan Ram, (1989) 2 S.C.C. 574
- India, Abbas v. Union of India, (1970) 2 S.C.C. 780
- India, Zameer Ahmed Latifur Rehman Sheikh v. the State of Maharashtra, (2010) 5 S.C.C. 246
- India, A.K. Roy v. Union of India,  2 S.C.R. 272
- India, State of Madhya Pradesh v. Baldeo Prasad,  1 S.C.R. 970
- India, Aveek Sarkar v. Jharkhand, 2006 Cri. L.J. 4211
- India, Directorate General of Doordarshan v. Anand Patwardhan, 2006 (8) S.C.C. 433
- India, Udeshi v. the State of Maharashtra,  1 S.C.R. 65
- India, Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, 1996 (1) S.C.C. 130
- India, Nath Singh v. the State of Bihar, 1962 Supp. (2) S.C.R. 769
- India, State of Bihar v. Shailabala Devi,  S.C.R. 654
- India, Arun Ghosh v. State of West Bengal,  3 S.C.R. 288
- India, Khare v. State of Delhi,  S.C.R. 519
- India, Chintaman Rao v. The State of Madhya Pradesh,  S.C.R. 759
- India, Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, (1985) 2 S.C.R. 287
- India, Bennett Coleman & Co. v. Union of India,  2 S.C.R. 757
- India, Thappar v. the State of Madras, (1950) S.C.R. 594
- India, Kameshwar Prasad v. The State of Bihar,  Supp. 3 S.C.R. 369
- The U.S., Abrams v. the United States, 250 U.S. 616 (1919)
- The U.S., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
- U.K., Chambers v. Dir. of Pub. Prosecutions,  EWHC 2157
- The U.S., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)
- U.S., Schenck v. United States, 249 U.S. 47 (1919)
- The U.S., Terminiello v. Chicago, 337 U.S. 1 (1949)
- U.S., Brandenburg v. Ohio, 395 U.S. 444 (1969)
- The U.S., Virginia v. Black, 538 U.S. 343 (2003)
- The U.S., Grayned v. City of Rockford, 408 U.S. 104 (1972)
- U.S., Reno v. ACLU, 521 U.S. 844 (1997)
- The U.S., the United States v. Reese, 92 U.S. 214 (1875)
- The U.S., City of Chicago v. Morales, 527 U.S. 41 (1999)
Judges Chelameswar and Nariman conveyed the view of the Supreme Court of India.
The Petitioners contended that Section 66A was illegal because its proposed assurance against disturbance, bother, peril, obstacle, affront, injury, criminal terrorizing, or malevolence fall outside the domain of Article 19(2). They likewise contended that the law was illegally unclear as it neglects to explicitly characterize its disallowances. What’s more, they battled that the law has a “chilling impact” on the privilege of the opportunity of articulation. [para. 5]
The administration, then again, contended that the governing body is in the best situation to satisfy the necessities of individuals and courts may meddle with the authoritative cycle just when “a resolution is violative of the rights presented on the resident under Part-III of the Constitution.” [para. 6] The administration fought that the simple presence of maltreatment of an arrangement may not be a ground to announce the arrangement as illegal. Additionally, the administration was of the supposition that free language of the law couldn’t be a ground for weakness because the law is worried about novel strategies for upsetting individuals’ privileges through the web. As indicated by the administration, dubiousness can’t not a ground to proclaim a resolution unlawful “if the rule is generally authoritatively skillful and non-subjective.” [para. 6]
The Court initially talked about three key ideas in understanding the opportunity of articulation: conversation, backing, and actuation. As per the Court, “[m]ere conversation or even promotion of a specific reason howsoever disagreeable is at the heart” of the right. [para. 13] And, the law may reduce the opportunity just when a conversation or backing adds up to instigation. [para. 13]
As applied to the case close by, the Court found that Section 66A is fit for restricting all types of web correspondences as it sees no difference “amongst simple conversation or support of a specific perspective, which might be irritating or badly arranged or hostile to a few and instigation by which such words lead to an inevitable causal association with a public issue, security of State and so on” [para. 20]
The Court additionally held that the law neglects to build up an away from the connection to the insurance of public requests. As indicated by the Court, the commission of an offense under Section 66A is finished by communicating something specific to cause disturbance or affront. Thus, the law doesn’t make the qualification between mass scattering and spread to just a single individual without requiring the message to have an away from upsetting public requests.
Regarding whether Section 66A was a legitimate endeavor to shield people from slanderous proclamations through online correspondences, the Court noticed that the primary element of criticism is “injury to notoriety.” It held that the law doesn’t concern this target since it likewise censures hostile explanations that may irritate or be awkward to a person without influencing his standing. [para. 43]
The Court likewise held that the administration neglected to show that the law expects to forestall interchanges that actuate the commission of an offense because “the simple causing of irritation, bother, risk and so forth, or being hostile or having a threatening character are not offenses under the Penal Code by any stretch of the imagination.” [para. 44]
Regarding applicants’ test of ambiguity, the Court followed the U.S. legal point of reference, which holds that “where no sensible principles are set down to characterize blame in a Section which makes an offense, and where no reasonable direction is given to either honest residents or specialists and courts, a Section which makes an offense and which is ambiguous must be struck down as being discretionary and nonsensical.” [para. 52] The Court found that Section 66A leaves numerous terms open-finished and indistinct, in this way making the resolution void for ambiguity.
The Court likewise tended to whether Section 66A is fit for forcing chilling impact on the privilege to the opportunity of articulation. It held that because the arrangement neglects to characterize terms, for example, bother or disturbance, “an exceptionally enormous measure of secured and blameless discourse” could be reduced. [para. 83]
The Court likewise noticed the understandable contrast between data sent through the web and different types of discourse, which allows the administration to make separate offenses identified with online interchanges. In like manner, the Court dismissed applicants’ contention that Section 66A was infringing upon Article 14 of the Constitution against separation. [para. 98]
The Court declined to address the Petitioners’ test of procedural absurdity since the law was at that point announced unlawful on considerable grounds. It likewise discovered Section 118(d) of the Kerala Police Act to be illegal as applied to Section 66A.
Given the doing without reasons, the Court discredited Section 66A of ITA completely as it disregarded the privilege to the opportunity of articulation ensured under Article 19(1)(a) of the Constitution of India.
The judgment has safeguarded and spared the ability to speak freely and articulation given to individuals under article19 (1) (a) of Indian Constitution and limiting state from discretionary apply of intensity in setting to opportunity referenced under article 19 of the constitution, simultaneously Given clear rules for additional authorizing law corresponding to the sensible limitation on crucial right and opportunity given by Indian constitution But miss to entreat the guideline of straightforwardness for rules to impede the site. Needs some further cross-examination and tweaking as to watchers directly as he/she should realize why the state isn’t permitting them to have certain data and that reason can be tested by the watchers likewise.
However, the Apex Court has placed a great deal of confidence in specialized and convoluted government measures dependent on uncertain comprehension of the abilities and limits of the various gatherings included. For instance, the law concerning the content-impeding technique has been proclaimed compelling on the conviction and assumption that the obstructing of site rules (2009) gives a sensible possibility and occasion to be heard and to challenge an illegal hindering request. This is, commonly, deceptive. It assumes that the originator of substance will be reached and educated about the obstructing of his/her substance and a sensible open door will be given to challenge the impeding of the substance.
Furthermore, the supposition that the go-between will give a reason and shield the substance before the concerned government body. The two presumptions are far away from the imprint. The specialized idea of the Internet, with its geographic spread and namelessness, makes it likely conceivable that the originator of the substance may not be reached, given substance originator might be in an unfamiliar nation or can do not have the assets to contend and seek after his/her case. Mediators won’t sensibly safeguard the substance since they like to abstain from spending assets on securing outsider substance. The aggregate effect of this is that the data accessible to access will keep on being influenced by irrational government hindering requests.
The impending strategy keeps on being canvassed in mystery by the use of Rule 16 of the Blocking of Access rules, which requests that privacy must be kept up if there should be an occurrence of any obstructing orders. This standard was challenged in the Shreya Singhal case however the Apex Court left this standard immaculate. For originators of substance and watchers to see that their substance has been requested to be obstructed by the government or its organization, the facilitating page must convey a warning of the request for impeding alongside reasons.
- S.C.R.621 2. MANU/SC/0006/1950:(1950) S.C.R.594
- MANU/SC/0394/2002:(2002) 3 S.C.R 294
- MANU/SC/0038/1972:(1973)2 S.C.R.757
- MANU/SC/0090/1961:(1962)3 S.C.R.842
- MANU/SC/0310/2010:(2010) 5 SCC 600
- 71 L. Ed. 1095
- Kameshwar Prasad v. State of Bihar and Ors[MANU/SC/0410/1962:1962supp.S.C.R.396]
- MANU/SC/3637/2006MANU/SC/3637/2006: 2006 (8) SCC 433,
- MANU/SC/1597/1994MANU/SC/1597/1994: (1994) 3 SCC 569
- MANU/USSC/0140/1926: 269 U.S. 385, 391 (1926)
- MANU/SC/0006/1950MANU/SC/0006/1950: (1950) SCR 594