Shreya Singhal v. Union of India

Shreya Singhal v.
Union of India
Shreya Singhal v. Union of India

INDEX
S.No Particulars P. No
1 LIST OF ABBREVIATION 1
2 ACTS 2
3 TABLE OF CASES 3
4 CASE DETAILS 4

5 5-20
5
Background of the case
6-7
Facts
7
Issues
8-15
Arguments raised by Petitioner
16
Respondent Arguments
17-19
Judgment
5 CASE ANALYSIS 20-28
6 PRESENT STATUS OF S. 66 A 28
7 BIBLIOGRAPHY 29-31
LIST OF ABBREVIATION
ABBREVIATION FULL FORM
Co. Company
Cr. Lj Criminal Law Journal
HC High Court
IT Information Technology
PUCL People's Union for Civil Liberties
S.C.R SUPREME COURT REPORTS
SC Supreme Court
ACTS
SCC Supreme Court Cases
1. Information
UOI Union of India Technology
Act, 2000,
US United States
No. 21 Act of
W.P Writ Petition Parliament,
2000 (India).
2. Indian Penal Code, 1860, No. 45 Act of Parliament, 1860 (India).
3. Criminal Procedure Code, 1973 No. 2 Act of Parliament, 1973 (India).
4. Kerala Police Act, 2011, No. 8 Act of 2011.
5. The Information Technology, 2000 No 21(Amendment) Act 2008 Act of Parliament,
2000 (India).
6. Indian Constitution,1949.
1
7. Information Technology (Procedure & Safeguards for Blocking for Access of

Information by Public) Rules 2009.
8. Information Technology (Intermediaries Guidelines) Rules, 2011.
TABLE OF CASES
CASE NAME P. No:
1. A.K. Roy v. Union of India, AIR [1950] S.C.R. 594. 10
2. Bennett Coleman & Co. & Ors. v. Union of India & Ors [1973] 2 10
S.C.R. 757
2
3. Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969) 14

14
4. Brij Bhushan & Anr. v. State of Delhi, [1950] S.C.R. 605
5. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) 15
6. Chintaman Rao v. The State of Madhya Pradesh, AIR [1950] S.C.R. 10
759
15
7. Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 S.C.R.769
8. Maneka Gandhi v. UOI, AIR 1978 SC 597. 25
9. PUCL V. UOI, 2019 28
10. Ranjit Udeshi v. State of Maharashtra [1965] 1 S.C.R. 65
15
11. Romesh Thappar v. State of Madras 9
12. S. Khushboo v. Kanniammal 71 L. Ed. 1095
13
13. Sakal Papers (P) Ltd. & Ors. v. Union of India
14. Terminiello v. City of Chicago 93 L. Ed. 1131 (1949) 10
15. The Secretary, Ministry of Information & Broadcasting v. Cricket 14
Association of Bengal & Anr (1995) SCC 2 161
14
16. Virginia v. Black 155 L. Ed. 2d 535 (2003)
17. Whitney v. California 71 L. Ed. 1095 14
Petitioner : Shreya Singhal
Respondents : Union of India
Ministry of Communications & IT

CASE DETAILS
Ministry of Law & Justice
Writ Petition No: 167 OF 2012
Citation
Represented : AIR 2015 SC 1523.
Petitioner Side
Bench : Justice Jasti Chelameswar
Justice Rohinton Fali Nariman.
Decided On : 24 March 2015
Decision by : Justice R.F. Nariman

3
BACKGROUND OF THE CASE
In the year of 2012 Shiv Sena leader Bal Thakerey was died. There was bandh declared by
the Shiv Sena People in Maharashtra state. Two young girls named Shaheen Dhada and
Renu Srinivasan expended their displeasure through Fb post.
4
"Every day thousands of people die. But still the world moves on... Just due to one
politician dead. A natural death. Everyone goes crazy... Respect is earned not given out,
definitely not forced. Today Mumbai shuts down due to fear not due to respect."
And Renu Srinivasan commented and shared the post
"Everyone knows it's done because of fear!!! We agree that he has done a lot of good
things. Also we respect him; it doesn't make sense to shut down everything! Respect can
be shown in many other ways!”
The both of the persons are arrested by the Mumbai police in 2012 under Section 66A of
IT Act1. The arrested persons are released later on and it was decided to close the criminal
cases against them yet the arrested attracted widespread public protest. It was the clear
recognize that the police has misused its power by invoking Section 66A inter alia
competing that it violate the freedom of speech and expression2
FACTS OF THE CASE
The petitioner is a law student and herein like cores of other citizens of this Country is a
user of the internet and of social networking sites such as Facebook and Twitter. Recent
activities involving action taken by various authorities under the Section 66A of the IT
Act, 2000 have left a chilling effect on the Petitioner and crores of other internet users. It is
1
Information Technology Act, 2000, No. 21 Act of Parliament, 2000 (India).
2
Mohd. Owais Farooqui, Aftab Alam, Shreya Singhal v. Union of India: Case Analysis, 1 ISSN: 2455-2194.
54, 54-56 (2015).
5
in this view, that the petitioner approached the Supreme Court under its extra ordinary
jurisdiction under Article 32 of the Constitution of India3.
1. In April 2012, a professor of chemistry from Jadavpur University in West Bengal, one
Sri Ambikesh Mahapatra, was arrested for posting a cartoon relating to a political figure..
2. In May 2012, two Air India employees were arrested by the Mumbai Police under inter
alia Sec. 66 of the IT Act for putting up contented on Facebook and Orkut which was
aligned with a trade union leader and a few politicians. They were in custody for 12 days.
3. In Oct 2012, a businessman named Mr. Ravi Srinivasan was arrested by the Police for
having made a allegation on a social networking site twitter against a politician from Tamil
Nadu.
4. In the year of 2012 Shiv Sena leader Bal Thakerey was died. There was bandh declared
by the Shiv Sena People in Maharashtra state. Two young girls named Shaheen Dhada and
Renu Srinivasan expended their displeasure through Fb post. The two persons were
arrested by Mumbai police.
Shreya Singhal filed a Public Interest Litigation in the Supreme Court of India, against the
Section 66A of the Information Technology Act, 2000 Ss. 66 A, 69 A, and section 79 of
the Information Technology Act of 2000 and S. 118 (d) of the KP Act 4 with respect to the
freedoms guaranteed in the provisions of Article 19 (1) (a) of the Indian Constitution5.
ISSUES RAISED
The following are the main issues challenged in this case.
3
WRIT PETITION (CIVIL) NO. OF 2012.
4
Kerala Police Act, 2011, No. 8 Act of 2011.
5
Indian Constitution,1949.
6
1. Whether the vague description of various acts constituting an offence under Section
66A of the IT Act is violative of the Article 19 (1) (a) of the Constitution and it is also
violative of the Article 14 and 21 of the Indian Constitution?
2. Whether the protection afforded to free speech by means of the bar contained in
Section 196 (1A) of the CrPC. to charging cognizance of an offence by courts in
absence of prior sanction by the Central or State Government or District Magistrate in
relation to offences u/s 153-A, 295-A or 505 (1) of the IPC 6 is rendered otiose in the
absence of some comparable bar on the authority of police to investigate, search,
seizure and arrest under Section 156 (1) and 41 of the CrPC7
3. Whether the chilling effect created by the frivolous invocations of criminal law
especially in cases involving free speech deserves to be negated by a judicial safety
valve such as an order as of a magistrate as a precondition to initiation of investigation
or arrest by the police?8
PETITIONER ARGUMENTS
1. Whether the vague description of various acts constituting an offence under Section
66A, S 69A and 79 of the IT Act is violative of the Article 19 (1) (a) of the
Constitution and it is also violative of the Article 14 and 21 of the Indian
Constitution?
6
Indian Penal Code, 1860, No. 45 Act of Parliament, 1860 (India).
7
Criminal Procedure Code, 1973 No. 2 Act of Parliament, 1973 (India).
8
Ibid.
7
The petitioner hereby submitted that section 66 A of the IT Act, 2000 would really be
a sinister form of censorship which impairs a core value restricted in Article 19(1) (a).
That is freedom of speech and expression guaranteed under constitution. “all citizens
shall have the right to freedom of speech and expression”.In addition to this above
section has made a chilling effect on the freedom of speech and expression guaranteed
under Indian constitution, as well the right of spectators is infringed as such chilling
effect would not give them the benefit of many shades of grey in terms of a range of
points of view that could be viewed over the internet.
 The Petitioners additionally challenged that their privileges under Articles 14 and 21
are penetrated in as much there is no intelligible differentia between the individuals
who utilize the web and the individuals who by words expressed or composed utilize
different modes of correspondence. There is no difference in printed media
communication and internet, someone since he utilizes a specific mechanism of
correspondence is itself a biased item and would fall foul of Article 14 regardless.
 The Petitioners argued that Section 66A was unconstitutional because its intended
guard protection against such annoyance, inconvenience, danger, obstruction, insult,
injury, criminal intimidation, or ill-will falls whatever mentioned under this section is
outside the purview of Article 19(2). They are also argued that the law was
unconstitutionally unclear and vague and it fails to specifically define its prohibitions.
 In addition to this creating an offence, Section 66A suffers from the vice of vagueness
for the reason that unlike the offence created by Section 66 of the same Act, none of
the aforementioned terms are even attempted to be defined and cannot be defined, the
consequence being that innocent persons are also roped in. Such persons are not told
obviously on which side of the line they fall; and it would be open to the authorities to
be as illogical and whimsical. In fact, a huge number of innocent people have been
curtailed their fundamental rights.
 The main object of the amendment act is hasty augment in the use of computer and
internet has given rise to new forms of crimes like publishing sexually explicit
8
materials in electronic form, video voyeurism and infringe of privacy and leakage of
data by intermediary, e-commerce frauds like personating commonly known as
Phishing, identity theft and offensive messages through communication services. So
the punitive provisions are necessary to be incorporated in the Information
Technology Act, the Indian Penal code, the Indian Evidence Act and the code of
Criminal Procedure to prevent such crimes.”9
 S. 69 A of the act is also violated s. 66 A and 79 as well as in connection with S 118

(d) of Kerala Police Act, because that is not comes under restriction imposed under
Art. 19(2) of the constitution.
Romesh Thappar v. State of Madras10
In this case court held that Freedom of speech lay at the foundation of all democratic
organizations.
Sakal Papers (P) Ltd. & Ors. v. Union of India11
The court held that the freedom of speech and expression of opinion is of supreme
importance under a democratic constitution which envisages changes in the composition of
legislatures and governments and must be preserved.
9
Karnika Seth, “IT Act 2000 vs. 2008- Implementation, Challenges, and the Role of Adjudicating Officers”, (last
access 19-4-2021), 2https://www.karnikaseth.com/it-act-2000-vs-2008-implementation-challenges-the-role-of-
adjudicating-officers.html.
10
Romesh Thappar v. State of Madras, AIR [1950] S.C.R. 594.
11
Sakal Papers (P) Ltd. & Ors. v. Union of India, AIR [1962] 3 S.C.R. 842.
9
Bennett Coleman & Co. & Ors. v. Union of India & Ors12
Court held that Freedom of speech and of the press is the “Ark of the Covenant of
Democracy” for the reason that public criticism is essential to the working of its
institutions.
A.K. Roy v. Union of India13
“Acting in any manner prejudicial to the maintenance of supplies and services essential to
the community” is an expression so vague that it is capable of wanton abuse. Court clearly
dealt about the wanton abuse.
Chintaman Rao v. The State of Madhya Pradesh14
Referred to previous in the judgment, it is clear that Section 66A randomly, very
excessively invades the correct of free speech and upsets the balance between such right
and the reasonable restrictions that may be imposed on such right.
2. Whether the protection afforded to free speech by means of the bar contained in
Section 196 (1A) of the Cr.P.C. to charging cognizance of an offence by courts in
absence of prior sanction by the Central or State Government or District Magistrate
in relation to offences u/s 153-A, 295-A or 505 (1) of the IPC 15 is rendered otiose in
the absence of some comparable bar on the authority of police to investigate, search,
seizure and arrest under Section 156 (1) and 41 of the Cr.P.C
12
Bennett Coleman & Co. & Ors. v. Union of India & Ors, AIR [1973] 2 S.C.R. 757.
13
A.K. Roy v. Union of India, AIR (1982) 1 SCC 271.
14
Chintaman Rao v. The State of Madhya Pradesh, AIR [1950] S.C.R. 759.
15
Indian Penal Code, 1860, No. 45 Act of Parliament, 1860 (India).
10
In that, if, for example, criminal offense is alleged, the safeguards available under
Section 199 CrPC. would not be to be had for a like offence committed under Section
66A. Such safeguard are that no court shall take cognizance of such an offence except
upon a grievance made by some person aggrieved by the offence and that such
complaint will have to be made within six months on or after the date on which the
offence is alleged to have been committed.
It is very clear to understand that Sections 95 and 96 of the Criminal Procedure Code
make known a certain degree of sensitivity to the fundamental right to free speech and
expression. If matter is to be seized on specific grounds which are relatable to the
theme conditions contained in Article 19(2), it would be open for persons affected by
such seizure to obtain a announcement from a HC 16 consisting of at least three Judges
that in fact publication of the so-called offensive matter does not in fact relate to any
of the particular subjects contained in Article 19(2).
Availability of several analogous provisions in IPC like S-124A (Sedition); S-295A

(intentionally insulting religion or religious belief); S-499 (Defamation); S-505
(Statements conducive to public mischief); S-509 (Insulting the modesty of a woman)
etc. raise a big question on the impact repealing of S-66A IT Act will have in securing
unbridled right to free speech. Cases of misuse of these sections of IPC are not
uncommon. To exemplify, S-124A, IPC should find application only if likelihood of
public disorder due to violence or incitement to violence is genuine.
However, reported cases of its gross misuse to suppress the voice of critics are not
uncommon. Likewise S-500 has also been misused quite often to silence the opinions
of dissent. The difference it will make is that cyber-crime victims will now have no
resort to prompt relief as the procedures under IPC are lot more laborious. The section
provided a quick relief and effective protective shield to genuine victims of
cybercrime. Repealing of this section has taken away this protective shield leaving
16
High Court.
11
genuine cybercrime victims prone to online harassment. It has led law enforcing
agencies toothless in dealing with the cyber-crime.
The root cause of dissent against S-66A actually lay in the discretion vested with the
police making it prone to misuse. Though the intentional lapses on the part of police in
implementing the ambiguous provisions of the act cannot be ignored, but the
probability of police failing genuinely to differentiate the harmless free speech from
the statements intended to create annoyance, insult or menace also cannot be ruled out.
Courts have the onerous responsibility of channelizing the law if it lacks directions.
The solution lay in framing objective guidelines against the arbitrary usage of the
provisions and educating the police about stringent enforcement of these guidelines.
Such guidelines have in fact already been issued by the Central Government
mandating prior permission of senior police officers before affecting arrest under this
section. If the court found these insufficient and did not have faith even in senior
police officers, directions could have been issued to suitably amend, objectivise and
reinforce these guidelines.
3. Whether the chilling effect created by the frivolous invocations of

criminal law especially in cases involving free speech deserves to be
negated by a judicial safety valve such as an order from a magistrate as a
prerequisite to initiation of investigation or arrest by the police?
12
 S. 66 A make has a “chilling effect” on the accurate freedom of expression. The

chilling effect cause by the quite wide lawmaking language of the said Section 66A is
already realism and not a far-fetched apprehension. A chilling effect is most certainly
violative of the sacrosanct freedom of speech and expression guaranteed by Article 19
(1) (a) of the Constitution. No adjacent relation with any of the eight subject matters
contained in Article 19(2).
 19(1)(2) which lays down reasonable Restrictions
 Sovereignty and integrity of the India

 Security of the State
 Friendly relations with foreign countries
 Public order
 Decency and morality
 Contempt of court
 Defamation
 Incitement to an offence
 S. Khushboo v. Kanniammal17
The right of freedom of speech and expression needs gratis free flow of opinions and
views necessary to support collective life.
 Whitney v. California18
Liberty should be treated as a means as well as an end and to justify suppression of
17
S. Khushboo v. Kanniammal, AIR 2010 5 SCC 600.
18
Whitney v. California,71 L. Ed. 1095.
13
free speech there should be a reasonable explanation to fear that serious evil will result
if such free speech is practiced.
 Brij Bhushan & Anr. v. State of Delhi19
An order made under Section 7 of the East Punjab Public Safety Act, 1949, was held
to be unconstitutional and void for the self-same reason.
 The Secretary, Ministry of Information & Broadcasting v. Cricket

Association of Bengal & Anr20
Limitations on the freedom of speech must be understood in the narrowest possible

terms.
“clear and present danger”. The test of “clear and present danger” has been used by
the U.S. Supreme Court in many varying situations and has been adjusted according to
varying fact situations. It appears to have been repeatedly applied in these cases
Terminiello v. City of Chicago,21 Brandenburg v. Ohio22, Virginia v.
Black23
Ranjit Udeshi v. State of Maharashtra24

In this case took a rather restrictive view of what would pass muster as not being
obscene. The muster test is the test that is cover up matters under Art 19(2) of the
constitution.
Chaplinsky v. New Hampshire25

19
Brij Bhushan & Anr. v. State of Delhi, AIR 1950 S.C.R. 605.
20
The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal & Anr (1995) SCC 2
161.
21
Terminiello v. City of Chicago, 93 L. Ed. 1131 (1949).
22
Brandenburg v. Ohio,23 L. Ed. 2d 430 (1969).
23
Virginia v. Black,155 L. Ed. 2d 535 (2003).
24
Ranjit Udeshi v. State of Maharashtra, [1965] 1 S.C.R. 65.
25
Chaplinsky v. New Hampshire,315 U.S. 568 (1942).
14
In this case clearly laid down the Incitement and hatred speech and what all are
attracts incitement to an offence.
Kedar Nath Singh v. State of Bihar26
In this case Court has struck down sections which are similar to S 66 A of the IT Act
in nature.
RESPONDENT'S ARGUMENTS.
The Legislature is in the most excellent position hold to address the requirements of
the people and the courts will only step in when a law is clearly violative of Part III of
the constitution that is guaranteed fundamental rights and there is presumption in
favour of Constitutionality of the law in question.27
26
Kedar Nath Singh v. State of Bihar [1962] Supp. 2 S.C.R.769.
27
Sunil Abraham, Shreya Singhal and 66A A Cup Half Full and Half Empty,15 Economic & Political Weekly.12,12-
15 (2015).
15
 Only mere a chance of abuse cannot be a justification to declare a provision invalid.

Indistinctness is not a ground to state a statute unconstitutional if it is otherwise
qualified and non arbitrary.
 Respondent clearly said there is an Intelligible Differentia between words expressed in

printed media as well as internet
 There is no geographical limit while using internet

 No prior censorship used in such media
 There is no boundary by using social media
 The matters are posted through social media is going on air
 Every person can access the material.
 Respondent argued that the aforesaid sections are comes under Reasonable restrictions
mentioned under Art 19( 2) of the constitution
 Doctrine of Severability can be applied here because there is no need for invalidate the
entire provision but it can be make invalid to the extent make unconstitutional.28
JUDGEMENT
The Court primary discussed three basic concepts in understanding the freedom of
expression: discussion, advocacy, and incitement that is discussed in the case Whitely V.
California. Court clearly laid , “a mere discussion or smooth advocacy of a particular cause
howsoever unpopular is at the spirit” of the right. 29 And, the law might restrain the freedom
only when a discussion or advocacy amounts to incitement.
28
Unnati Unnati Tripathi, Case Comment on Shreya Singhal v. Union of India, 2, JUS DICERE & CO.952,953-
954 (2018).
29
“WRIT PETITION (CRIMINAL) NO.167 OF 2012Judgement On Shreya Singhal v. UOI”, Para. 13, March
24, 2015.
16
As practical to the case in hand, the Court establish that Section 66A is capable of limiting
all forms of internet communications as it makes no distinction “flanked by mere
discussion or advocacy of a exacting point of view, which may be annoying or inopportune
or grossly offensive to some and incitement by which such words lead to an imminent
fundamental association with public disorder, security of State etc.”
The Court more additional held that, the law fails to found a clear proximate relation to the
security of public order. According to the Court, the charge of an offense under Section
66A is complete by sending a message for the purpose of causing annoyance or insult. As a
outcome, the law does not create difference between mass dissemination and dissemination
to only one person without requiring the message to have a clear tendency of disrupting
public order.
As to whether the Section 66A was a valid attempt to protect individuals from defamatory
statements from beginning to end online communications, the Court noted that the major
ingredient of defamation is “injury to reputation.” It held that the law does not anxiety this
objective because it also condemns offensive statements that may annoy or be inconvenient
to an person without affecting his reputation.30
The Court also held that the government unsuccessful to show that the law intends to stop
communications that incite the commission of an offense because “this is analysis of
simple causing of annoyance, inconvenience, danger etc., or being that it is grossly
offensive or having a menacing character are not offences under the Penal Code at all.”
As to petitioners’ confront and challenges the vagueness, the Court followed the U.S. legal
binding precedent, which holds that “where no sensible standards are laid down to define
guilt in a Section which creates an offense, and where no clear guidance is given to either
law enduring citizens or to authorities and courts, a Section which creates an offense and
which is vague have to be struck down as being arbitrary and difficult to deal with.” The
Court establish that Section 66A leaves a lot of terms open-ended and undefined, therefore
making the statute void for vagueness.
30
Id.
17
The Court also addressed whether Section 66A is capable of striking chilling effect on the
right to freedom of expression. It held that since the provision fails to define terms, such as
inconvenience or annoyance, “a very large number of protected and innocent speech”
could be curtailed.31
The Court also renowned the intelligible difference flanked by information transmitted
through internet and other forms of speech, which permits the government to create divide
offenses related to online communications. Accordingly, the Court rejected petitioners’
disagreement that Section 66A was in violation of Article 14 of the Constitution against
discrimination.
The Court declined Petitioners’ challenge of confront on the ground of procedural

unreasonableness because the law was previously declared unconstitutional on substantive
grounds. It also found Section 118(d) of the Kerala Police Act to be unauthorized as
applied to Section 66A.
Based on the over reasons, the Court invalidated Section 66A of ITA in its entirety as it
violated the right to freedom of expression certain under Article 19(1)(a) of the
Constitution of India.
The Court held that the provision of Section 66A of the IT Act is derogative to the Article
19(1)(a) and as such it is an arbitrary provision which breaches the right of citizen to have
freedom of speech and expression of their views on internet. As such the provision anxious
is constitutionally untrue and as such struck down in its entirety.
Section 118(d) of the Kerala Police Act, as causing annoyance in an offensive manner
suffers from the similar type of imprecision and over breadth, that led to the invalidity of
Section 66A, and for the reasons given for striking down Section 66A, Section 118(d) also
violates Article 19(1)(a) and not being a reasonable restriction on the said right and not
being saved under any of the subject matters contained in Article 19(2) is hereby declared
to be unconstitutional.
31
P.M. BAKSHI, The Constitution of India, LEGISLATIVE DEPARTMENT 1;9-10 (2015).
18
Court also viewed the Rules 3(2) and 3(4) on two basic grounds. Firstly, the intermediary
is called upon to exercise its own judgment under sub-rule (4) and
then disable information that is in contravention of sub-rule (2), when intermediaries by
their extremely definition are only persons who offer a neutral platform through which
people may interact with each other over the internet. Further, no safeguards are provided
as in the 2009 Rules made under Section 69A.
The learned Additional Solicitor General informed us that it is a common practice

universal for intermediaries to have user agreements containing what is stated in Rule 3(2).
However, Rule 3(4) needs to be read down in the same manner as Section 79(3)(b). The
information spoken of in the said sub-rule must only be through the medium of a court
order. subject matter to this, the Information Technology (Intermediaries
Guidelines) Rules, 2011 are valid.
JUDGEMET ANALYSIS
In my opinion the judgment of this case is vastly significant in the Supreme Court’s history
for many reasons. In a rare occasion, Supreme Court has adopted the extreme step of
declaring a censorship law passed by Parliament as altogether illegitimate. The Judgment
has better than before the scope of the right obtainable to us to express ourselves freely,
and the limited space given to the state in preventive this freedom in only the most
exceptional of situation. Justice Nariman has tinted that the liberty of thought and
expression is not just an inspiring ideal. It is also “a cardinal value that is of paramount
significance under our constitutional scheme.”
19
The section acquired great infamy and invited serious censure after a rash of arrests under
S. 66 A and related provisions. The arrest by the Mumbai Police of two girls in just for
expressing their displeasure at a bandh call given on Bal Thackerays‘s death received
community backlash. Many other cases of arrest under the necessities of this act followed
for innocent transmission and dissemination of online content.
These include arrests of Manoj Oswal for the trouble caused to relatives of Sharad Pawar;
Prof. Ambikesh Mahapatra of Jadavpur University for redeployment a cartoon of Mamta
Banerjee; Ram Srinivasan for an allegedly defamatory tweet against son of Union Minister
P. Chidambaram; two employees of Air India for allegedly defamatory remarks on
Facebook against a politician; and Aseem Trivedi for posting cartoons lampooning the
Parliament.
Arrest of a young girl student for posting supposed offensive comments attributable to
Azam Khan, a UP state minister on the social media shocked and enraged the civil society.
This occurrence led to filing of a number of petitions challenging the constitutional validity
of the section alleging it to be violative of fundamental right of speech and expression
under Article 19 of the constitution by NGOs, civil right activists and individuals.
First such PIL was filed by a young law student, Shreya Singhal. Article 19 (1) (a) of the
Constitution provides all citizens the right to freedom of speech and expression. However
this right is restricted by Article 19 (2) which vests the power in the State to make any law
that may impose reasonable restrictions on this right on grounds including the interests of
the sovereignty and integrity of the country, the security of the State, friendly relations
with foreign States, to maintain public order, decency and morality or in relation to
defamation or incitement to an offence etc.
Freedom of Speech and Expression
The main issue raised here, whether Section 66A of ITA violated the right to freedom of
expression guaranteed under Article 19(1) (a) of the Constitution of India. As an exception
to the right, Article 19(2) permits the government to impose “reasonable restrictions . . . in
the interests of the sovereignty and integrity of India, the security of the State, friendly
20
relations with foreign States, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offense.”
As per my view point’s Petitioners rightly argued that Section 66A was unconstitutional
because its intended protection against annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, or ill-will falls outside the purview of Article 19(2).
They also argued that the law was unconstitutionally vague as it fails to specifically define
its prohibitions. In addition, they contended that the law has a “chilling effect” on the right
to freedom of expression. The Respondent defended the constitutional validity of Section
66 A and contended that the legislature is in the best position to understand and appreciate
the needs of the people. The court will declare a provision unconstitutional only when it
clearly infringes with Part III of Constitution which was not the case with Section 66 A of
the Constitution. The next contention raised is that mere possibility of abuse of this section
by the police authorities could not be a ground to declare the section inconsistent.
The Supreme Court also accurately agreed with the arguments of petitioner and held that
Section 66 A has a chilling effect on Freedom of Speech and Expression and the words
used therein do not form the basis for imposing Reasonable Restriction on the freedom.
The loose language of Article 66 A may cause arbitrariness and hence would do harm and
injustice to the society and so it needs to be stuck down.
The court also made distinction between “Hate Speech & Free Speech. Hate Speech is
subjective in nature. Any innocent comment cannot be put under the preview of Hate
Speech. The court referred to the three concepts which are fundamental in the concept of
Freedom of Speech – Discussion, Advocacy Incitement. It is when the discussion or
advocacy on a topic reaches a limit of incitement to offence the restriction on freedom
applies.
The decision has highlighted and saved the liberty of speech and expression given to
people under article19 (1) (a) of Indian Constitution and also restraining state from random
apply of authority 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
rational and reasonable restriction on fundamental right and freedom given by Indian
21
constitution. But it is missing to implore the principle of clearness and transparency for
rules to block the website. Needs some further interrogation and fine change in regard to
viewers right as he/she ought to know why state is not allowing them to have certain
information and so as to cause can be challenged by the viewers However, the Apex Court
has put a lot of reliance in technical and complicated government process based on dicey
understanding of the capability and capacity of the diverse parties involved. 32
For example, the law concerning content-blocking procedure has been declared effective
on the belief and presumption that the blocking of website rules (2009) gives a
rational chance and occasion to be heard and to challenge an unconstitutional blocking
order.
It presumes that the originator of content will be contacted and knowledgeable about the
blocking of his or her content and a reasonable occasion will be given to challenge the
blocking of the content. Secondly, the assumption that the intermediary will give reason
and preserve the content before the anxious government body. Both assumptions are
virtually 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 foreign country or can lack the
belongings to argue and pursue his/her case. Intermediaries that are here Fb or may be
Google will not rationally defend the contented since they prefer to avoid spending
resources on protecting third-party content. The rising impact of this is that the information
available to access will continue to be affected by unreasonable government blocking
orders.
The Court also held that the government failed to show that the law intends to prevent
communications that incite the commission of an offense because “the mere causing of
annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing
character are not offences under the Penal Code at all.” As to petitioners’ challenge of
vagueness, the Court followed the U.S. judicial precedent, which holds that “where no
32
Ibid.
22
reasonable standards are laid down to define guilt in a Section which creates an offense,
and where no clear guidance is given to either law abiding citizens or to authorities and
courts, a Section which creates an offense and which is vague must be struck down as
being arbitrary and unreasonable.” The Court found that Section 66A leaves many terms
open-ended and undefined, therefore making the statute void for vagueness.
The blocking modus operandi continues to be together with this in secrecy by the
application of Rule 16 of the Blocking of right of entry rules, which stress that privacy
must maintained in case of any blocking orders. This rule was contested in the Shreya
Singhal case but the Apex Court left this rule intact. For originator of satisfied and viewers
to become aware of that their satisfied has been ordered to be blocked by government or its
agency, the hosting page have to carry a notification of the order for blocking the length of
with reasons.
Chilling effect on the right to freedom of expression.
While considering the effect, The Court also addressed whether Section 66A is capable of
imposing chilling effect on the right to freedom of expression. It held that because the
provision fails to define terms, such as inconvenience or annoyance, “a very large amount
of protected and innocent speech” could be curtailed. The other contention raised by the
respondent is that the vagueness of the language cannot be a ground to declare the statute
as unconstitutional when the statute is otherwise legislatively competent and non-arbitrary.
Moreover, the language of the section incorporates all the conditions through which a
person could use internet to infringe the right of others.
Possibility of an act being abused is not a ground to test its validity:
23
In this case, it is the converse proposition which would really apply if the learned
Additional Solicitor General’s argument is to be accepted. If Section 66A is otherwise
invalid, it cannot be saved by an assurance from the learned Additional Solicitor General
that it will be administered in a reasonable manner. Governments may come and
Governments may go but Section 66A goes on forever. An assurance from the present
Government even if carried out faithfully would not bind any successor Government. It
must, therefore, be held that Section 66A must be judged on its own merits without any
reference to how well it may be administered.
Applicability of Rule of Severability
The Supreme Court applied the doctrine of severability and only Section 66- A which was
inconsistent with Part III of the Constitution was declared invalid. Only this section was
declared as unconstitutional the rest of the act was held constitutional.
Mr. Tushar Mehta took in Additional Solicitor General shielded the defendability of
Section 66A of the Act. He contends that the legislative body is in the best position to
comprehend and value the requirements of the general people. The Court will, along these
lines, meddle with the administrative procedure just when a statute is plainly violative of
the rights gave on the subjects under Part-III of the Constitution.
Intelligible Differentia
The court denied the contention of the petitioner that there was no intelligible differentia
between medium of communication through print and live speech when compared with
speech through internet. There is an intelligible differentia as internet give a platform to
express one’s views by paying a nominal cost or even sometimes no cost as opposed to
other medium of transmission of information. With the help of internet, the information
reaches to millions of million in just few seconds.
Thus, this contention of petitioner which challenges Article 14 of the Constitution fails. As
per my view points, it is correct because there is an difference in printed media and
internet, in my analysis I think that the respondent side clearly dealt about this arguments
and in very clear manner identified the main differences.
24
Article 19 of the Constitution of India guarantees the right to freedom of speech and
expression. This right was assertively recognized in Maneka Gandhi v. Union of India 33,
when the Apex Court held that this right has no limitation as to boundary and moves with a
citizen not only in India but also abroad. The Court again in Romesh Thappar v. State of
Madras34 observed that the right to receive and communicate information is integral to the
Freedom of speech and expression. Observing that respecting people's views and feedback
is critical to the efficient functioning of the democratic institution, it held in Bennett
Coleman v Union of India that freedom of speech and of the press is the ark of the
covenant of democracy. Similarly Freedom of speech and expression was recognized to be
one of the most important principles laid down in Constitution in Sakal Papers v. Union
of India35 and Khushboo v. Kanniammal and Anr.36
Procedural Unreasonableness
It is clear that Sections 95 and 96 of the Criminal Procedure Code reveal a certain degree
of sensitivity to the fundamental right to free speech and expression. If matter is to be
seized on specific grounds which are relatable to the subject matters contained in Article
19(2), it would be open for persons affected by such seizure to get a declaration from a
High Court consisting of at least three Judges that in fact publication of the so-called
offensive matter does not in fact relate to any of the specified subjects contained in Article
19(2).
Intermediary rules and Guidelines
Rules 3(2) and 3(4) on two basic grounds. Firstly, the intermediary is called upon to
exercise its own judgment under sub-rule (4) and then disable information that is in
contravention of sub-rule (2), when intermediaries by their very definition are only persons
33
Maneka Gandhi v. UOI, AIR 1978 SC 597.
34
Supra note 10.
35
Supra note 11.
36
Supra note 17.
25
who offer a neutral platform through which persons may interact with each other over the
internet. Further, no safeguards are provided as in the 2009 Rules made under Section 69A.
Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual
knowledge that a court order has been passed asking it to expeditiously remove or disable
access to certain material must then fail to expeditiously remove or disable access to that
material. This is for the reason that otherwise it would be very difficult for intermediaries
like Google, Facebook etc. to act when millions of requests are made and the intermediary
is then to judge as to which of such requests are legitimate and which are not.
With respect to Intermediary, the Court held that Intermediaries are required to take down
or block content upon notification – the court has clarified that such takedown will only be
upon receipt of an order from a government agency or a court and not at the discretion of
the intermediary or on receipt of request by an affected person.
It is also contended that by this Judgment, the Court has killed the due diligence obligation
of an Intermediaries in India to a great extent, as now Intermediaries instead of being
diligent enough in conducting due diligence pertaining to the offensive matter on their
websites, will wait for a government notification or order to remove them from their site.
Based on the forgoing reasons, the Court invalidated Section 66A of ITA in its entirety as
it violated the right to freedom of expression guaranteed under Article 19(1) (a) of the
Constitution of India.
PRESENT STATUS OF S. 66A

After passing the judgement many of the persons are arrested by invoking S. 66 A of the
Information Technology Act. The Supreme Court issued a notice to the Centre on the use
26
of Section 66A of the IT Act that was scrapped several years ago and said that it is
shocking that the judgment striking down the law has not been implemented even now.
The notice came during the hearing of a plea filed by PUCL 37 that pointed out that even
after 7 years of the law being struck down, as of March 2021, a total of 745 cases are still
pending and active before the district courts in 11 states, wherein the accused persons are
being prosecuted for offences under Section 66A of the IT Act.
The plea is based on data collated by the Internet Freedom Foundation, which has been
tracking cases under the "Zombie provisions" which have been declared invalid but are
still being used by police to prosecute people.
It shows that even after March 2015, after the Shreya Singhal Judgment which struck down
Section 66A, 1,307 cases were registered under the law.
The Attorney General of India, KK Venugopal informed the Supreme Court that the
"statute books" still carry Section 66A of the IT Act, which was struck down as
unconstitutional.38
"If your lordships see the IT Act book, there is only a small asterisk and a footnote that
says deleted by order of Supreme court. No one reads the footnote," said Venugopal.
Then PUCL V UOI39 file a case in the year of 2019 SC pass an order and direct to send
this judgement all lower courts and afterwards charged penalty if any authority charged
37
Peoples Union For Civil Liberties.
38
India Today, Supreme Court 'shocked' over scrapped Section 66A law's use in FIRs, issues notice to Centre (Jully 5, 2021),
https://www.indiatoday.in/law/story/section-66a-of-it-act-still-in-use-supreme-court-notice-to-centre-1824015-2021-07-05.
39
People’s Union For Civil Liberties v. UOI & 0rs,2019.
27
any person under this section. After passing the judgement many cases are reported and
court order to take adequate measures40
BIBLIOGRAPGHY
JOURNALS
 Unnati Tripathi, Case Comment on Shreya Singhal v. Union of India, 2, JUS DICERE &
CO.952,953-954 (2018).
 Mohd. Owais Farooqui, Aftab Alam, Shreya Singhal v. Union of India: Case
Analysis, 1 ISSN: 2455-2194. 54, 54-56 (2015).
 Bindu Sharma & Bharti Sharma, Repeal of Section 66a, I.T. Act: A Critical Appraisal,7
ISSN- 2394-5125,3396,3397.
40
The Economic Times, SC says misuse of Sec 66A must stop; issues notices to states, HCs (2021).
https://economictimes.indiatimes.com/news/politics-and-nation/sc-says-misuse-of-sec-66a-must-stop-issues-notices-
to-states-hcs/articleshow/84984789.cms.
28
 P.M. BAKSHI, The Constitution of India, LEGISLATIVE DEPARTMENT 1;9-10

(2015).
 Sunil Abraham, Shreya Singhal and 66A A Cup Half Full and Half Empty,15 Economic
& Political Weekly.12,12-15 (2015).
INTERNET
 Karnika Seth, “IT Act 2000 vs. 2008- Implementation, Challenges, and the Role of
Adjudicating Officers”, (last access 19-4-2021), 2https://www.karnikaseth.com/it-act-
2000-vs-2008-implementation-challenges-the-role-of-adjudicating-officers.html.
E- PAPER
The Economic Times, SC says misuse of Sec 66A must stop; issues notices to states,
HCs (Aug 2, 2021), 2021), https://economictimes.indiatimes.com/news/politics-and-
nation/sc-says-misuse-of-sec-66a-must-stop-issues-notices-to-states-
hcs/articleshow/84984789.cms.
India Today, Supreme Court 'shocked' over scrapped Section 66A law's use in FIRs, issues notice to
Centre (Jully 5, 2021), https://www.indiatoday.in/law/story/section-66a-of-it-act-still-in-use-supreme-court-
notice-to-centre-1824015-2021-07-05.
JUDGEMENT
 “WRIT PETITION (CRIMINAL) NO.167 OF 2012Judgement On Shreya Singhal

V. UOI”, March 24, 2015.
29
 WRIT PETITION (CRIMINAL) NO. 199 OF 2013 Judgement on People’s Union

For Civil Liberties v. UOI. 2018.
ACTS
1. Information Technology Act, 2000, No. 21 Act of Parliament, 2000 (India).

2. Indian Penal Code, 1860, No. 45 Act of Parliament, 1860 (India).
3. Criminal Procedure Code, 1973 No. 2 Act of Parliament, 1973 (India).
4. Kerala Police Act, 2011, No. 8 Act of 2011.
5. The Information Technology, 2000 No 21(Amendment) Act 2008 Act of Parliament,
2000 (India).
6. Indian Constitution,1949.
7. Information Technology (Procedure & Safeguards for Blocking for Access of
Information by Public) Rules 2009.
8. Information Technology (Intermediaries Guidelines) Rules, 2011.
TABLE OF CASES
1. A.K. Roy v. Union of India, AIR [1950] S.C.R. 594.

2. Bennett Coleman & Co. & Ors. v. Union of India & Ors [1973] 2 S.C.R. 757
3. Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969)
4. Brij Bhushan & Anr. v. State of Delhi, [1950] S.C.R. 605.
5. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
6. Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 S.C.R.769
7. Maneka Gandhi v. UOI, AIR 1978 SC 597.
8. PUCL V. UOI, 2019
30
9. Ranjit Udeshi v. State of Maharashtra [1965] 1 S.C.R. 65

10. Romesh Thappar v. State of Madras
11. S. Khushboo v. Kanniammal 71 L. Ed. 1095
12. Sakal Papers (P) Ltd. & Ors. v. Union of India
13. Terminiello v. City of Chicago 93 L. Ed. 1131 (1949)
14. The Secretary, Ministry of Information & Broadcasting v. Cricket Association of
Bengal & Anr (1995) SCC 2 161
15. The Secretary, Ministry of Information & Broadcasting v. Cricket Association of
Bengal & Anr (1995) SCC 2 161
16. Virginia v. Black 155 L. Ed. 2d 535 (2003)
17. Whitney v. California 71 L. Ed. 1095.
31

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Shreya Singhal v.

Shreya Singhal v. Union of India

Shreya Singhal v. Union of India

5 CASE ANALYSIS 20-28

ABBREVIATION FULL FORM

Cr. Lj Criminal Law Journal

PUCL People's Union for Civil Liberties

S.C.R SUPREME COURT REPORTS

7. Information Technology (Procedure & Safeguards for Blocking for Access of

CASE NAME P. No:

1. A.K. Roy v. Union of India, AIR [1950] S.C.R. 594. 10

3. Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969) 14

Petitioner : Shreya Singhal

Respondents : Union of India

Ministry of Communications & IT

Writ Petition No: 167 OF 2012

Bench : Justice Jasti Chelameswar

Justice Rohinton Fali Nariman.

Decided On : 24 March 2015

Decision by : Justice R.F. Nariman

BACKGROUND OF THE CASE

And Renu Srinivasan commented and shared the post

FACTS OF THE CASE

The following are the main issues challenged in this case.

 S. 69 A of the act is also violated s. 66 A and 79 as well as in connection with S 118

Romesh Thappar v. State of Madras10

Sakal Papers (P) Ltd. & Ors. v. Union of India11

A.K. Roy v. Union of India13

Chintaman Rao v. The State of Madhya Pradesh14

Availability of several analogous provisions in IPC like S-124A (Sedition); S-295A

3. Whether the chilling effect created by the frivolous invocations of

 S. 66 A make has a “chilling effect” on the accurate freedom of expression. The

 19(1)(2) which lays down reasonable Restrictions

 Sovereignty and integrity of the India

Liberty should be treated as a means as well as an end and to justify suppression of

 Brij Bhushan & Anr. v. State of Delhi19

 The Secretary, Ministry of Information & Broadcasting v. Cricket

Limitations on the freedom of speech must be understood in the narrowest possible

Ranjit Udeshi v. State of Maharashtra24

Chaplinsky v. New Hampshire25

Kedar Nath Singh v. State of Bihar26

 Only mere a chance of abuse cannot be a justification to declare a provision invalid.

 Respondent clearly said there is an Intelligible Differentia between words expressed in

 There is no geographical limit while using internet

The Court declined Petitioners’ challenge of confront on the ground of procedural

The learned Additional Solicitor General informed us that it is a common practice

Freedom of Speech and Expression

Chilling effect on the right to freedom of expression.

Possibility of an act being abused is not a ground to test its validity:

Applicability of Rule of Severability

Intermediary rules and Guidelines

PRESENT STATUS OF S. 66A

 P.M. BAKSHI, The Constitution of India, LEGISLATIVE DEPARTMENT 1;9-10

 “WRIT PETITION (CRIMINAL) NO.167 OF 2012Judgement On Shreya Singhal

 WRIT PETITION (CRIMINAL) NO. 199 OF 2013 Judgement on People’s Union

1. Information Technology Act, 2000, No. 21 Act of Parliament, 2000 (India).

1. A.K. Roy v. Union of India, AIR [1950] S.C.R. 594.

9. Ranjit Udeshi v. State of Maharashtra [1965] 1 S.C.R. 65

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