2015 – 2020

CONSTITUTIONAL LAW

CASE COMMENT:
Shreya Singhal v. Union of India.

CASE DETAILS:
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CASE: Shreya Singhal v. Union of India

CITATION: MANU/SC/0329/2015

APPELENTS: Shreya Singhal

RESPONDENTS: Union Of India

JUDGES: Jasti Chelameswar and Rohinton Fali Nariman, JJ.

CASE DECIDED ON: 24 March 2015

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 TABLE OF CONTENTS

SL.NO TOPIC PAGE

. NO.
1 Introduction 4

2 Facts of the Case 5

3 Questions of Law 6

4 Provisions 7

5 Judgement 8

6 Question 1 9

7 Question 2 12

8 Question 3 14

9 Conclusion 17

10 Bibliography 19

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INTRODUCTION:
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The Constitution of India is the supreme law of India. It lays down the framework defining
fundamental political principles, establishes the structure, procedures, powers and duties of
government institutions and sets out fundamental rights, directive principles and the duties of
citizens. It is the longest written constitution of any sovereign country in the world. The
nation is governed on the basis of this Constitution. B. R. Ambedkar is regarded as the chief
architect of the Indian Constitution.

The constitution of India imparts constitutional supremacy and not parliamentary

supremacy as it is not created by the Parliament but created by a constituent assembly and
adopted by its people with a declaration in the preamble to the constitution. Parliament
cannot override the constitution.

The Constitution was adopted by the Constituent Assembly on 26 November 1949, and came
into effect on 26 January 1950. The date of 26 January was chosen to commemorate
the Purna Swaraj declaration of independence of 1930. With its adoption, the Union of
India officially became the modern and contemporary Republic of India and it replaced
the Government of India Act 1935 as the country's fundamental governing document. To
ensure constitutional autochthony, the framers of constitution repealed the prior Acts of the
British Parliament via the Article 395 of the constitution. India celebrates the coming into
force of the constitution on 26 January each year as Republic Day.

The Constitution declares India a sovereign, socialist, secular, democratic republic, assuring

its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them.

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FACTS OF THE CASE:
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In April 2012, Shri Ambikesh Mahapatra, a chemistry professor from Jadavpur University in
West Bengal, posted a cartoon concerning a political figure from the state of West Bengal on
a social networking site and got arrested.

A few days later, in May 2012, V Jaganatharao and Mayank Sharma, who were employed
with Air India were kept in custody for 12 days on being arrested for putting up content
against a trade union leader and some politicians on Facebook and Orkut in Mumbai.

Subsequent to this case, a businessman in Puducherry, Ravi Srinivasan invited police arrest
against himself when he alleged a political figure from state of Tamil Nadu on Twitter in
October, 2012.

Another such pestiferous event was the arrest of a class 11 student in Uttar Pradesh
“objectionable comments” attributable to a State Minister on Facebook.

In a series of such events, in November 2012, Ms Shaheen Dadha, a 21-year old girl was
arrested by the Mumbai Police for questioning and expressing her displeasure at a bandh
(shutdown) in the city called on the demise of a political leader on the social networking site
Facebook. Her friend, Renu Srinivasan who ‘liked’ and shared the comment was also arrested
by Thane Police. The arrested women were released later on and it was decided to close the
criminal cases against them yet the arrests attracted widespread public protest. 

All these arrests had a single thread running through them - Section 66A of the Information
Technology Act, 2000 (hereinafter referred to as ‘the Act’), under which all these people
were booked. A number of petitions under Article 32 of the Constitution, challenging the
validity and constitutionality of provision of Section 66A of the Act, were filed in the
Supreme Court. These petitions were collectively settled by the Hon’ble Supreme Court of
India in the present case. The petitioner herein, like crores of other citizens of India is a user
of internet and social networking sites like Facebook, Twitter, Orkut etc. The pith of the
petition was the violation of Fundamental Rights of freedom of speech and expression
guaranteed provided by Article 19(1)(a) of the Constitution of India.

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QUESTIONS OF LAW:
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1. Whether Section 66A of the Information Technology Act, 2000 falls under the ambit
of reasonable restrictions imposed under Article 19(2) on the Fundamental Right of
freedom of speech and expression guaranteed under Article 19(1)(a) of the
Constitution of India?

2. Whether Section 66A and 69A of the Information Technology Act, 2000 violate the
Fundamental Right to equality guaranteed under Article 14 of the Constitution of
India?

3. Whether the procedure established by law to deprive a person of his life or liberty
under Article 21 of the Constitution of India require an order from the Magistrate as a
prerequisite to initiation of investigation or arrest by the police in matters of free
speech invoking criminal law?

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PROVISIONS:
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Following provisions are applicable to the present case:

 Section 66A of The Information Technology Act, 2000

 Section 69A of The Information Technology Act, 2000
 Section 41 of the Code of Criminal Procedure
 Section 156(3) of the Code of Criminal Procedure
 Section 202 of the Code of Criminal Procedure
 Preamble of the Constitution of India
 Article 14 of the Constitution of India
 Article 19(1)(a) of the Constitution of India
 Article 19(2) of the Constitution of India
 Article 21 of the Constitution of India

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JUDGEMENT:
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Justice Rohintan Fali Nariman and J Chelameswar decided upon the matter of Shreya Singhal
v Union of India. The batch of writ petitions filed under Article 32 of the Indian Constitution
concerns with Fundamental Right of speech and expression guaranteed under Article 19(1)(a)
of the Constitution of India, immediate cause of concern being Section 66A of the
Information Technology Act, 2000.

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QUESTION 1:
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Whether Section 66A of the Information Technology Act, 2000 falls under the ambit of
reasonable restrictions imposed under Article 19(2) on the Fundamental Right of
freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution
of India?

__________________________________________________________________________

Section 66A of the Information Technology Act, 2000 is set out herein below:

"66-A. Punishment for sending offensive messages through communication service, etc.-
Any person who sends, by means of 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 for the purpose of causing 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 for the purpose of causing 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 the purposes of 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."

___________________________________________________________________________

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It was argued by the Petitioners that the language of the section is wide, vague and incapable
of being judged on objective standards. No definite meaning has been assigned to the terms
‘offensive’, ‘menacing’, ‘annoyance’, ‘inconvenience’, ‘danger’, ‘obstruction’ and ‘insult’ in
the IT Act, General Clauses Act or any other legislation. It was held by the Court in A.K. Roy v
Union of India1 that “the impossibility of framing a definition with mathematical precision
cannot either justify the use of vague expressions or the total failure to frame any definition at
all which can furnish by its inclusiveness at least, a safe guideline for understanding the
meaning of the expressions used by the legislature.”

 The learned council defending the validity of Section 66A, Mr. Tushar Mehta, argued that a
presumption of constitutionality lies in favour of any statute made by the Legislature. Also,
that the right to freedom of speech and expression is not absolute right conferred upon people
but can be subjected to reasonable restrictions under Article 19 (2) of the Constitution of
India.

___________________________________________________________________________

Article 19(2) states:

"Article 19. Protection of certain rights regarding freedom of speech, etc.- (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 in relation to contempt of court, defamation or incitement to an offence."

___________________________________________________________________________

The Court held that there is a difference between ‘discussion’, ‘advocacy’ and ‘incitement’.
U.S. Supreme Court Justice Holmes’ famous articulation of the market place of ideas 2 was
referred to by the Court, thereby inferring that in order for the state to restrict speech, it has to
meet the standard of ‘incitement’ and causal link to the disturbance of public order. It also
held that in order to be an offence under Section 66A, the presence of mens rea is of utmost
1
1982 1 SCC 271
2
Abrams v. United States, 250 US 616 (1919)

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importance. However, the provision does not contain any such ingredient. Mere ‘discussion’
or ‘advocacy’ is embedded in the essence of Article 19(1)(a); but once it reaches the level of
‘incitement’, Article 19(2) comes into play and speech may be slashed. Nonetheless, the
Supreme Court stressed that in curtailing freedom of speech, the restrictions have to be
proximately related to one of the eight designated subject matters contained in Article 19(2).
The expressions like "annoying," "grossly offensive," "menacing,", "causing annoyance" etc
cannot be saved by Article 19(2).

Therefore, the Supreme Court agreed with the Petitioners on the view that none of the
grounds contained in Section 19(2) served as legitimate defences to the validity of Section
66A of the Information Technology Act, 2000.  Justice Nariman stated:-

“Any law seeking to impose a restriction on the freedom of speech can only pass muster if it
is proximately related to any of the eight subject matters set out in Article 19(2).” Thus, the
Court finally, held the provision of section 66A of the Act as derogatory to the spirit of
Article 19(1)(a) declaring it to be an arbitrary provision which breaches the right of citizen to
the have freedom of speech and expression of their views via internet media.

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QUESTION 2:
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Whether Section 66A and 69A of the Information Technology Act, 2000 violate the
Fundamental Right to equality guaranteed under Article 14 of the Constitution of
India?

The Petitioners contended that Section 66A is also violative of the Fundamental Right to
equality guaranteed under Article 14 inasmuch there should be no difference between the
people who use the internet and those who by words, spoken or written use other mediums of
communication. To punish somebody on the ground of usage of particular medium of
communication is discriminatory in itself and would fall foul of Article 14 in any case.
In light of the Article 14 challenge, the court found that the web as a medium is adequately
distinct from other media by reason of its wide reach and simple entry (without difficult
expenses or publication channels) in order to constitute a coherent differentia along these
lines allowing web focused regulations. In case of mediums like print media, TV and movies,
it is comprehensively impractical to attack security of unwilling persons. While in the event
of a web, it is anything but difficult to attack upon the protection of any individual and along
these lines abusing his rights directly under Article 21 of the Constitution of India. 

By its very nature, in the mediums like daily paper, magazine, TV or a film, it is unrealistic to
sexually hassle somebody, shock the unobtrusiveness of anybody, use unsatisfactory grimy
dialect and summon shared craze which would prompt serious social disorder. While on
account of a web, it is effectively conceivable to do as such by a mere click of a button with
no topographical confinements while guaranteeing secrecy of the guilty party practically in a
majority of the cases. 

By the very way of the medium, the width and range of web is complex as against daily paper
and movies. The said mediums have inbuilt restrictions i.e. a man will need to
purchase/obtain a daily paper and/or will need to go to a theater to watch a motion picture.
For TV likewise one needs no less than a room where a TV is set and can just watch those

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stations which he has subscribed and that too just at once where it is being broadcasted .
While in the event of a web a man manhandling the web, can submit an offense from
wherever at his preferred time and keeping up his namelessness in all cases.
The court then maintained the procurements identified with site obstructing were likewise
for test. Section 69A permits the Central government or any officer authorised in this regard,
to direct an intermediary to block access to the public to any website on the ground that it is
‘necessary or expedient’ to do so in the interest of:

(i) the sovereignty and integrity of India,

(ii) defence of India,
(iii) security of the State,
(iv) friendly relations with foreign states,
(v) public order or
(vi) preventing incitement to a cognizable offence relating to the above.

It is applicable to note that none of these classifications would incorporate licensed

innovation encroachment. The administration passed the Information Technology (Procedure
and Safeguards for Blocking for Access of Information by Public) Rules, 2009 to
operationlise a formal framework for site obstructing under Section 69A.
The Court upheld Section 69A and these standards on the ground that the procurements were
barely drawn and that detailed strategy set down under these Rules is adequate protection
against the use of the law to check reasonable discourse. Further, it likewise held that an extra
security since "reasons have to be recorded in writing in such blocking order so that they may
be assailed in a writ petition under Article 226 of the Constitution." This Rule has been
specifically invoked to deny information relating to blocking orders, even under RTI.

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QUESTION 3:
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Whether the procedure established by law to deprive a person of his life or liberty
under Article 21 of the Constitution of India require an order from the Magistrate as a
prerequisite to initiation of investigation or arrest by the police in matters of free speech
invoking criminal law?

Referring to the bookings made under Section 66A, the Petitioner presented that the wide
authoritative dialect of the Section extremely disincentivizes natives from practicing their
Constitutionally secured right to free discourse because of a paranoid fear of frivolous
prosecution (the 'chilling impact'). it is in any case violative of Articles 21 of the
Constitution. 

Furthermore, in S Khushboo v. Kanniammal, the Supreme Court had said that in cases
including Freedom of Speech and Expression, the best possible course for Magistrates is to
utilize their statutory powers to order an examination concerning the assertions before taking
perception of the offenses affirmed i.e. an inquiry under Section 202 of the Criminal
Procedure Code (CrPC) is an unquestionable requirement before issuance of procedure. 

Therefore, the Petitioner asked for that a rule be issued by the Supreme Court that offenses
including Freedom of Speech and Expression be dealt with as non-cognizable offenses in
context of Sections 41 and 156(3), CrPC, and that even for commencing an examination, an
inquiry under Section 202, CrPC is required. Sections 41 and 156(3) of the CrPC permit
police powers to arrest and investigate (respectively) without warrants on account of
cognizable offenses; Section 202 requires Magistrates who get complaints of offenses to
explore/direct examination concerning the cases to figure out if there are adequate
justifications for proceeding.
The court having already struck down section 66A on substantive grounds held it
unnecessary to comment upon the unconstitutionality of the procedural aspects of the
Section. The court laid down “under Rule 5, the Designated Officer may on receiving any
such request or complaint from the Nodal Officer of an Organization or from a competent

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court, by order direct any intermediary or agency of the Government to block any
information or part thereof for the reasons specified in 69A(1). Under Rule 7 thereof, the
request/complaint shall then be examined by a Committee of Government Personnel who
under Rule 8 are first to make all reasonable efforts to identify the originator or intermediary
who has hosted the information. The Designated Officer shall then, not later than 48 hours of
the issue of the interim direction, bring the request before the Committee referred to earlier,
and only on the recommendation of the Committee, is the Secretary Department of
Information Technology to pass the final order.”

The Court ruled that the public’s right to know was adversely impacted by section 66A of the
Information Technology Act, which restricted information that could cause annoyance or was
grossly offensive.

The Court has pointed out section 66A did not make a distinction between mass
dissemination and dissemination to one person. Justice Nariman said that the nexus between
the message and action taken on the basis of the message was conspicuously absent. The
language of section 66A did not require a proximate connection to public order, and instead
criminalised mere annoyance.

Justice Nariman said that the language of 66A did not satisfy the “Clear and Present Danger
Test” nor the “Tendency to Affect” Test, both of which the judgment elaborates on. Besides
‘public order’, section 66A does not fulfil any of the other terms of restriction provided in
Article 19(2). The Court said that the Additional Solicitor General (representing the
government) had asked the Bench to read these tests into section 66A, but if they did so, this
would amount to wholesale substitution of the law.

The Court ruled that the language of section 66A did not satisfy the test of vagueness- it did
not lay down clearly defined lines thus not allowing for law enforcement to put persons on
notice. “What may be offensive to one person is not offensive to another”, said Justice
Nariman. The Court said that even the term “persistently” in section 66A was not clearly
defined. Thus the section was rendered constitutionally vague. The Court observed that two
U.K. judgments cited by the ASG illustrated how even judicially trained minds could differ
on the meaning of ‘the term grossly offensive’.

Referring to the government’s argument that the possibility of abuse does not render a law
invalid, the Court held that section 66A, which was otherwise invalid could not be saved by

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the ASG’s assurance that the law would be administered flawlessly. “Governments may
come, and governments may go, but the law will remain”, observed the judges.

The judges relied on the Romesh Thapar case to address the issue of severability of the
provision (i.e. whether one part of the section could be severed from the rest, but the section
in its entirety would remain on the statute book). The Court held that section 66A does not
fall within the subject matter of Article 19(2). “No part of the section is severable as the
provision as a whole is unconstitutional”, said Justice Nariman.

The Court rejected the Article 14 argument put forward by the petitioners, who had argued
that laws governing the regulation of the Internet should be on par with laws governing other
media like print, broadcast etc. The Court said that section 66Bof the IT Act onwards did
create separate standards for the regulation of the Internet.

The Court also struck down in its entirety section 118D of the Kerala Police Act, a provision
similar to section 66A.

The Court, however, upheld the law related to blocking, section 69A, and the connected
Rules, in its entirety. As for the Intermediary Rules, the court has upheld section 79 of the IT
Act, and the Intermediary Rules subject to reading down both provisions to allow for a
requirement whereby a court order is required before an intermediary is required to take
down information of it was related to subject matter covered by Article 19(2).

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CONCLUSION:

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It's not regularly that India's Supreme Court strikes down a law completely as an
infringement of the free discourse. Be that as it may, when it does, kid would you like to
stand up and cheer. Under the watchful eye of a stuffed court, Justices Rohinton Nariman and
G. Chelameswar, purported their judgment in Shreya Singhal and Ors. v. Union of India,,
striking down, completely, the dubious area 66A of the Information Technology Act
completely. Justice Nariman talking on behalf of the Bench, first referred to the Preamble of
the Constitution that guarantees all citizens the liberty of thought, expression, belief, faith and
worship. He stressed that the liberty of expression was of paramount importance in our
constitutional scheme.
This decision in Shreya Singhal is an enormously imperative point of interest in the Supreme
Court's history for some reasons. It speaks to an uncommon example of the court receiving
the amazing stride of proclaiming an oversight law went by Parliament as through and
through illegitimate. Yet, what's most elevating about the judgment is that it has explained to
us, with momentous felicity, the extent of the privilege accessible to us to communicate
unreservedly, and the restricted space given to the state in limiting this flexibility in just the
most outstanding of circumstances. In elucidating the harmony between the privilege and its
thin imperatives, the court has struck a vicious blow against the duplicitous stand taken by the
state, which consistently represents the right to freedom of speech and expression as a fragile
guarantee at best.. As Justice Nariman's supposition has highlighted, the freedom of thought
and expression is not simply an optimistic perfect. It is likewise " a cardinal value that is of
paramount significance under our constitutional scheme.”  

Justice Nariman chatting for the benefit of the Bench, initially alluded to the Preamble of the
Constitution that ensures all natives the freedom of thought, expression, conviction,
confidence and love. He focused on that the freedom of expression was of vital significance
in our established plan. In its judgment, the Supreme Court shows its relentless duty to the
particular terms of Article 19(2) under which the right to speak freely and expression can be
genuinely confined. In doing as such, the Supreme Court highlights the reasonable contrasts

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between Article 19(2) of the Constitution and comparable procurements in international
human rights treaties.

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BIBLIOGRAPHY:

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Book References:

1) Introduction to the Constitution of India

2) Indian Constitutional Law
3) The Constitution of India: Bare Act

Online References:

1) www.lexology.com
2) www.manupatra.com
3) www.indiankanoon.org
4) www.lawnotes.in
5) www.slideshare.net

Citations:

1) 1982 1 SCC 271

2) Abrams v. United States 250 US 616 (1919)

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