Analysis Of The Case Shreya Singhal Vs Union Of India

Introduction

This case was a judgement by a two judge bench of the Supreme Court of India in 2015, on the issue of the violation of fundamental right of speech. As a result of this case the supreme court struck down the section 66A of the Information Technology Act, 2000 relating to the restriction of online speech, violating the grounds of freedom of speech given in section 19(1)(A). This case was one of the most famous one and the judgement was also appreciated by the citizens.

What was it about?

Mumbai police arrested two girls Shaheen Dhada and Rinu Srinivasan in 2012 for communicating their thoughts about the bandh announced by shiv sena on Bal Thackeray’s demise. The girls posted their remarks on Facebook. The arrested girls were discharged later on and it was decided to drop the criminal case against them as they resulted into protests through out the country as a violation of the fundamental right of freedom of speech.

Which rights were violated?

There are six fundamental rights. These are:

1. Right to freedom of speech and expression
2. Right to equality
3. Right against exploitation
4. Right to freedom of religion
5. Right to move freely throughout the country
6. Right to reside in any part of the country.

These are the fundamental rights but in this and many other cases many of them have been violated. For this particular one the Fundamental Right Of Speech has been violated. The two girls had every right to express their thoughts and it wasn’t under any violation or exceptions offered under the freedom of speech. It felt like the police had taken misuse of section 66A.

Arguments represented in the front of court

Petitoners arguments:

Section 66A takes away the Freedom of Speech and Expression guaranteed under Art. 19(1)(a) and is not saved by the reasonable restriction mentioned under Art. 19(2). That causing of annoyance, inconvenience etc. are outside the scope of Article 19(2). Section 66A seeks to create an offence but have infirmity and vice of vagueness as it does not clearly defines the terminology used in it. The terminology used are subjective in nature and are left open at the desire and will of the law enforcement agencies to interpret it. The limitation is not present.

Article 14 violated as there is no intelligible differentia as to why only one means of communication is targeted by this section, thus, self-discriminatory.

Respondents arguments:

Legislature is in the best position to address the requirements of the people and the courts will only step in when a law is clearly violated of Part III and there is presumption in favor of Constitutionality of the law in question.

Court would so construe a law to make it functional and in doing so can read into or read down the provisions of law. Only probability of abuse cannot be a justification to declare a provision invalid.

Loose Language is used to safeguard the rights of the people from those who violate them by using this medium. Vagueness is not a ground to declare a statute unconstitutional if it is otherwise qualified and no arbitrary.

Facts in issue

A writ petition was filed in public interest under Article 32 of the Constitution of India by petitioner, seeking to declares Section 66A, 69A and section 79 as unconstitutional on the fact that the phraseology used in Section 66A, 69A and section 79 of the IT Act, 2000 is so broad and vague, at the same time incapable of being judged on objective standards, that it is susceptible to wanton abuse and hence falls foul of Article 14, 19 (1) (a) and Article 21 of the Constitution. Petitioner further argues that the terms, menacing, offensive, annoyance, inconvenience, obstruction, danger, and insult have not been defined in the General Clauses Act, IT Act or any other law and so they are susceptible to wanton abuse. petitioner further urged that the provision sets out an unreasonable classification between citizens on one hand and on the other hand netizens as the freedom generally guaranteed under Article 19(1)(a) to citizens including general media now is tamed as far as netizens are concerned.

What made this case so important

1. In context of information

There are three concepts essentials to understand the Freedom of Expression:

• Discussion
• Advocacy
• Incitement.

The first is discussion, the second is advocacy, and the third is incitement. Just discussion or even advocacy of any particular cause howsoever disliked, unpopular or hated is at the heart of Article 19(1) (a). It is only when any such discussion or advocacy steps into the level of incitement that Article 19(2) gets initiated. It is at this stage/level that a law may be made for curtailing the speech or expression that leads inexorably to or tends to cause public disorder or be prone to cause or have tendency to affect the sovereignty & integrity of India, security of the country, friendly relations with other States, etc. Further, to curtail the freedom specified under article 19(1)(a) the ground must qualify the test of article 19(2) which enumerate only eight condition or element but section 66A does not pass the muster test and element of article 19(1)(a).

2. The Public Order

"Public Order" is an expression which indicates a state of peace and tranquility which prevails over and amongst the members of a society as a outcome of the internal Regulations enforced by the state which state have established with due process of law. In the case Dr. Ram Manohar Lohia v. State of Bihar and others Supreme Court pointed out the difference between maintenance of law and order and its disruption and the maintenance of public order and its disruption. Public order was said to enfold more of the society and community than law and order. Public order is the smooth and peaceful condition of the life of the community or society at large taking the country as a whole or even a particular locality. Disruption of public order is to be differentiated, from acts directed against or toward individuals who do not disturb the society to the extent or level of causing a general disruption of public tranquility. It is the degree of disturbance and its impact upon the life of the community in a locality which decides whether the disturbance results only to a breach of law and order.

3. The Defamation, Indecency and Morality

It must be noticed that for something to be defamatory, injury to reputation is an essential ingredient. Section 66A does not expressly or impliedly concern itself with injury to reputation. Something might be grossly offensive and might be annoy or may be inconvenient to somebody but may not be affecting his reputation. It is established therefore that the Section 66A is not aimed at defamatory statements. In the case of, Directorate General of Doordarshan v. Anand Patwardhan Supreme Court observed the law in the United States of America and said that a material might be regarded as obscene if the average person applying contemporary society or community standards would find out that the subject matter taken up as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious6 artistic, literary, political, educational or scientific value. Section 66A cannot possibly be said to frame an offence which comes within the expression of 'decency' or 'morality'. What might be grossly offensive or annoying under the Section 66A need not be essentially obscene? The word 'obscene' is absent in Section 66A.

The judgement

• Section 66A is struck down in its entirety being violated of Article 19 (1) (a) and not saved under Article 19(2).
• Section 69A and IT (procedure & safeguard for blocking for access of info by public) rules are constitutionality valid.
• Section 79 is valid subject to reading down of Section 79(3) (b).
• Section 118(d) of Kerala Police Act is struck down (public order).

The judgment has preserved and saved the freedom of speech and expression given to people under article19 (1) (a) of Indian Constitution and also restraining state from arbitrary apply of power 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 reasonable restriction on fundamental right and freedom given by Indian constitution But miss to implore the principle of transparency for rules to block the website. Needs some further interrogation and fine tuning in regard to viewers right as he/she must know why state is not allowing them to have certain information and that reason can be challenged by the viewers also However, the Apex Court has put a lot of faith in technical and complicated government process based on dicey understanding of the capabilities and capacities of the different parties involved. For example, the law regarding content-blocking procedure have been declared effective on the belief. And presumption that the blocking of website rules (2009) gives a reasonable chance and opportunity to be heard and to challenge an unconstitutional blocking order. This is, many times, misleading. It presumes that the originator of content will be contacted and informed about the blocking of his/her content and a reasonable opportunity will be given to challenge the blocking of the content. Secondly, the assumption that the intermediary will give reason and defend the content before the concerned government body.

Both assumptions are practically 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 resources to argue and pursue his/her case. Intermediaries will not reasonably defend the content since they prefer to avoid spending resources on protecting third-party content. The cumulative impact of this is that the information available to access will continue to be affected by unreasonable government blocking orders.