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Shreya Singhal V. UoI Analysis

Writ petition is filed impugning section 66A and 69A of Information Technology Act (added by the Amendment Act of 2009). It is claimed to be incompatible with the Constitutional Principles. The court suo moto takes the issue of article 79 as well. Issue is related primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India.

Shreya Singhal v. Union of India (2013) 12 SCC 73- PIL Filed. Q [(2015) 5 SCC 1].

Sections

Section 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.

2. A related challenge is also made to Section 69A introduced by the same amendment which reads as follows:

69-A. 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 officers 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, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence 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. [They had put in place an elaborate and extensive procedure for this]


Issues:
  1. Petitioners claims that such Infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2).

    According to them, the causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill- will are all outside the purview of Article 19(2).
  2. Suffers from the vice of vagueness (unlike the offence created by Section 66 of the same Act). Innocent persons are roped in as well as those who are not. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said Section.
  3. This has Chilling effect. And would be an insidious form of censorship.
  4. The petitioners also contend that their rights under Articles 14 and 21 are breached because no intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication. To punish somebody because he uses a particular medium of communication is itself a discriminatory object and would fall foul of article 14.


Respondent government generally claimed
  1. that only legislature is properly equipped to handle this issue. The best method is to understand the needs of the people.
  2. Presumption of constitutionality. The Constitution does not impose impossible standards of determining validity.


Analysis
A. Generally, expounds the importance of Freedom of speech
  1. Romesh Thappar v. State of Madras: this Court stated that freedom of speech lay at the foundation of all democratic organizations.
  2. In Sakal Papers (P) Ltd. & Ors. v. Union of India: a Constitution Bench of this Court said freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved.


B. Ponders over differences between Indian and American Position on freedom of speech
  1. Vast difference as in India. In US ‘compelling necessity’ for general interest has to be there. In India it cannot be passed in the general interest. It must be under the markers in 19(2).


C. Actually talks about freedom of speech
  1. Three concepts which are essential in understanding the reach of this imp. fundamental right:
    The first is discussion, the second is advocacy, and the third is incitement.
  • Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1). It is only when this discussion reaches incitement when the speech can be curtailed.
  • Moreover, such should lead inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc
  • Therefore, in Indian case, the pattern of 19(2) has to be analyzed.


Main Segment
  1. Two things will be noticed. The first is that the definition of information is an inclusive one. Second, the definition does not refer to what the content of information can be. In fact, it refers only to the medium through which such information is disseminated. It is clear, therefore, that the petitioners are correct in saying that the public's right to know is directly affected by Section 66A.
  2. Information of all kinds is roped in - such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know.
  3. In Sakal Papers (P) Ltd. & Ors. v. Union of India, this Court said:
    The state can make restriction but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds


As To Public Disorder

  1. The restriction made in the interests of public order must also have reasonable relation to the object to be achieved, i.e., the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause.
  2. The impact of fundamental rights of others must also be seen. Said in context of freedom to carry business.
  3. We have to ask ourselves the question: does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquility of society undisturbed? Going by this test, it is clear that Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A.
  4. It is clear that the section has no proximity to public disorder whatsoever. this Court has held that mere annoyance need not cause disturbance of public order. the offence is complete by sending a message for the purpose of causing annoyance, either `persistently' or otherwise without in any manner impacting public order.
  5. Clear and present danger - tendency to affect. The court has earlier in decisions laid down that there should be a clear tendency to incite and the article should be considered as a whole in a fair free liberal spirit. It is clear that section 66a does not pass that muster as it had no element of tendency.

As To Defamation

As for Defamation, for this offense a basic ingredient of injury is there but section 66 A doesn’t have that.

As To Incitement of Offense
  1. As for incitement of offense, No proximate connection with incitement because information that is criminal under 66 A need not be inciting.
  2. Further, 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. They may be ingredients of particular offenses in IPC but they are not offensive in themselves.

As To Decency And Morality

  1. As for Decency and Morality, Ranjeet Udeshi v State of Maharashtra lends a very restrictive view of this.
  2. But primarily, it is noticed that word obscene is absent in Section 66A. The legislature clearly did not put this word inside the section. It was further held that a penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness.


As For Vagueness
  1. None Of The Words Like Intimidation Persistent Are Appropriatly Defined In The Section 66A.
  2. In State of Madhya Pradesh v. Baldeo Prasad an inclusive definition of the word goonda was held to be vague and therefore, violative of Article 19(1)(d) and (e) of the Constitution. It was stated. It was noted that no sufficient safeguards were provided in the statutes to safeguard innocent citizens.
  3. Rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature.
  4. Analyses two cases and says, if judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as "grossly offensive" or "menacing" are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence.


As To Chilling Effect And Over Breadth
  1. In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.
  2. If it is to withstand the test of constitutionality, the chilling effect on free speech would be total. Based on Khosboo case and Kameshwar Prashad v State of Bihar, 66A is held to be too wide and having a chilling effect.


Furthermore
  1. State said that possibility of an act being abused is not a ground to test its validity.
  2. Court says it is a converse position, 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.


Severability
  1. We hold, following K.A. Abbas' case, that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be held to be wholly unconstitutional and void.
  2. No part of 66A is capable of been severed and saved.
  3. Moreover, Romesh Thapur v State of Madras: it was found not possible to sever the section and so it was wholly struck down.


As For Article 14

  1. However, when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet.
  2. The intelligible differentia is clear - the internet gives any individual a platform which requires very little or no payment through which to air his views.


As For Procedural Unreasonableness
  • Allegation: In that, if, for example, criminal defamation is alleged, the safeguards available under Section 199 Cr.P.C. would not be available for a like offence committed under Section 66A.
  • Such safeguards are that no court shall take cognizance of such an offence except upon a complaint made by some person aggrieved by the offence and that such complaint will have to be made within six months from the date on which the offence is alleged to have been committed.
  • Further, safeguards that are to be found in Sections 95 and 96 of the Cr.P.C. are also absent when it comes to Section 66A.
  • Again, for offences in the nature of promoting enmity between different groups on grounds of religion etc. or offences relatable to deliberate and malicious acts intending to outrage religious feelings or statements that create or promote enmity, hatred or ill-will between classes can only be taken cognizance of by courts with the previous sanction of the Central Government or the State Government.
  • This procedural safeguard does not apply even when a similar offence may be committed over the internet where a person is booked under Section 66A instead of the aforesaid Sections.
  • Therefore, there is lack of procedural reasonableness.


Why Section 69A is saved.

Procedure under Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. If it has to be referred.
  • Under sub-section (2) thereof, the 2009 Rules have been framed.
  • Under Rule 3, the Central Government shall designate by notification in the official gazette an officer of the Central Government not below the rank of a Joint Secretary as the Designated Officer for the purpose of issuing direction for blocking for access by the public any information referable to Section 69A of the Act.
  • There is a hole wide process but the petitioners claimed that there is no pre-decisional hearing of the speaker of the information.

It will be noticed that Section 69A, unlike Section 66A, is a narrowly drawn provision with several safeguards.
  • First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do.
  • Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2).
  • Thirdly, 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.
  • Therefore, this section is not found constitutionally infirm.


Section 79 was read down

Section in which intermediaries are exempt from liability if they fulfill the conditions of the Section.

Section 79 states:
  • 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 who offer a neutral platform through which persons may interact with each other over the internet.
  • The petitioners assailed sub-rule (2) of Rule 3 saying that it is vague and over broad and has no relation with the subjects specified under Article 19(2).
  • It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69A. We have seen how under Section 69A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary.
  • The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69A read with 2009 Rules.
  • 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.

Aftermath of the case – Portion relevant for Professional Ethics
(IA No.170338/2018-Clarification/Direction)
  1. A study of legal databases by the Internet Freedom Foundation (IFF) found that Section 66A cases were continuing and fresh criminal cases were being registered. This violated not only the Supreme Court judgement but the fundamental right to freedom of speech and expression and personal liberty of the individuals. PUCL brought to notice how more than 22 people have been prosecuted under this section.
  2. The Hon'ble Supreme Court on Jan 7, 2019 issued notice and directed the Union Government to respond within 4 weeks
  3. Issue is that there is a failure to honor the decision and connection between the state’s institutions is weak. Civil contempt.
  4. Justice Rohinton Nariman in open court; we are going to take strict action,...the officials who ordered the arrests under Section 66(A) will be sent to jail.
  5. Outcome came in a non-adversarial manner.
  6. Prior to counter affidavit. Attorney General supported PUCL's plea for the need for greater awareness and sensitization of courts, prosecutors’ offices and police.
  7. They said some steps have been taken, like:
  • A letter it wrote on 11.01.2019 and
  • Then a reminder on 14.01.2019 to various State Governments asking them to furnish data on Section 66A cases and also asking them to close them.


Held:
  • Copies of this Court's judgment in Shreya Singhal v. Union of India will be made available by every High Court in this country to all the District Courts.
  • Also, Directed the Union Government to make available copies of the said judgment to the Chief Secretaries of all the State Governments and the Union Territories, with eight weeks. The Chief Secretaries will, in turn, sensitize the police departments in this country by sending copies of this judgment to the Director General of Police in each State, within a period of eight weeks thereafter.

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