Author: Isha Singh, Student at Indore Institute of Law, Indore
Co-Author : Piyush Nair, Student at Indore Institute of Law, Indore
In the era of technological advancement and rise in use of social media, every person is portraying some or the other opinion pertinent to politics, current happenings and many other things but what if one could get legally punished for depicting opinions. There is one such section that is section 66A of the information technology act which states that any if any person through computer system posts any information which is offensive in nature shall be liable to imprisonment up to three years. However, what is offensive for one may not be offensive for another. The basic liability of the crime does not depend on the one who posts his opinion rather it depends on the one who gets offended
One of the most important aspects of a democracy is liberty to free speech and expression. Constructive criticism is the heart of democracy. Though these rights are subject to some exceptions and are not absolute in nature. In this case section 66A of the Information technology act was challenged to be constitutionally invalid.
FACTS OF THE CASE
Police arrested two girls named Shaheen Dhadha and Rinu Srinivasan, who posted against the shutdown by the government due to the demise of Bal Sahab Thakrey, a shiv-sena political leader. One girl posted and another girl just liked the post. Police arrested them under section 66A of the Information technology, which further led to widespread agitation against the government.
The offence under section 66A of IT act being cognizable, therefore the police could arrest without warrant . The outcome of this was many highly famous arrests of people throughout the country for posting their views and opinions whereas govt called them ‘objectionable content’ but more often these contents were dissenting political opinions.
The central government in January 2013 advised that without previous approval of the inspector general or any other senior officer no person can be arrested. The Supreme Court viewed upon the entire petition related to the constitutional validity of the information technology act or any section under the ambit of Public interest litigation “Shreya Singhal v. Union of India.”[W.P. (crl).No.167 of 2012]
ISSUES OF THE CASE
- Constitutional validity of Section 66-A, 69-A and 79 was challenged.
- Whether Section 66A is curtailing Freedom of speech and expression.
- Whether Section 66A is saved under Section 19(2).
ARGUMENTS OF THE PETITIONER
- Section 66A infringes the Freedom of Speech and Expression which is fortified by Article 19(1)(a) and it is not protected by the reasonable restrictions provided by Art. 19(2).
- The scope of Article 19(2) does not include causing of disruption, annoyance, etc.
- Section 66A shows vagueness as there is no clarification of the terminologies used in the section.
- There is violation of Article 14 due to lack of intelligible differentia, since only one mode of communication is being targeted above all by this section.
ARGUMENTS OF THE RESPONDENT
- Courts can only exercise their power when a law clearly violates Part III of the Constitution.
- An interpretation of the law would be done by the court for better functionality and the provisions of law to be read into or read down.
- A probability of abuse cannot be a justification for declaring the provision invalid.
- The use of loose language is there to protect the people from those violating via the same medium.
- For declaring a statute unconstitutional, vagueness is not a valid ground.
The final judgment of this case is considered as one of the most important verdicts by the Hon’ble Supreme Court of India. Especially when it lies in the ambit of Fundamental Right of Speech and Expression of citizens as well as netizens. The judgement struck down the provisions that curtail the rights of the people and gave a clearer path to the future well being. Section 66A, Information Technology Act, 2000 was stricken down widening the scope of Freedom of Speech and Expression. This Fundamental Right is also a part of Constitution of India, under Article 19, holding every citizen’s liberty of holding views and opinions.
- Free Speech
In the Maneka Gandhi case , the same was fortified. It was held in this case was that; the territorial restrictions do not play part in limiting the freedom to express, holding views, and opinions. This right is free of territories and everybody is free to exercise this right in Indian Territory as well as Foreign Territory. The scope of the right was widened following the case of Romesh Thappar . The verdict interpreted in this scope that Right to Speech and Expression being fundamental rights also includes freedom of media to express those opinions and views. This liberty of media for freedom of Speech and expression was held superior to other rights provided by Indian Constitution, since this helps in maintaining the democracy in the government and country.
- S. And Indian Freedom of Speech and Expression
The judgement of the Shreya Singhal Case covers the differences between American and Indian Constitution on the provision of Freedom of Speech and Expression. US First Amendment interprets the freedom of speech as an Absolute Right and that the Congress cannot make laws that would infringe this right. Article 19(1)(a) interprets the freedom of speech in a way that it includes freedom of expression within it, whereas US First Amendment though talks about freedom of speech and press, but there is a reference about the freedom of expression. Although according to US Law freedom of speech can be infringed if it is profane, obscene, lewd, and libellous, whereas in Indian Law the same includes 8 aspects as per Article 19(2).
- Constitutionality of 66A
The judgment highlights 3 basic concepts of freedom of speech, i.e. Discussion, advocacy and incitement. When only discussion and advocacy are being dealt then they are considered to be under Article 19(1)(a), whereas when that discussion and advocacy takes up the form of incitement, then it is dealt under the Article 19(2). There is what the restriction plays role. Discussion and advocacy are legal and are meant to bring a change, whereas incitement is in view of provoking the general public into no good, affecting the sovereignty of the country.
Section 66A does not meet the grounds settles by Article 19(2) for tagging any act as incitement.
- Doctrine of Due Process
The court also held that Section 66A of Information Technology Act, 2000 violates the doctrine of due process. The section takes away people guaranteed liberty and freedom and offends the constitution, thus sticking it down leads to its misuse by the executives for detriment of the citizens.
The case of Kartar Singh was also cited by the bench; the verdict was that the fundamental principle of legal jurisprudence is that an enactment will be considered void for being vague if that enactment’s prohibitions are not defined clearly. This vagueness in the provisions lead to misconceptions, disharmony and thus deprives the fundamental rights of the citizens. Section 66A, likewise Article 19(2) blows out reasonable restrictions for the Fundamental Rights, which in a way is the violation of basic idea of the constitution.
- Doctrine of chilling effect and over breadth
The verdict outlined the doctrine of chilling effect and doctrine of over breadth. Doctrine of Chilling was exercised as under Article 19(1)(a), the right to exercise freedom of speech and expression over internet was being discouraged. It was one of the reasons for the bench for striking down Section 66A.
The Doctrine of Over breadth was mentioned by the court on account of Section 66A being contrary to its own actions, it illegalises what has been given by constitution itself. The scope of Section 66A endangers the rights and liberty provided to the citizens by the constitution, thus these two doctrines were also applied to it.
- Overview of Judgement
The court concluded that the Section 66A be held unconstitutional, since it tries to control the free thoughts and expressions of the citizens on internet. The chains on the freedom of speech of citizens are a threat to a democratic government. The court also held that the censorships will be valid unless and until they are not violating the promotion of interest of general public. Any provision or section that is vague and does not have reasonable standards to define the guilt of the accused shall be stuck down on the basis of being unreasonable and arbitrary.
Under a democratic government, the citizens enjoy freedom to exercise their fundamental rights. According to the context of judgment as mentioned freedom of speech and expression is one of the most prominent ones. It is a privilege given in the hands of citizens so as the democracy work consistently. Article 19(1)(a) of Constitution of India guarantees and fortifies the fundamental right to speech and expression to all the citizens, although its restrictions are also being provided under Art. 19(2).
It is considered that Section 66A of Information Technology Act, 2000 is grossly violative of the rights enshrined under Art. 19(1)(a) and 19(2). The law has been stuck down because of endangering the freedom of views and opinions of citizens on internet. The police got the power to arrest anyone putting up online anything annoying, causing inconvenience, etc.
The court found the law vague enough to strike it down. The law itself was violating the norms fortified by the Indian Constitution. If the citizens are bound to speak only good then the democratic government shall not be able to work. Putting restrictions on people exercising their fundamental rights, as done in Section 66A was evidently vague and had to be stricken down.
 Maneka Gandhi v Union of India  AIR 597
 Romesh Thappar v. State of Madras  AIR 124
 Kartar Singh v State of Punjab  AIR 1787