ABSTRACT
In the present case a large number of cases were clubbed and writ petitions were filed to impugn Sec. 66A and sec. 69A of The Information Technology Act (added by amendment act of 2009) of the Constitution of India raising very important questions relating to fundamental right of free speech and expression guaranteed by art. 19(1)(a) of the Constitution of India. The analysis of judgement put forth the concept of freedom of speech and expression which included advocacy, discussion and incitement. According to the bench advocacy and discussion are allowed but incitement is not. The judgement enumerated the diffrences between US Constitution and art.19(1)(a) of the Indian Constitution on freedom of speech and expression. Also the judges exhaustively pointed out various doctrines such as Doctrine of Chilling effect, doctrine of overbreadth, doctrine of severability, and procedural unreasonableness. Now one of the most important highlight of the judgement is that for the first time Doctrine of Chilling effect has been used as a ‘‘reason’’ to strike down a provision, however it has been cited several times. Judges have also linked doctrine of chilling effect to doctrine of overbreadth in this case. The judgement furthers reasonable person test which acts as a litmus test when dealing with free speech. On the foregoing reasons, the Supreme Court has struck down sec.66A of Information Technology Act, 2000 in its entirety and at the same time validated section 69A of IT Act, 2000.
BRIEF FACTS OF THE CASE
Two girls named Shaheen Dhadha and Rinu Srinivasan, were arrested by the Mumbai police in 2012 for posting allegedly offensive and objectionable comments on Facebook about propreity of shutting down of city of Mumbai after the death of Bal Thackrey’s death, a political leader. The police made arrests under section 66A of The Information Technology Act, 2000. Although police later released the women and dismissed their prosecution, incident invoked substantial media attention and criticism. The women then filed a petition challenging the constitutional validity of Section 66A on the ground that it is violative of freedom of speech and expression.[1]
BACKGROUND
In the case, large no of cases were clubbed and batch of writ petitions were filed under Article 32[2] impugning section 66A and 69A of The Information Technology Act (added by amendment act of 2009) of the Constitution of India raising very important and far-reaching questions relating primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The judges were extremely clear regardless of what goes on a law to be considered as violative of freedom of speech and expession can only be struck down as unconstitutional if the law on face of it does not accord with 19(1)(a) and 19(2). Romesh Thappar v. State of Madras[3]., the Court stated that freedom of speech lay at the foundation of all democratic organizations.In Sakal Papers (P) Ltd. & Ors. v. Union of India[4]., a Constitutional 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.In a separate concurring judgment Beg,J. said, in Bennett Coleman & Co. &Ors . v. Union of India & Ors[5],that the freedom of speech and of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.
The bench has looked into the diffrences among discussion, advocacy and incitement as the concept of freedom of speech and expression. Advocacy is allowed, discussion is allowed but incitement is not. It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. So here the Judges have cited a line of judgement such as In S. Rangarajan v. P. Jagjivan & Ors[6].,where only if speech is ‘‘Spark in powder keg’’ ,i.e., only if speech is so proximate to provoking public disorder then it can be criminalised. Also it furthers the reasonable person test in our jurisprudence which was earlier govern by the Hicklin’s test and further by contemporary community standard test. Here the judges said that‘‘fear of serious injury can not alone justifies suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fear.’’ Now this is particulary interesting because nowhere else do they really talk about men but they talk about people. So there is a way in which they are addressing power diffrential in speech and saying that rationality is important and it is a reasonable person that must be used as a litmus test when dealing with issues of free speech.
The judgement also covers the wide range of diffrence and similarity on freedom of speech and expression between the US and Indian constitution. US Constitution takes up freedom of speech to be an absolute right however Indian Constitution under article 19(1)(a) does not consider it to be absolute right but a relative right subject to the art19(2).
In terms of what this judgement does is it elucidates number of doctrines, firstly, the Doctrine of Chilling Effect, essentially when there is some kind of crackdown by the state whether it’s a judgement or whether it’s a law which then goes on to make people believe that they can’t speak and they must be silent for fear of some kind of punishment. It can also come from mob. In addition they contended that section 66A has a chilling effect on freedom of speech. The Chilling effect has been cited before but this judgement is the first instance in which it has been cited as ‘‘reason’’ for stricking down a provision. Justice R. Nariman and Justice Chelameshwar, linked doctrine of overbreadth to the doctrine of chilling effect. Doctrine of overbreadth is defined as when a law prohibits something that must be illegal but also prohibits something which should be part of our polity. Section 66A of the Informtion Technology Act, 2000 did alot of this, i.e., Sec. 66A criminalised anything that was at the lowest threshold annoying or inconvenient and nobody really knew what that was. Now annoying or inconvenient can either be defamatory or irritating.
The decision also lays down the test that has to be formulated in all cases. The question that needs to be asked : 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. It will be immediately noticed that the recipient of the written word that is sent by the person who is accused of the offence is not of any importance so far as this Section is concerned.The Section makes no distinction between mass dissemination and dissemination to one person. In Kedar Nath Singh v. State of Bihar[7].,Section 124A of the Indian Penal Code was upheld by construing it narrowly and stating that the offence would only be complete if the words complained of have a tendency of creating public disorder by violence. It was added that merely creating disaffection or creating feelings of enmity in certain people was not good enough or else it would violate the fundamental right of free speech under Article 19(1)(a).
CASE COMMENT
The verdict of the Shreya Singhal case was hailed as a major step in country’s quest for freedom of speech and expression and laid great emphasis in the history of Supreme Court for many reasons and has also been cited as ‘‘great case’’, as it strikes down a provision that was evil so great that it was curtailing the basic fundamental right and thus laid down ground for future flourishing. In a rare instance, Supreme Court has adopted extreme step of declaring censorship law passed by parliament illegitimate altogether. The judgement has struck down Section 66A of the Information Technology Act, 2000 and has thus widened the scope of freedom of speech and expression as a tool to make the diffrence in the society and empowers an individual to think as one wills and speak as one thinks subject to reasonable restrictions and this idea dominates the discourse. The importance of the same was in securing liberty of individual well as for preserving essence of democratic form of government, however this right is not absolute under our constitution. In Romesh Thappar v. State of Madras[8]., the Court stated that freedom of speech lay at the foundation of all democratic organizations.
One of the most important highlight of the judgement is that it leads to the three concept which are basic in understanding of the expression ‘‘freedom of speech and expression’’. The first one is discussion, the second one is advocacy and the third one is incitement. So discussion and advocacy are allowed but the incitement is not for e.g., exercise of right of free speech through discussion and advocacy even if it relates to violence is allowed but not to an extent as it incites for the violence or even anything. According to the court, ‘‘Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Art. 19(1)(a)[9],’’ and the law may curtail the freedom only when discussion or advocacy amounts to incitement.
The other important highlight of the judgement is that it covers the diffrences on freedom of speech and expression of american and indian constitution [US First Amendment and Art. 19(1)(a) read with 19(2)]. Enumerating one by one-
(1). US First Amendment considers freedom of speech as an absolute right i.e., congress shall make no law which abridges the freedom of speech but Art. 19(1)(a) is not an absolute right but is subject to reasonable restriction mentioned under Art.19(2) and it can be curtailed in the interest of the general public. As a result of which parliament can make laws that which is required in the interest of public that which reason dictates and strikes proper balance between the freedom and public order. Section 66A and 69A of Information Technology Act, 2000 were the examples of the same however on examining from the point of reasonableness attempted an immediate impact upon the fundamental rights of the citizens, and the larger public interest got affected by the same. Also offence created by Section 66A has no proximate relation with any of the eight subject matters contained in art.19(2) and thus stricking down of provision contained under Section 66A of IT Act, 2000 was not invalid.
(2). US First Amendment speaks of freedom of speech and press without any refrence to ‘‘expression’’ and Article 19(1)(a) speaks of freedom of speech and expression not considering ‘‘press’’. Though the press under art 19 (1)(a) is considered indispensible part of freedom of speech. However provisions of article 66A of IT Act, 2000 criminalises dissemination of the offensive messages through internet and not by press. Now what the judgement does is that it highlights that the punishment just on basis of medium of dissemination of offensive messages is arbitrary and thus discriminatory as there is no intelligible diffrentia for the same, so that was also a ground to strike down sec.66A of IT Act, 2000.
(3). Under US Constitution, speech may be abridged, whereas under Art.19(1)(a) of the Indian constitution reasonable restriction maybe imposed that’s when art. 19(2) kicks in. Now art 19(2) in itself is exhaustive enough to protect certain rights regarding freedom of speech and for that matter operation of section 66A of IT Act, 2000 is vague and must be struck down as being arbitrary and unreasonable as it criminalises anything annoying, inconvenient or grossly offensive and the same shall be decided by local constable. However vagueness isn’t the sole ground to declare section 66A unconstitutional but also it is legislative incompetent on the account of public order.
It was also held by the court that operation of section 66A of IT Act, 2000 is violative of doctrine of due process. The rationale behind the same is that impugned provision is arbitrary and discriminatory classifying the provision to be vague as such. For the construction of the provision also Section 66A was found amidst the sea of uncertainty and it does takes away a very basic and guranteed freedom, law must be held to offend constitution and thus struck down as the provision that can be misused for the detriment of the people. The bench has also cited line of judgement so as to clarify vague laws as being violative of important values. In Kartar Singh v. State of Punjab[10]., it was held that the basic principle of legal jurisprudence is that an enactment is void for vagueness if its prohibitions are not clearly defined. The result of operation of vague provision is that uncertain and ambiguous words do create haphazard situation that leads to deprivation of basic fundamental rights as the boundaries of the same is not marked so it might take away or abridges certain parts of the fundamental right as in this case section 66A is extension of article 19(2) which provides reasonable restrictions for the fundamental right, flagrantly violates one of the very essential fundamental right. Also a number of expressions that have occured in section 66A has been used under Section 268 of Indian Penal Code such as words annoyance to the public or to the people, injury, obstruction, danger. So section 66A was just another provision that criminalised the acts of individuals while exercise of basic fundamental right. Thus stricking down of the same in promotion of public interest was required.
Also the bench has outlined various doctrines such as doctrine of chilling effect, doctrine of overbreadth, doctrine of severability and procedural unreasonableness. Section 66A was operating as a chilling effect on freedom of speech and expression under art 19(1)(a) as it discouraged the legitimate exercise of the rights that were given as part of freedom and speech and expression including right to access of free speech on internet by the threat of sanction. The bench has used it as a ‘‘reason’’ to strike down section 66A. The bench has also pondered upon the operation of doctrine of overbreadth with consideration of section 66A, as the doctrine of overbreadth is defined as to something that by in it’s existence operates with the irony or contradiction i.e., it criminalises that which prohibits certain behaviour but in so doing classifies something to be illegal that which has been granted constitutionally. Section 66A of IT Act, 2000 has done a lot of this. The judges have also undertaken the provisions of Section 66A to be in accordance with doctrine of severability to extent of inconsistency with the fundamental right provided under art 19(1)(a). Also the submission is held to be vague as it’s not clear which part or parts of Section 66A can possibly be saved as the impugned provision was on its own content inseverable. The bench has covered that section 66A also suffers from vice of procedural unreasonableness i.e., for the offence of criminal defamation safegaurds available under criminal law is not the same for offence under Sec.66A.
The court found that section 66A should be held as unconstitutional as it operates as thought control which is the essence of totalitarianism which is a threat to democratic form of government. It was also held that any censorship is valid only when censors are not violative of the promotion of general public interest. Also where no reasonable standards are laid down to define guilt in a section which creates an offence, and which is vague must be struck down as being arbitary and unreasonable. Not only the vague provisions trap the innocent by not providing fair warning but also they create sensitive areas over which explicit standards are required for those who apply them.
In conclusion based on foregoing reasons, the important highlights of the judgement are that the Court invalidated Section 66A of the IT Act, 2000 and strick down in entirety as the same being violative of Art19(1)(a) of the Constitution of India, Section 69A[11] is held to be valid and section 79 is also declared valid subject to provisions of Section 79(3)(b).
CONCLUSION
In a democratic set up, the citizens enjoy certain rights and as mentioned and as mentioned above freedom of speech and expression is one such right which is considered to be the prized priviledge of the citizens and is a sacred right and at the same time it empowes an individual to shape their world ina way that is unprecedented. Art. 19(1)(a) of the Constitution protects and guarantees right of freedom of speech and expression to all citizens subject to provisions contained in Art. 19(2). Section 66A of I.T. Act, 2000 is to be considered as violative of freedom of speech and expession and to be struck down as unconstitutional as the law on face of it does not accord with 19(1)(a) and 19(2). The legal position of the same was that it required that the police arrest anyone who said something online that was at lowest threshhold whether the speech was sufficiently annoying or inconvenience, now as we know that arrest under this provision was somewhat arbitrary. This was the problem with the law. Another problem was that intermediaries whether it’s facebook, whatsapp, twitter, were infact incentivised to take down all sort of content. The other problem was that website blocking was being undertaken by the government secretly because rules had been made and no reasons were being given for the same as a result people’s businesses were shut down, film makers were no longer able to access or display their works, and all happened in extremely arbitrary manner, and no body knew why. Fortunately the Supreme Court found fit to lay down what is known to be one of the most important judgement in the free speech. After approximately 50 years a criminal provision for the free speech was struck down, and made it clear that discussion and advocacy was allowed but the incitement is not.
Speech is something that enables truth to be spoken to power, that enables innovation to happen, that allows inspirations that we collectively bring together, to allow the contagion of goodness to spread without barrior.
[1] . https://globalfreedomofexpression.columbia.edu/cases/shreya-singhal-v-union-of-india/
[2] . The Constitution Of India, 1950, Article 32
[3] . Romesh Thapar v. State of Madras., [1950] S.C.R. 594 at 602 (India)
[4] . Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at 866 (India)
[5] . Bennett Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829 (India)
[6] . S. Rangarajan v. P. Jagjivan & Ors., [1989] S.C.R. (2) 204 (India)
[7] . Kedar Nath Singh v. State of Bihar., [1962] AIR 955 (India)
[8] . Romesh Thapar v. State of Madras., [1950] S.C.R 594 at 602 (India)
[9] . Shreya Singhal v. Union of India [decided on 24 March 2015] [para 13] (India)
[10] . Kartar singh v. State of Punjab,(1994) 3 SCC 569 at para 130-131 (India)
[11] . The Information Technology(Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009, Sec.69A (India)
