Shreya Singhal and others v. Union of India

1. Case citations and basic information

Full case name: Shreya Singhal and others v. Union of India

Citations: AIR 2015 SC 1523; (2015) 5 1; Writ Petition (criminal) No. 167 of 2012

Court: Supreme Court of India

Bench: Justice J. Chelameswar and Justice Rohinton Fail Nariman (division bench)

Date of Decision: 24 March 2015

2. Introduction

Shreya Singhal v. Union of India is most important supreme court judgements on freedom of speech on the internet. The case dealt with Section 66A of the Information Technology Act, 2000, which made it a crime to send online messages that are considered “offensive”, “annoying” or otherwise objectionable. The act was enacted in 2008 without meaningful debate, Section 66A has been used against people for expressing political opinion, making jokes, or sharing comments on social media.

The supreme court examined section 66A in the light of Article 19(1)(a) of the constitution which gives right to freedom of speech and expression. The judgement became a landmark judgement which protected freedom of expression digitally and continues to be important in matters of online speech, social media, intermediaries and government control over internet.

3. Facts of the case

Section 66A was inserted to the Information Technology Act, 2000 through amendment passed by parliament in 2008 which came into force in 20009. The provision the provision was made that it was an offence to send information through a computer or communication devices that was “offensive” or “menacing”, or information that is false was sent with the intention   of causing “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will” however, the law did not define any of these terms.

Section 66A came under criticism in November 2012 after the case in Maharashtra where two women were arrested in Maharashtra, Shaheen Dhada and Rinu Srinivasan. Dhada posted on Facebook where is questioned to shutdown of Mumbai after the death of political leader. Srinivasan was arrested for simply liking the post both women were later released and the charges were dropped. The incident got public debate about the vague wording of section 66A and possibility of the misuse by the police.

Shreya Singhal who was a law student filled the PIL before the supreme court in November 2012 challenging the validity of section 66A constitutionally. The petition was later clubbed with other petitions filed by civil liberties organisation such as peoples Union for Civil Liberties and Common cause. Mouthshut.com also challenged the section 69A and 79 which dealt with blocking online content and liability of internet intermediaries. Another challenge was made against section 118(d) of the Kerala police act, which also dealt with causing annoyance through communication. In 2013 the Supreme Court passed an interim order stating that no arrest under Section 66A could be made without prior approval from senior police officer. The petition was finally heard and decided in March 2015.

4. Legal issues

1. Issues 1: whether Section 66A of Information Technology Act, 2000 violates the freedom of speech and expression granted under Article 19(10)(a) of constitution and is it saved as a reasonable restriction under Article 19(2)?
2. Issues 2: whether Section 66A is vague unconstitutionally and overbroad, and whether its indeterminate language produces a chilling effect on protected speech?
3. Issue 3: whether Section 69A of the Information Technology Act along with the rules made for blocking online content valid
4. Issue 4: whether Section 79 of the act and the intermediary guidelines rules ,2011 impose a legally valid responsibility on internet?
5. Issue 5: is Section 118(d) of the Kerala police act, 2011 also unconstitutional on same ground raised against Section 66A?

5. Arguments presented

5.1 petitioner’s argument

The petitioner argued that Section 66A used vague and subjective words such as “offensive”, “annoyance”, and “menacing” without clearly defining these words. This gave police officers too much freedom to decide what speech should be defined as offence. They argued that a criminal law must clearly define an offence and uncertainty created by Section 66A can make people fear to express their opinions in satire or criticise others.

The petitioners also took help of earlier Supreme Court decisions which distinguish between mere “discussion” or “advocacy” and actual “incitement “to an offence. They argued that Section 66A punished speech was nowhere close to incitement intermediaries to remove content based on private complaint without any proper decision by a court or government authority. According to them this allowed private parties to control and censor online speech.

5.2 Respondent argument

The Union of India defended that Section 66A by arguing that the internet has unique risk as online content can be shared instantly, anonymously and with large number of people. therefore, according to the government online speech could be subjective to greater regulation than print and broadcast media.

The government argued that freedom of speech is not absolute and can be reasonably restricted under Article 19(2) for reason such as public order, decency, and morality. It also stated that disputed terms could be interpreted narrowly and applied only to genuinely harmful communication. Any misuse could be dealt individually by court rather declaring entire provision unconstitutional.

Regarding intermediary liability the government argued that Section 79 the blocking rules properly balanced freedom of speech with the need to quickly remove unlawful content. It also submitted that Section 69A provided sufficient safeguards for government ordered blocking online content.

6. courts reasoning and analysis

Justice Nirman writing bench started by explaining the difference between “discussion” and “advocacy” and “incitement” The court held that discussion held that that discussion and advocacy are protected under Article 19(1)(a) and can be restricted only when they cross into incitement meaning there is a close and direct connection between the speech and an interest listed in Article 19(2) such as public order, decency or defamation. The court found that Section 66A failed to make this distinction and could punish speech simply for causing “annoyance” or “inconvenience,” even when it had no connection with unlawful conduct or public disorder.

The court further held that section 66A could not be held as reasonable restriction as its terms are ambiguous and vague and totally subjective. Something annoying for one person might not be annoying for other person leaving the law dependent on opinion rather than objective standards. The provision was also too broad because it covered a large amount of protected speech along with genuinely harmful conversation. The court rejected governments argument.

However court upheld the Section 69A because it provided proper safeguard including specific grounds for blocking content, written reasons and an opportunity to be herd before a review committee, regarding Section 79 and the associated intermediary rules, the Court adopted an intermediate position: rather than striking the provision down, it read down the requirement that intermediaries act on “actual knowledge” of unlawful content, holding that intermediaries could be required to remove content only pursuant to a court order or a notification from an appropriate government authority, not merely upon a private party’s complaint, thereby removing the incentive for intermediaries to over-censor lawful content to avoid liability. Applying materially the same vagueness and overbreadth reasoning used for Section 66A, the Court struck down Section 118(d) of the Kerala Police Act as well.

7. judgement and ratio decidendi

The decision: – The Supreme Court unanimously stuck down Section 66A of the Information Technology Act, 2000 as unconstitutional for violating Article 19(1)(a) and not being protected by Article 19(2). Section 69A and blocking rules were upheld. Section 79 was upheld with safeguards, requiring intermediaries to remove content only on a court order or a government notification. Section 118(d) of the Kerala Police Act 2011 was also stuck down.

Ratio Decidendi: The court held that restriction on speech under Article 19(2) must have a direct and reasonable connection with the interest listed in it such as public order. A law cannot cannot criminalise a speech only because it causes annoyance or inconvenience. This vague or broad provision can supress protected speech and create supressing effect on freedom of speech.

8. Critical Analysis

8.1 Significance of the Decision

Shreya Singhal filled in one of the most significant doctrinal lacunae existing from the time of the popular adoption of the internet in India – the case law on free speech previously developed solely with respect to the restrictions of speech via print and broadcast media and did not touch upon the issue of application of the discussion-advocacy-incitement paradigm to the internet communications. Instead of crafting a higher level of scrutiny for the restrictions of free speech via the internet and thereby making the Indian doctrine on free speech even more speech-protective, the Court brought it closer to the pro-speech common law approach, dismissing the particularities of internet communications that justified the more lenient approach to the restrictions of speech.

8.2 Implications and Impact

Despite invalidating the primary criminal provision for the prosecution of the speech via the internet and amending the principle of the intermediary liability to be applicable only in case of the compliance with judicial and governmental orders, but not individual complaints, the Court had to deal with the problem of poor enforcement in the subsequent years. The report published by civil society organizations some years after the judgment showed that the police in some states continued registering cases and arresting individuals under Section 66A, which was declared void, and a new petition for contempt was lodged, resulting in new instructions issued by the Supreme Court in October 2022.

8.3 Critical Evaluation

The doctrine of vagueness and overbreadth adopted by the Court is quite doctrinal indeed, and the fact that overbreadth can never be cured with an assurance of non-prosecutorial enforcement of the law is quite reasonable as the chilling effect is not dependent on the rate of actual prosecutions. On the other hand, the support of Section 69A has been strongly criticized: scholars have noted the opacity of the regime in question as the blocking orders and reasoning underlying them are not disclosed, meaning that it will be impossible to challenge any removal decisions even in case of existence of an official procedure for review. Additionally, the decision does not address the issue of possible due diligence duties of intermediaries independent of any formal notice of any kind. Some rulemaking attempts have addressed these issues, yet not always successfully. Post-2015 Section 66A cases have revealed yet another difficulty of constitutional law enforcement: the nullification of a law does not automatically eliminate it from practice.

9. Conclusion

Shreya Singhal v. Union of India is the leading authority on India concerning constitutional limits of the speech regulation on the Internet. Annulling Sections 66A as unconstitutional due to vagueness and overbreadth but upholding a much narrower Section 69A, the Court has demonstrated that speech protection in the Internet should not be lower than those provided by the traditional media and the only difference between legal and unconstitutional prohibition of conduct is the question of precision and procedural constraints. The main lesson learned from the case is that the indeterminate criminal language chills expression irrespective of how seldom it is used. Historical importance of the case lies in establishing the distinction between discussion, advocacy and incitement as the test of the online speech in India, however, its somewhat checkered implementation history proves that nullification of a law does not automatically eliminate it from operational practice.

10. Reference(S):

Shreya Singhal v. Union of India, AIR 2015 SC 1523 (India).

The Information Technology Act, No. 21 of 2000, §§ 66A, 69A, 79 (India).

INDIA CONST. art. 19, cl. 1(a), cl. 2.

Kerala Police Act, No. 8 of 2011, § 118(d) (India).

Implementation of S.66A IT Act, Supreme Court Observer (Oct. 12, 2022), https://www.scobserver.in/reports/implementation-of-shreya-singhal-day-2-order-pronounced-with-four-directions/.