Shreya Singhal v. Union of India (2015): Section 66A IT Act struck down as vague

Facts

Section 66A was not part of the Information Technology Act when it was first passed. It made it an offence to send, through a computer or communication device, information that was grossly offensive or had a menacing character. It also covered false information sent persistently to cause annoyance, inconvenience, insult, enmity, hatred or ill will, and emails sent to cause annoyance or to mislead the recipient about their origin.

The same amendment brought in Section 69A. It lets the Central Government, for reasons recorded in writing, direct that information be blocked from public access in the interest of matters such as the security of the State or public order.

According to reports on the case, they led to criminal cases over harmless online speech, including political commentary and humour. A batch of petitions under Article 32 of the Constitution reached the Supreme Court. The petitioners included Shreya Singhal, NGOs such as the People's Union for Civil Liberties and Common Cause, and a company, Mouthshut.com.

The petitioners argued that causing "annoyance" or "inconvenience" is not a ground on which speech can be restricted under Article 19(2). They said the section was so vague that people could not tell what was forbidden, which left officials free to act arbitrarily. They also said it had a "chilling effect" on speech. The Union, through the Additional Solicitor General, argued that laws are presumed to be constitutional, that the mere possibility of misuse is no ground to strike a law down, and that loose wording was needed to deal with new ways of harming others through the internet.

Issues

• Does Section 66A violate the freedom of speech and expression under Article 19(1)(a), and is it saved by the restrictions allowed under Article 19(2)?
• Is the section void for vagueness, and does it chill free speech?
• Is it discriminatory under Article 14 because it targets speech on the internet but not in other media?
• Are Section 69A and Section 79 of the Act, and the rules made under them, constitutionally valid?

Held

1. Section 66A is unconstitutional. It violates Article 19(1)(a) and is not saved by Article 19(2).
2. The section was vague and over-broad. It was not narrowly aimed at specific kinds of speech, and its wording had a chilling effect on speech.
3. The "public order" ground in Article 19(2) cannot be used against mere advocacy. It applies only to incitement that has a close connection with public disorder.
4. The Article 14 challenge failed. The Court found a clear, intelligible difference between the internet and other media, because the internet gives any individual a platform at very little or no cost.
5. Section 69A and the 2009 blocking rules are valid.
6. Section 79(3)(b) is valid only if read down. An intermediary must remove or disable access to material once it has actual knowledge, through a court order or a notification from the appropriate government or its agency, that unlawful acts relatable to Article 19(2) are going to be committed. Rule 3(4) of the 2011 Intermediary Guidelines was read down in the same way.
7. Section 118(d) of the Kerala Police Act was also struck down, as it violates Article 19(1)(a) and is not saved by Article 19(2).

Why it matters

• It is regarded as a watershed moment for online free speech in India. It confirms that online speech enjoys the protection of Article 19(1)(a) and that a criminal law cannot rest on undefined words such as "annoyance" or "inconvenience".
• Its distinction between advocacy and incitement protects unpopular opinions. Speech can be restricted on the ground of public order only when it amounts to incitement that is closely connected with public disorder.
• The impact has limits. Reports note that Section 66A continued to be used against online speech in several cases even after it was struck down. The Delhi High Court, in MySpace v. Super Cassettes, also held that the reading down of Section 79 does not apply to copyright infringement under the Copyright Act.
• The Court upheld Section 69A, so the government's power to block content remains. It must be exercised with recorded reasons and the prescribed safeguards.

Exam one-liner

Section 66A of the IT Act was struck down as vague, over-broad and chilling on free speech, violating Article 19(1)(a) and not saved by Article 19(2); Section 69A upheld and Section 79 read down. (Shreya Singhal, 2015, 2 judges)

Sources

• Shreya Singhal v. Union of India, judgment of the Supreme Court of India (Indian Kanoon)
• Wikipedia: Shreya Singhal v. Union of India

Found this useful? Share it with someone who needs it: