CONSTITUTION PROJECT

2015-2020

TOPIC – SHREYA SINGHAL V. UNION

OF INDIA
ACKNOWLEDGEMENT
I WOULD LIKE TO THANK MY CONSTITUTION TEACHER
“MR.ASHUTOSH SIR”FOR GIVING ME SUCH A WONDERFUL
PROJECT WHICH HAS HELPED ME A LOT TO LEARN NEW
THINGS.IT WOULD’NT BE COMPLETED WITHOUT HIS GUIDANCE.
I WOULD LIKE TO THANK MY FRIENDS AND FAMILY FOR
HELPING ME IN DOING THE PROJECT AND MAKING IT A
SUCCESSFUL ONE.
INTRODUCTION
Supreme Court in a landmark judgement struck down section 66A of the
Information Technology Act, 2000 which provided provisions for the arrest of
those who posted allegedly offensive content on the internet upholding freedom
of expression. Section 66A defines the punishment for sending “offensive”
messages through a computer or any other communication device like a mobile
phone or tablet and a conviction of it can fetch a maximum three years of jail and
a fine.

Over the last couple of years there has been many cases in which police has
arrested the broadcasting of any information through a computer resource or a
communication device, which was “grossly offensive” or “menacing” in
character, or which, among other things as much as cause “annoyance,”
“inconvenience,” or “obstruction.” In a judgment authored by Justice
R.F.Nariman, on behalf of a bench comprising himself and Justice J.
Chelameswar, the Court has now declared that Section 66A is not only vague
and arbitrary, but that it also “disproportionately invades the right of free
speech.”
FACTS OF THE CASE

Two girls-Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai
police in 2012 for expressing their displeasure at a bandh called in the wake of
Shiv Sena chief Bal Thackery’s death. The women posted their comments on the
Facebook. The arrested women were released later on and it was decided to
close the criminal cases against them yet the arrests attracted widespread
public protest. It was felt that the police has misused its power by invoking
Section 66A inter alia contending that it violates the freedom of speech and
expression. In 2013, the apex court had come out with an advisory under which
a person cannot be arrested without the police receiving permission from senior
officers. The apex court judgment came on a batch of petitions challenging the
constitutional validity of Section 66A of the IT Act on the grounds of its vague
and ambiguous and was being misused by the law enforcing authorities.

BACKGROUND: SECTION 66 A IT ACT

The judgment of the Supreme Court focused primarily on the constitutionality of
section 66A of the Information Technology Act. This provision has a shared
genealogy with section 127 of the UK’s Communications Act 2003. Section 66A
states:

“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
year and with a fine”
The petitioners argued that this provision was constitutionally invalid as it
infringed upon the fundamental right to “freedom of speech and expression” as
recognised by Article 19(1)(a) of the Constitution of India. The Supreme Court
reiterated that the liberty of thought and expression “is a cardinal value [in a
democracy] that is of paramount significance under [India’s] constitutional
scheme.” It also recognised the importance of freedom of speech and
expression both in terms of “liberty of the individual” and from the point of view
of democratic governance.

However, Article 19(1)(a), like many international provisions recognising the

right to freedom of expression, is not absolute. It is subject to the carve-out
formulated underArticle 19(2), which states that;

[n]othing in [Article 19(1)(a)] shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the
interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to CONTEMPT OF COURT

The Supreme Court reasoned that in order to understand the phrase “freedom
of speech and expression”, it was necessary to understand the concepts of
‘discussion’, ‘advocacy’, and ‘incitement’. Mere ‘discussion’ or ‘advocacy’ is at
the heart of Article 19(1)(a); however once it reaches the level of ‘incitement’,
Article 19(2) “kicks in” and speech may be curtailed. [13] Nonetheless, the
Supreme Court stressed that in curtailing freedom of speech, the restrictions
have to be proximately related to one of the eight designated subject matters
contained in Article 19(2).

Article 19(2) Subject Matters

The Supreme Court took notice of the fact that section 66A did not seek to
distinguish between “annoying, inconvenient or grossly offensive”
information that formed part of a ‘discussion’ or ‘advocacy’ of a point of view,
and “annoying, inconvenient or grossly offensive” information that amounted to
‘incitement’. ‘Incitement’ in this context refers to situations where such words
have an “imminent causal connection” with one of the eight designated subject
matters in Article 19(2). The Supreme Court went on to reiterate that if the
restriction has no proximate relationship with the achievement of one of the
 designated subject matters, it cannot be said that the restriction is a
“reasonable restriction” under Article 19(2).

The Additional Solicitor General argued before the court that the test of
“reasonableness” when considering a law that restricts freedom expression
should be more relaxed when applied to activity online. In doing so, the
Additional Solicitor General enumerated a number of differences between the
internet and other forms of traditional media. The Supreme Court recognised
that there was a clear difference between traditional media and the internet, and
therefore concluded that separate offences could apply to internet speech. [28]
However, it could not find anything in the features of online speech that would
warrant a more relaxed test of “reasonableness” when assessing restrictions to
speech online. As a result, the validity of laws which apply to the internet will not
be subject to a different test to that which applies to the validity of laws on
traditional media. In reaching this conclusion, the Supreme Court quoted the
case of Secretary Ministry of Information & Broadcasting, Government of India
v. Cricket Association of Bengal (1995) 2 SCC 161, where it was stated that;

If the right to freedom of speech and expression includes the right to

disseminate information to as wide a section of the population as is possible, the
access which enables the right to be so exercised is also an integral part of the
said right. The wider range of circulation of information or its greater impact
cannot restrict the content of the right nor can it justify its denial.

The Supreme Court then went on to conssider four of the eight designated
subject matters under Article 19(2), in order to determine whether section 66A
had a proximate relationship with any of them:

 Public Order: This expression was defined by the Supreme Court as signifying “a
state of tranquillity which prevails amongst the members of a political society as
a result of the internal regulations enforced by the Government which they have
established.” [30] The Supreme Court reiterated that ‘public order’ embraced
more of the community than the concept of ‘law and order’. Therefore, the
question that had to be answered was whether a particular act would lead to a
disturbance of the current life of the community, or does it merely affect an
individual. [35] The Supreme Court observed that section 66A does not place
any real importance on the recipient of the relevant communication, and so it
could apply to messages sent to either an individual or several people.
Moreover, the section did not require that the communication have a clear
tendency to disrupt ‘public order’. The Supreme Court held that there was no
proximate relationship, therefore, between the section and ‘public order’. The
Supreme Court held that a tendency to create public disorder “ought to be an
essential ingredient of the offence which [Section 66A] creates” in order for it to
be constitutionally valid.
 Defamation: The Supreme Court acknowledged that injury to reputation is a
basic ingredient of defamation. Section 66A clearly did not concern itself with
 injury to reputation; “[s]omething may be grossly offensive and may annoy or be
inconvenient to somebody without it affecting his reputation.” The Supreme
Court concluded that section 66A was not aimed at this subject matter.
 Incitement to an offence: When considering this subject matter, the Supreme
Court took into account the fact that the information disseminated according to
66A need not be information which incites anybody at all. Information may, as
discussed above, simply amount to ‘advocacy’ or ‘discussion’ of a point of view
rather than ‘incitement’. There was no proximate relationship between section
66A and incitement to commit an offence.
 Decency or Morality: In this context the Supreme Court noted that information
that is ‘grossly offensive’ or ‘annoying’ need not be ‘obscene’. The Supreme
Court reasoned that the word ‘obscene’ was conspicuous by its absence from
the provision.

ARGUMENTS AGAINST ; QUESTIONS RAISED

Whether the vague description of various acts constituting a n o f f e n c e u n d e r

Section 66A of the IT Act, without
anydefinition or prescription of standards whatsoever beingc a p a b l e
o f w a n t o n a b u s e i s v i o l a t i v e o f t h e s a c r o s a n c t freedom of speech
and expression guaranteed by Article 19 (1) (a) of the violative of Article14 and
21 of the Constitution and so also Constitution?

B.Whether the protection afforded to free speech by meansof the bar

contained in Section 196 (1A) of the Cr.P.C. to t a k i n g c o g n i z a n c e o f a n
offence by courts in absence
of p r i o r s a n c t i o n b y t h e C e n t r a l o r S t a t e G o v e r n m e n t o r

District Magistrate in relation to offences u/s 153 -A, 295-Aor 505 (1) of
the IPC is rendered otiose in the absence
of a n y s i m i l a r b a r o n t h e p o w e r o f p o l i c e t o i n v e s t i g a t
e , search, seizure and arrest under Section 156 (1) and 41 of t h e
Cr.P.C in such cases. (vide
S t a t e o f K a r n a t a k a v . Pastor P. Raju, (2006) 6 SCC 728)
?
C.
Whether the chilling effect created by the frivolo
u s invocations of criminal law especially in cases involvingfree
s p e e c h d e s e r v e s t o b e n e g a t e d b y a j u d i c i a l s a f e t y valve such as
an order from a magistrate as a prerequisiteto initiation of investigation or
arrest by the police?
D.
Whether this Hon’ble Court, in the absence of
l e g i s l a t i v e safeguards against the abuse of the powers
under Section4 1 a n d 1 5 6 ( 1 ) o f t h e C r . P . C . o u g h t t o i s s u e
g u i d e l i n e s under Article 142 of the Constitution so as to reconcile
thefreedom of speech and expression under Article 19 (1) (a) w i t h t h e
aforesaid provisions of the Cr.P.C. including
ass u g g e s t e d b y t h i s H o n ’ b l e C o u r t i n
S . K h u s h b o o v . Kanniammal, (2010) 5 SCC 600

I t i s s u b m i t t e d t h a t i n v i e w o f t h e w i d e a n
d v a g u e phraseology of Section 66A of the IT Act, it is h
u m b l y submitted that the aforesaid dicta of this Hon’ble Court
issquarely attracted, for this provision is indeed capable of w a n t o n
a b u s e i n v i e w o f t h e s u b j e c t i v e d i s c r e t i o n o f t h e police and the
susceptibility of it being invoked
cavalierly.I n f a c t , t h e f o l l o w i n g r e c e n t e v e n
t s f o r t i f y t h e apprehensions of the Petitioner herein:-
(i)
In April 2012, a professor of chemistryfrom Jadavpur Univeristy
in West Bengal, one
S r i Ambikesh Mahapatra, was arrested for posting acartoon concerning a
political figure from the State of West Bengal on social networking sites.
(ii)
I n M a y 2 0 1 2 , t w o A i r I n d i a e m p l o y e e s were by THE Mumbai
Police underinterALIA
Sec. 66 of the IT Act for putting up content

F a c e b o o k a n d O r k u t w h i c h w a s a g a i n s t a t r a d e union l
e a d e r a n d s o m e p o l i t i c i a n s . T h e y w e r e i n custody for 12 days

ARGUMENTS IN FAVOUR

For that the phraseology of Section 66A of the IT Act, 2000 isso wide and
vague and incapable of being judged on objectives t a n d a r d s , t h a t i t i s
susceptible to wanton abuse and
hencef a l l s f o u l o f A r t i c l e 1 4 , 1 9 ( 1 ) ( a ) a n d A r t i c l
e 2 1 o f t h e Constitution.
B.
For that all terms constituting an offence under Section 66 A of the IT Act have
not been defined either under the IT Act,
2000o r u n d e r t h e G e n e r a l C l a u s e s A c t o r u n d e r a n y
o t h e r legislation and thus susceptible to abuse and
consequentiallyviolative of Article 14 and 21 of the Constitution. This
Hon’bleCourt has held in
A.K. Roy v. Union of India, (1982) 1 SCC 271
,
that:
“
T h e i m p o s s i b i l i t y o f f r a m i n g a d e f i n i t i o n w i t h mathe
matical precision cannot either justify the use
of v a g u e e x p r e s s i o n s o r t h e t o t a l f a i l u r e t o f r a m e a n y definiti
on at all which can furnish, by its inclusiveness at least, a safe guideline for
understanding the meaning of the expressions used by the legislature
.”In that case, this Hon’ble Court while dealing with the NationalSecurity Act
went on to hold as follows:“
The particular clause in sub -section (2) of Section 3
of t h e N a t i o n a l S e c u r i t y A c t i s , t h e r e f o r e , c a p a b l e o f
wanton abuse in that, the detaining authority can
placeu n d e r d e t e n t i o n a n y p e r s o n f o r p o s s e s s i o n o f a n y
commodity on the basis that the authority is of theo
p i n i o n t h a t t h e m a i n t e n a n c e o f s u p p l y o f t h a t com
modity is essential to the community. We consider the particular clause
not only vague and uncertain
but,i n t h e c o n t e x t o f t h e E x p l a n a t i o n , c a p a b l e o f b e i n
g extended cavalierly to supplies, the maintenance of which is
not essential to the community. To allow
t h e personal liberty of the people to be taken away by theapplication of that
clause would be a flagrant violation of the fairness and justness of
procedure which is implicit in the provisions of Article 21.

” (Emphasis supplied)
C.
For that in view of the following recent events fortify the

a p p r e h e n s i o n s o f t h e P e t i t i o n e r a s t o t h e a b u s e o f S e c t i o n 66A of
the IT Act:-a . A p p l i c a t i o n o f t h i s s e c t i o n i n t h e c a s e o f o n e M s
S h a h e e n Dadha, a 21-year-old girl who was arrested a few days agofor
questioning the shutdown in Mumbai after the demise of a political figure on the
social networking website facebook,w h i c h w a s ' l i k e d ' a n d s h a r e d b y
h e r f r i e n d o n e M s R e n u , who was also arrested BY THE THANE POLICE.
One businessman RavI
S r i n i v a s a n b e i n g a r r e s t e d b y t h e Puducherry Police last month
for having made a allegationon a social networking site twitter against
a politician fromTamil Nadu.c . A p r o f e s s o r
f r o m K o l k a t a , o n e S r i A m b i k e s h M a h a p a t r a , being arrested in
April 2012 for posting cartoons against apolitical figure on social
networking sites.
D.
For that the invocation of penal provisions on tenuous groundshas a “chilling
effect” on free speech, that is to say it severally disincentivizes citizens from
exercising their rights.

The enforcement of the said section would really be an insidious form of

censorship which impairs a core value contained in Article 19(1)(a). In addition,
the said section has a chilling effect on the freedom of speech and expression.
Also, the right of viewers is infringed as such chilling effect would not give them
the benefit of many shades of grey in terms of various points of view that could
be viewed over the internet.

The Petitioners also contended that their rights under Articles 14 and 21 are
breached in as much there is 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 in
any case.

In reply, Mr. Tushar Mehta learned Additional Solicitor General defended the
constitutionality of Section 66A. He argued that the legislature is in the best
position to understand and appreciate the needs of the people. The Court will,
therefore, interfere with the legislative process only when a statute is clearly
violative of the rights conferred on the citizens under Part-III of the Constitution.
There is a presumption in favour of the constitutionality of an enactment.
Further, the Court would so construe a statute to make it workable and in doing
so, can read into it or read down the provisions that are impugned. The
Constitution does not impose impossible standards of determining validity. Mere
possibility of abuse of a provision cannot be a ground to declare a provision
invalid. Loose language may have been used in Section 66A to deal with novel
methods of disturbing other people’s rights by using the internet as a tool to do
so. Further, vagueness is not a ground to declare a statute unconstitutional if
the statute is otherwise legislatively competent and non-arbitrary. He cited a
large number of judgments both from this Court and from overseas to buttress
his submissions.

LIST OF DATES

APRIL2012
A professor of chemistry from Jadavpur Univeristy inW e s t B e n g a l , o n
e S r i A m b i k e s h M a h a p a t r a , w a s arrested for posting a c
artoon concerning a politicalf i g u r e f r o m t h e S t a t e o f
W e s t B e n g a l o n s o c i a l networking sites.
May 2012
Two Air India employees were arrested by the
M u m b a i Police under
inter alia
Sec. 66 of the IT Act for puttingup content on Facebook and Orkut which
was against at r a d e u n i o n l e a d e r a n d s o m e p o l i t i c i a n s . T h e y w e r e
i n custody for 12 days.
OCTOBER 2012

One businessman Ravi Srinivasan was arrested

b y t h e Puducherry Police for having made a allegation on
a s o c i a l n e t w o r k i n g s i t e t w i t t e r a g a i n s t a p o l i t i c i a n f r o m Tamil
Nadu.
N o v 2 0 1 2
O n e M s S h a h e e n D a d h a , a 2 1 - y e a r -
o l d g i r l w a s arrested a days ago for questioning the
shutdown
i n M u m b a i a f t e r t h e d e m i s e o f a p o l i t i c a l f i g u r e o n t h e social
networking website Facebook, which was 'liked' a n d s h a r e d b y h e r
f r i e n d o n e M s R e n u , w h o w a s a l s o arrested by the Thane police in
Maharashtra.26.11.2012The present petition under Article 32 of the
Constitutionof India is filed.

JUDGEMENT OF THE CASE

This batch of writ petitions filed under Article 32 of the Constitution of India
raises very important and far-reaching questions relatable primarily to the
fundamental right of free speech and expression guaranteed by Article
19(1)(a) of the Constitution of India. The immediate cause for concern in these
petitions is Section 66A of the Information Technology Act of 2000. This Section
was not in the Act as originally enacted, but came into force by virtue of
an Amendment Act of 2009 with effect from 27.10.2009. Since all the arguments
raised by several counsel for the petitioners deal with the unconstitutionality of
this Section it is set out hereinbelow:

"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."[1]

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 authorised 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, defence 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.

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.

The intermediary who fails to comply with the direction issued under sub-
sEction (1) shall be punished with an imprisonment for a term which may extend
to seven years and shall also be liable to fine." The Statement of Objects and
Reasons appended to the Bill which introduced the Amendment Act stated in
paragraph 3 that: A rapid increase in the use of computer and internet has given
rise to new forms of crimes like publishing sexually explicit materials in
electronic form, video voyeurism and breach of confidentiality and leakage of
data by intermediary, e-commerce frauds like personation commonly known as
Phishing, identity theft and offensive messages through communication
services. So, penal provisions are required to be included in the Information
Technology Act, the Indian Penal code, the Indian Evidence Act and the code of
Criminal Procedure to prevent such crimes."

The petitioners contend that the very basis of Section 66A - that it has given rise
to new forms of crimes - is incorrect, and that Sections 66B to 67C and
various Sections of the Indian Penal Code(which will be referred to hereinafter)
are good enough to deal with all these crimes.

The petitioners' various counsel raised a large number of points as to the

constitutionality ofSection 66A. According to them, first and foremost Section
66A 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). Further, in creating an offence, Section 66A suffers from the
vice of vagueness because unlike the offence created by Section 66 of the same
Act, none of the aforesaid terms are even attempted to be defined and cannot be
defined, the result being that 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. In fact, a large number of
innocent persons have been booked and many instances have been given in the
form of a note to the Court. The enforcement of the said Section would really be
an insidious form of censorship which impairs a core value contained in Article
19(1)(a). In addition, the said Section has a chilling effect on the freedom of
speech and expression. Also, the right of viewers is infringed as such chilling
effect would not give them the benefit of many shades of grey in terms of various
points of view that could be viewed over the internet.

The petitioners also contend that their rights under Articles 14 and 21 are
breached inasmuch there is no intelligible differentia between those who use the
internet and those who by words spoken or written use other mediums of
communication. 6. In reply, Mr. Tushar Mehta, learned Additional Solicitor
General defended the constitutionality of Section 66A. He argued that the
legislature is in the best position to understand and appreciate the needs of the
people. The Court will, therefore, interfere with the legislative process only
when a statute is clearly violative of the rights conferred on the citizen under
Part-III of the Constitution. There is a presumption in favour of the
constitutionality of an enactment. Further, the Court would so construe a statute
to make it workable and in doing so can read into it or read down the provisions
that are impugned. The Constitution does not impose impossible standards of
determining validity. Mere possibility of abuse of a provision cannot be a ground
to declare a provision invalid. Loose language may have been used in Section
66A to deal with novel methods of disturbing other people's rights by using the
internet as a tool to do so. Further, vagueness is not a ground to declare a
statute unconstitutional if the statute is otherwise legislatively competent and
non-arbitrary. He cited a large number of judgments before us both from this
Court and from overseas to buttress his submissions.

Freedom of Speech and Expression Article 19(1)(a) of the Constitution of India

states as follows:

"Article 19. Protection of certain rights regarding freedom of speech, etc.- (1) All
citizens shall have the right-

(a) to freedom of speech and expression;"

Article 19(2) states:

"Article 19. Protection of certain rights regarding freedom of speech, etc.- (2)
Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes re
asonable restrictions on the exercise of the right conferred by the said sub-
clause in the interests of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an
offence."

. The Preamble of the Constitution of India inter alia speaks of liberty of thought,
expression, belief, faith and worship. It also says that India is a sovereign
democratic republic. It cannot be over emphasized that when it comes to
democracy, liberty of thought and expression is a cardinal value that is of
paramount significance under our constitutional scheme.

Various judgments of this Court have referred to the importance of freedom of

speech and expression both from the point of view of the liberty of the individual
and from the point of view of our democratic form of government. For example,
in the early case of Romesh Thappar v. State of Madras, [1950] S.C.R. 594 at
602, this Court stated that freedom of speech lay at the foundation of all
democratic organizations. In Sakal Papers (P) Ltd. & Ors. v. Union of India,
[1962] 3 S.C.R. 842 at 866, 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. In a separate concurring
judgment Beg,J. said, in Bennett Coleman & Co. & Ors. v. Union of India & Ors.,
[1973] 2 S.C.R. 757 at 829, 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.[2]

Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 this Court stated,
in paragraph 45 that the importance of freedom of speech and expression
though not absolute was necessary as we need to tolerate unpopular views. This
right requires the free flow of opinions and ideas essential to sustain the
collective life of the citizenry. While an informed citizenry is a pre-condition for
meaningful governance, the culture of open dialogue is generally of great
societal importance.
This last judgment is important in that it refers to the "market place of ideas"
concept that has permeated American Law. This was put in the felicitous words
of Justice Holmes in his famous dissent in Abrams v. United States, 250 US 616
(1919), thus:

"But when men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas-
that the best test of truth is the power of thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out. That at any rate is the theory of our
Constitution."

Justice Brandeis in his famous concurring judgment in Whitney v. California, 71

L. Ed. 1095 said:

"Those who won our independence believed that the final end of the state was to
make men free to develop their faculties, and that in its government the
deliberative forces should prevail over the arbitrary. They valued liberty both as
an end and as a means. They believed liberty to be the secret of happiness and
courage to be the secret of liberty. They believed that freedom to think as you
will and to speak as you think are means indispensable to the discovery and
spread of political truth; that without free speech and assembly discussion
would be futile; that with them, discussion affords ordinarily adequate
protection against the dissemination of noxious doctrine; that the greatest
menace to freedom is an inert people; that public discussion is a political duty;
and that this should be a fundamental principle of the American government.
They recognized the risks to which all human institutions are subject. But they
knew that order cannot be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought, hope and imagination; that
fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies; and that the fitting remedy for
evil counsels is good ones. Believing in the power of reason as applied through
public discussion, they eschewed silence coerced by law-the argument of force
in its worst form. Recognizing the occasional tyrannies of governing majorities,
they amended the Constitution so that free speech and assembly should be
guaranteed.

Fear of serious injury cannot alone justify 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 fears. To justify suppression of free
speech there must be reasonable ground to fear that serious evil will result if
free speech is practiced. There must be reasonable ground to believe that the
danger apprehended is imminent. It is significant to notice first the differences
between the US First Amendment and Article 19(1)(a) read with Article
19(2). The first important difference is the absoluteness of the U.S. first
Amendment - Congress shall make no law which abridges the freedom of
speech. Second, whereas the U.S. First Amendment speaks of freedom of
speech and of the press, without any reference to "expression", Article
19(1)(a) speaks of freedom of speech and expression without any reference to
"the press". Third, under the US Constitution, speech may be abridged, whereas
under our Constitution, reasonable restrictions may be imposed. Fourth, under
our Constitution such restrictions have to be in the interest of eight designated
subject matters - that is any law seeking to impose a restriction on the freedom
of speech can only pass muster if it is proximately related to any of the eight
subject matters set out in Article 19(2). Viewed from the above perspective,
American judgments have great persuasive value on the content of freedom of
speech and expression and the tests laid down for its infringement. It is only
when it comes to sub- serving the general public interest that there is the world
of a difference. This is perhaps why in Kameshwar Prasad & Ors. v. The State of
Bihar & Anr., 1962 Supp. (3) S.C.R. 369, this Court held:

"As regards these decisions of the American Courts, it should be borne in mind
that though the First Amendment to the Constitution of the United State reading
"Congress shall make no law.... abridging the freedom of speech..." appears to
confer no power on the Congress to impose any restriction on the exercise of
the guaranteed right, still it has always been understood that the freedom
guaranteed is subject to the police power

In a 122-page long judgement, which extensively discussed Indian, English and

US jurisprudence on free speech, the Supreme Court struck down Section 66-A
of the Information Technology Act, read down Section 79 of the Information
Technology Act and the related rules, and affirmed the constitutionality of
Section 69 of the Act.
Speaking for the Court, Justice Nariman discussed the various standards which
are applicable to adjudge when restrictions on speech can be deemed
reasonable, under Article 19(2) of the Indian Constitution. The Court held that
Section 66-A was vague and over-broad, and therefore fell foul of Article
19(1)(a), since the statute was not narrowly tailored to specific instances of
speech which it sought to curb. Importantly, the Court also considered the
'chilling effect' on speech caused by vague and over-broad statutory language
as a rationale for striking down the provision. Further, the Court held that the
'public order' restriction under Article 19(2) of the Constitution would not apply
to cases of 'advocacy', but only to 'incitement', specifically incitement which has
a proximate relation to public disorder.
Of the challenge on the grounds under Article 14 of the Constitution of India, the
Court held that "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. 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." [7]
The Supreme Court further read down Section 79 and Rule 3(4) of the
Intermediaries Guidelines, under the Act, which deals with the liability of
intermediaries, mostly those which host content and provide online services.
Whereas the Section itself uses the term 'receiving actual knowledge', of the
illegal material as the standard at which the intermediary is liable for removing
content, the Court held that it must be read to mean knowledge received that a
Court order has been passed asking it to take down the infringing material.
Finally, the Court also upheld the secret blocking process under Section 69 of
the Act, by which the Government can choose to take down content from the
Internet, holding that it did not suffer from the infirmities in Section 66A or
Section 79, and is a narrowly drawn provision with adequate safeguards.

VAGUENESS

When determining whether the provision was unconstitutional due to its

vagueness, the Supreme Court stressed the fact that laws should be drafted so
that a person of ordinary intelligence is given a reasonable opportunity to know
what is prohibited. The Supreme Court also stressed that a provision should also
provide clear guidance to authorities and courts so that it is not liable to suffer
from arbitrary and discriminatory application.

The Supreme Court found section 66A to be completely open ended, undefined,
and vague. It failed to narrowly and closely define the contours of the offence.
The Supreme Court pointed out that all of the words in section 66A had a
nebulous meaning. For example, something that is offensive to one person may
not be offensive to another.

The Supreme Court drew attention to two UK cases, DPP v Collins (2006) 1 WLR
2223 and Chambers v DPP [2013] 1 WLR 1833. In these cases, the UK Courts
considered the UK equivalent to section 66A. The Supreme Court attached
significance to the fact that in these cases the courts of first instance and
appellate courts had reached different decisions on the basis of the same set of
facts. For example, in Chambers the Crown Court would have convicted Paul
Chambers for having sent a “menacing” message, whereas the Queen’s Bench
acquitted him on the same facts. The Supreme Court reasoned that [pdf];

[i]f 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.

The Supreme Court concluded that section 66A was unconstitutional as it was
drafted so widely that it could cover virtually any opinion on any subject that
dissented with the mores of the day. [83] Moreover, the provision was widely
drafted so as to include information of scientific, literary or artistic value.

Conclusion

This is a very important judgment from the Supreme Court of India, in which the
two judge bench sought to narrowly define the circumstances in which freedom
of speech and expression could legitimately be curtailed under India’s
Constitution. Moreover, the Supreme Court recognised that the same level of
constitutional scrutiny would be given to laws which seek to regulate speech
online as would be applied to laws regulating more traditional media.

In its judgment the Supreme C ourt also upheld the constitutionality of section
69A of the Information Technology Act, which provides a system for the blocking
of information online by way of an order from a member of Central Government.
The Supreme Court reasoned that appropriate safeguards were built into the
legislative provision, and the circumstances under which it applied were
narrowly tailored to three of the designated subjects in Article 19(2). The
Supreme Court also read down section 79 of the Information Technology Act on
intermediary liability. The provision must now be read as providing for
intermediary liability only where an intermediary has received actual knowledge
from a court order or on being notified by Government that unlawful acts related
to Article 19(2) are going to be committed, and that intermediary had failed to
expeditiously remove or disable access to such information.

In its judgment, the Supreme Court demonstrates its unwavering commitment to

the specific terms of Article 19(2) under which freedom of speech and
expression can be legitimately restricted. In doing so, the Supreme Court
highlights the clear differences between Article 19(2) of the Constitution and
similar provisions in international human rights treaties. For example, Article
19(2) does not recognise the more broadly defined “legitimate aim” of
“protecting the rights of others”