Shreya Singhal vs Union of India: Right to Freedom of Speech on Social Media

Facts And Procedural History 

1. In 2012 two girls named Shaheen Dhada and Rinu Srinivasan were arrested by the Mumbai Police for posting their displeasure on Facebook over the Bandh called due to the death of renowned Bal Thackrey.
2. Police later released both the girls and dismissed the criminal charges against them. But, it still led to widespread protest nationwide.
3. It was contended by the protestors that section 66A of the Information and Technology Act 2000 was misused by the police to suppress the people’s voice and violated the right to freedom of speech under article 19(1)a.
4. Initially, the Court in a matter of “Singhal Vs. Union of India”issued an interim measure regarding arrest under this section that “any arrest under this act shall be approved by the senior police officer”.

Argument

Petitioner–

1. Petitioner contended that section 66A violates the Fundamental Right to Freedom of Speech and expression and is not aligned to any of the exceptions provided under Article 19(2) of the Constitution of India.
2. As per the petition, causing annoyance, danger, obstruction, inconvenience, insult, hatred or, ill-will are out of the purview of exception to Article 19(1) provided under Article 19(2).
3. Further, it was contended that Section 66A has a vague definition as non of the term are clearly defined under the act. The authority may interpret the section as per their discretion which may not align with the public notion, resulting prosecution of an innocent person.
4. It was also contended that enforcement of this violative section would result in unreasonable censorship, which violates Article 19(1) of the Constitution of India.
5. Lastly, it was contended that the implication of section 66A also infringe Article 14 & 21 of the Constitution as there stands no intelligible differentia to differentiate between the medium of communication by using social media or spoken word. To punish someone just for using another medium for expressing his/her thought is per se discriminatory and violative of Article 14.

Defendant-

1. Union of India represented by ASG Mr. Tushar Mehta submitted before the Court that the disputed statute is to understand and appreciate the needs of the people. The Court would interfere in the business of the legislative process to entertain this plea.
2. Further learned counsel submitted that the Court ought to interfere in the legislative process only when it seems to be the clear violation of the rights conferred to the citizen under part-III of the Constitution of India.
3. Mehta also contended that the mere possibility of misuse of the section is not a reasonable ground to declare it unconstitutional. Also, it was submitted that vagueness of the section is no ground to declare a statute unconstitutional.

Ratio of the case-

The Supreme Court of India observed that,

1. The petition filed under Article 32 of the Constitution of India brought an important and far-sighted question concerning the fundamental right of free speech and expression under Article 19(1) of the Constitution of India. The matter in hand raises serious misuse of Section 66A of IT Act 2000 which was inserted by Amendment Act in the year 2009 and enacted on 27 October 2009 respectively. The petition also challenges the validity of Section 69A which deals with the “power to issue direction for blocking for public access of any information through any computer”.
2. It was of no doubt to the Hon’ble Court that the Preamble of the Constitution speaks of liberty of thought, expression, belief, faith, and worship. When it comes to a democratic state, liberty of thought and expression is a cardinal treasure and it is paramount in a nation’s constitutional scheme.
3. The Hon’ble Supreme Court referred to its judgment ofRomesh Thapar Vs State of Madras, 1950 S.C.R. 594 AT 602, where it stated that freedom of speech and expression lay at the foundation of all the democratic nations. The Constitution Bench in Shakal Papers Pvt. Ltd. & Ors. Vs. Union of India, 1963, 3 S.C.R. 842 of 866, held that freedom of speech and expression of an opinion is of paramount significance in a democratic state. And most importantly, in Bennett Coleman & Co. and Ors. Vs. Union of India & Ors, (1973) 2 S.C.R. 757 at 829, held that the freedom of speech and expression of the press is the Ark of the Covenant of Democracy as the public criticism is essential for the working of its institution.
4. Court emphasized three fundamental concepts in understanding the most basic of human rights. First is discussion, second is advocacy, and third is incitement. way court said that merely a discussion or even advocacy over any issue, maybe heightened or unpopular, is in the heart of Article 19(1)a. It is only at the stage of incitement when Article 19(2) kicks in. According to the Court, it is at this stage when legislation may be made to curtail the speech and expression that can lead to public disorder, or tends to affect the sovereignty and integrity of India, security of the State, and friendly relation with foreign countries. The court made the above statement because the word “public order” was mentioned numerous times by both parties.
5. The court found the contention of the petitioner correct that ‘the right to know’ of the public is directly affected by Section 66A. The Court was concerned about the laxity in law to distinguish between mere discussion or advocacy of a particular point of view which may be inconvenient or grossly annoying or offensive. Hence, Court accepted the contention of the petitioner regarding the hamper of the freedom of speech and expression of the citizen of India at large due to Section 66A of the IT Act.
6. As far as the ‘reasonable restriction’ is concerned, Court had previously in the case ofChintaman Rao Vs. The State of Madhya Pradesh, 1950 S.C.R. 759 held that the phrase “reasonable restriction” states that limitation bar imposed on the person in the enjoyment of the right should not be violative or excessive, the test of which shall be based in the public interest. The word “reasonable” on its own implies intelligent care and deliberation. Legislation that stands arbitrarily and excessively infringes the right cannot be said to be in the public interest.

Judgment 

In the light of the above observations, Court found no proximate connection of Section 66A with reasonable restriction to curb incitement to commit an offense. The written word may be sent over the internet with the realm of “discussion’ or “advocacy” purely of a “particular point of view”.

Further Court added, merely causing annoyance, inconvenience, danger, or subject to being grossly offensive are not an offense under Indian Penal Code. They certainly may stand as an ingredient in offenses under IPC but are not an offense in standalone.

Hence the Court held that Section 66A severely curtails information that is transmitted over the internet and does not fall under any exceptions under Article 19(2) of the Constitution, declared to be unconstitutional. 

Discussion and advocacy are the essential elements of human rights in the purview of freedom of speech and expression. It is when it reaches incitement, legislation can be brought to curtail it. 

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