INTRODUCTION
“Our quest for technology should not be oblivious to the country’s real problems: social exclusion, impoverishment and marginalisation. Dignity and rights of individuals cannot be based on algorithms or probabilities.” – Justice Chandrachud.
In Singhal v. Union of India (2015), the Supreme Court of India struck down Section 66A of the IT Act, 2000, ruling it unconstitutional for violating the right to freedom of expression under Article 19(1)(a). The case arose when two women were arrested for Facebook posts criticizing Mumbai’s shutdown after a political leader’s death. The Court found the provision vague, overly broad, and lacking a clear link to public order, leading to arbitrary enforcement and a chilling effect on free speech. Consequently, Section 66A was declared void for being unconstitutional.
FACTS
In 2012, Mumbai police arrested two girls, Shaheen Dhada and Rinu Srinivasan, for expressing their disappointment on Facebook regarding a bandh imposed after the death of Shiv Sena leader Bal Thackeray. Although the girls were later released and the charges dropped, their arrests sparked nationwide protests, highlighting the misuse of police powers under Section 66A of the IT Act. This provision, being cognizable, allowed law enforcement to arrest or investigate individuals without warrants based on alleged objectionable content, often targeting political dissent.
In response, the central government issued an advisory in January 2013, mandating that no arrests be made under Section 66A without prior approval from a senior police official.
A writ petition under Article 32 of the Indian Constitution was subsequently filed, challenging Section 66A as violative of the right to freedom of speech and expression guaranteed under Article 19(1)(a). The petition sought to curb the misuse of the provision following the arrests in Mumbai. Section 66A was not originally part of the IT Act, 2000, but was later added to address emerging cybercrimes such as publishing explicit content, identity theft, phishing, and offensive messages.
The provision outlined three cyber offenses:
- Disseminating information that is grossly offensive or menacing,
- Knowingly transmitting false information to cause annoyance or intimidation, and
- Sending electronic messages to mislead or inconvenience others.
ISSUES RAISED
- Whether Section 66A of the Information Technology Act, 2000, violates the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution, rendering it unconstitutional.
- Whether the provision’s ambiguity and potential for misuse infringe upon the right to life and personal liberty protected under Article 21 of the Constitution.
OBSERVATION
Section 66A of the IT Act and Article 19(1)(a) of the Constitution
Freedom of Speech and Expression
The scope of freedom of speech and expression under Article 19(1)(a) is based on three core principles: discussion, advocacy, and incitement. Mere discussion or advocacy, regardless of how unpopular, falls within the protection of Article 19(1)(a). However, restrictions under Article 19(2) apply only when such expression escalates to incitement, which could lead to public disorder or affect national sovereignty, security, or foreign relations.
Definition and Scope of “Information” Under the IT Act
The IT Act provides an inclusive definition of “information,” focusing on the medium rather than the content. Consequently, Section 66A affects the public’s right to access and share information of any nature—scientific, literary, artistic, or even controversial topics. The provision does not distinguish between harmless discussion or advocacy and incitement, potentially curtailing legitimate speech.
Relationship Between Section 66A and Article 19(2)
Reasonable Restrictions:
In Chintaman Rao v. State of Madhya Pradesh (1950), the Supreme Court defined reasonable restrictions as those that are not arbitrary or excessive. A law must strike a balance between individual rights and societal interests. Section 66A, however, imposes disproportionate and arbitrary restrictions on free speech.
Public Order:
The test for public order assesses whether an act disturbs society at large or affects only an individual. Section 66A does not differentiate between mass dissemination and individual communication, failing to establish a direct link to public disorder.
Clear and Present Danger:
Section 66A does not meet the criteria of the “clear and present danger” test, as it lacks any requirement for a direct tendency to incite public disorder.
Defamation:
For speech to qualify as defamatory, it must harm an individual’s reputation. Section 66A, however, criminalizes content that may be offensive or inconvenient without necessarily causing reputational harm.
Incitement to an Offense:
Section 66A lacks a clear connection to incitement, as it penalizes messages that may simply express a point of view without encouraging illegal actions.
Decency or Morality:
The provision does not fall under the constitutional definitions of decency or morality, as it lacks reference to obscenity and instead targets annoyance or inconvenience.
Vagueness and Overreach
Section 66A lacks clear definitions for key terms such as “grossly offensive” or “menacing,” making it open to arbitrary interpretation. Unlike other provisions in the IT Act, it does not provide specific standards, making it prone to misuse. The vague wording excessively infringes on free speech without a reasonable balance of restrictions.
The law is overly broad, potentially covering any opinion that challenges prevailing norms, leading to a chilling effect on free speech. Due to its expansive scope, Section 66A is unconstitutional as it encompasses both protected and innocent speech.
Abuse and Severability
The argument that a law’s misuse does not invalidate it does not hold in this case. The provision’s broad language makes it susceptible to abuse across different administrations. Additionally, Section 66A cannot be salvaged by severing parts of it, as the entire provision fails to align with constitutional principles.
Article 14: Equality Before the Law
Although the internet differs from traditional media in terms of accessibility and reach, the distinction does not justify the vague and overreaching nature of Section 66A. However, the Court held that creating separate offenses for online speech is valid, and the challenge under Article 14 fails.
Section 118(d) of the Kerala Police Act
Similar to Section 66A, Section 118(d) of the Kerala Police Act was declared unconstitutional for being vague and overbroad, failing to meet the reasonable restrictions under Article 19(2).
Validity of Section 69A and Blocking Rules
Unlike Section 66A, Section 69A, which deals with blocking online content, was upheld as it includes safeguards such as requiring government approval and providing reasons for blocking. The rules allow affected individuals to challenge blocking orders in court, ensuring due process.
Section 79 and Intermediary Guidelines
Section 79 offers exemptions to intermediaries from liability for third-party content but is subject to compliance with takedown requests. The provision was upheld with the condition that takedown requests must be based on a court order or government directive. Certain intermediary guidelines were read down to align with constitutional safeguards, ensuring fair implementation
JUDGMENT
The judgment upholds the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution while preventing the state from arbitrarily exercising power over these freedoms. It also provides clear guidelines for enacting laws that impose reasonable restrictions on fundamental rights. However, it falls short in addressing the need for transparency in website-blocking rules. Further refinement is required to ensure that viewers are informed about the reasons for content restrictions, enabling them to challenge such decisions.
Despite the Supreme Court’s reliance on complex government mechanisms, it operates under assumptions that may not reflect practical realities. The belief that the 2009 website-blocking rules provide content creators with a fair opportunity to be heard and contest blocking orders can be misleading. In many cases, content originators may not be informed, as they could be located in foreign jurisdictions or lack the resources to defend their content. Additionally, intermediaries are unlikely to invest efforts in defending third-party content due to resource constraints, leading to continued enforcement of arbitrary blocking orders that limit access to information.
Furthermore, the blocking process remains shrouded in secrecy due to Rule 16 of the Blocking of Access Rules, which mandates confidentiality regarding blocking orders. Although this provision was challenged in the Shreya Singhal case, the Supreme Court did not address it. To ensure transparency, content hosting platforms should display notifications about blocking orders along with the reasons for such actions, allowing both content creators and viewers to be aware of and challenge the government’s decision.
CONCLUSION
The judgment’s reliance on procedural safeguards assumes that affected parties have a fair chance to respond, but practical difficulties—such as the anonymity and geographical dispersion of content creators, along with intermediaries’ unwillingness to defend third-party content—highlight the need for further improvements. The confidentiality mandated by Rule 16 of the Blocking of Access Rules continues to obscure the process, undermining transparency and accountability.
To better uphold constitutional principles and create a more open and fair digital space, it is crucial to implement mechanisms that notify affected individuals about blocking decisions and provide meaningful opportunities for them to challenge such actions. Bridging these gaps will help build public trust and bring the legal framework in line with the principles of fairness and transparency.
