RAYAT COLLEGE OF

LAW
RAILMAJRA
Information Technology law
PROJECT REPORT ON

Shreya Singhal v Union of India (2015)

Submitted To : Submitted By:

Ms. Kiran Atin Kumar
(Asst. Prof. of Law) B.Com LLB (Hons.) 10TH
. SEM
16611
ACKNOWLEDGMENT
I would like to express my special thanks of gratitude to my
Information Technology Law professor Ms. Kiran for their able
guidance and support in completing my project on Shreya
Singhal v Union of India (2015) . She had been very kind and
patient while suggesting me the outlines of this project. Last but
not least, I would like to thank my friends who helped me a lot
in gathering information and guiding me from time to time in
making this project .
Thanks again to all who supported and helped me a lot .

Atin Kumar (16611)

Introduction:
One of the most important elements for a healthy democracy is establishing a
space where citizens can participate completely and effectively in the
decision-making process of the particular country. Significantly, Constitution
of India also guarantees every citizen the Right to freedom of speech and
expression, this right is not only guaranteed by constitution but also through
various international conventions like International Covenant on Civil and
Political Rights (ICCPR), Universal Declaration of Human Rights (UDHR)
and European Conventions on Human Rights and Fundamental Freedom.

At the same time, cases regarding hatred, false information and Sensational
reporting of critical issues in order to obtain viewership is also increasing.
Therefore, in order to maintain sovereignty and integrity of country the
Government also imposes some reasonable restrictions, because the right to
freedom of speech and expression under the constitution of India is not
absolute.
Shreya Singhal vs Union of India is a landmark case which has created
significant impact in the history of Indian legal system. This case revolves
around the fundamental right to freedom of speech and expression guaranteed
in Article 19(1)(a) of the Indian Constitution.

In this case under Article 32 of the Indian Constitution, Ten criminal and
civil writ petitions were filed in the Honourable Supreme Court of India.
These writ petitions raised concerns mainly about the provisions of Sections
66 A, 69 A, 79 of the Information Technology Act of 2000 and Section 118
(d) of the Kerala Police Act, with respect to the freedom of speech and
expression guaranteed under the provisions of Article 19 (1) (a) of the
Constitution of India.

Background of the Case

In 2012, the Mumbai Police apprehended two girls, Shaheen Dhada and Rinu
Srinivasan, for posting a lambasted remark in Facebook against the bandh
imposed in the wake of Shiv Sena founder Bal Thackeray’s death. The girls
were later released by the police but the apprehension of them was widely
criticized across the country. It was voiced by many activists that the police
has exploited its power by invoking Section 66A of the Information
Technology Act, 2000 (hereinafter referred to as ‘IT Act’), which prescribes
the punishment for sending obnoxious texts or messages through
communication services and curtailed the fundamental right of speech &
expression enshrined under Article 19(1)(a) of the Indian Constitution. The
offence prescribed under Section 66A of the IT Act comes under the purview
of cognizable offences, which allows police officers to apprehend and
investigate a case without a warrant. Hence, the result of this was that many
uncanny arrests of the people were made by police throughout the country for
publishing any opinion or view which the government termed as ‘obnoxious
content’ but it was mostly demurring political opinions.

After that, in the year 2013, the Union Government recommended a proviso to
the arrest of a person made under Section 66A of the IT Act. The Central
government stated in its advisory that no individual shall be apprehended by
the police without prior authorization of the superior officer, who is not below
the rank of Inspector General of Police. Henceforth, there were numerous
petitions filed by the people across the country to strike down the
unconstitutional provisions of the IT Act. The Apex Court of India clubbed
those petitions into a single PIL and the case came to be known as Shreya
Singhal v. Union of India.

International Legislations Pertaining to the Freedom of Speech and

Expression
The Universal Declaration of Human Rights (UDHR) provides for the right to
free speech and expression under Article 19 of the legislation. It affirms that
each and every person has a fundamental right to hold opinions and views
without any intervention. Apart from it, the International Covenant on Civil
and Political Rights (ICCPR) also safeguards the right to express freely
under Article 19 of it. It explicitly asserts that “everyone shall have the right
to freedom of expressions; this right shall include freedom to seek, receive and
impart information’s and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of
his choice.”

On 5th July 2012, the Human Rights Council of United Nations unanimously
pronounced to safeguard the right to free speech and expression of each and
every individual on the internet. It was the first declaration made by the United
Nations asserting the Human Rights of the netizens must be safeguarded to an
equal extent as it does in the corporeal world.

Facts in Issue
The petitioner filed a writ petition in the public interest under Article 32 of the
Indian Constitution, seeking the Supreme Court of India to declare Section
66A, 69A and 79 of the IT Act ultra-vires to the Constitution of India. It was
asserted in the petition that the wordings of these provisions are wide and
ambiguous. The petitioner further affirmed that the objective of these
provisions are inclined towards its reckless exploitation and thus falls out of
the purview of Article 14, 19(1)(a) and 21 of the Indian Constitution. There are
terminologies like menacing, offensive, annoyance, inconvenience,
obstruction, danger, and insult which are not explained in any act. Thus, it
makes it more prone to unwanted abuse. Apart from it, the classification made
between the citizens and netizens of the country was also termed as arbitrary
and contrary to the provision of free speech inscribed under Article 19(1) (a)
of the Indian Constitution. It was asserted that the distinction gives an authority
to the police officers to apprehend netizens for their remarks which can also be
made by the general citizens of the country. Thus, such classification violates
the fundamental right to equality penned down under Article 14 of the Indian
Constitution.

Arguments of the Petitioner

1. Section 66A of the Information Technology Act, 2000 waives off the
right to free speech and expression prescribed under Article 19(1) (a)
of the Indian Constitution and doesn’t come under the purview of
reasonable classification prescribed in Article 19(2).
2. It was also affirmed by the petitioner that the acts of causing
displeasure, exasperations and vexation are out of the ambit of Article
19(2) of the Indian Constitution.
3. Section 66A was also contended to be ambiguous as it doesn’t
describe various terms in it. The terms can be interpreted in a very
broad manner and are subjected to be abused by the executive
authorities.
4. There is no intelligible differentia in the classification of charging
only netizens under Section 66A of the IT Act. Hence, the entire
provision is arbitrary, vague and discriminatory in nature.

Arguments of the Respondent

1. The Respondent contended that it is the obligation of the legislature

to address the needs of the people and the judiciary will only intervene
when a law is inconsistent with Part III of the Indian Constitution. In
addition to it, it was submitted by the respondent that there is a
presumption of the law in question being intra-vires to it.
2. The Court of law can interpret the law in a manner which makes it
justly enforceable and while doing so the intricacies of the provisions
can also be read down by it.
 3. The abuse of legislation by the executive authorities cannot be a sole
reason to pronounce the law ultra-vires to the Constitution of India.
4. Broad terminologies are used in the law to protect the rights of citizens
from those who infringe them by the means of this medium.
5. The ambiguity of law is not a ground to pronounce a legislation ultra-
vires to the Constitution of India, especially when it is deemed to be
qualified and just in nature on the other aspects.

Liberty to Speech And Expression

The liberty to speech and expression is assured by the Preamble of the Indian
Constitution and is deemed to be of utmost importance in a democratic
country. The fundamental right of free speech and expression is also embedded
under Article 19 of the Indian Constitution which gives liberty to every citizen
of this country to hold opinions and views. This was further affirmed in the
landmark case of Maneka Gandhi v. Union of India. In this case, the Apex
Court of India held that there are no territorial restrictions on the liberty to
express & hold opinions and it is equally applicable in foreign territories as
well. After that, in the case of Romesh Thappar v. State of Madras, the Apex
Court of India further interpreted the scope of Article 19 and rightly
pronounced that the fundamental right of speech and expression also
encompasses freedom of media to express views and opinions as well. In fact,
the liberty to hold opinions by the media houses is considered to be of supreme
importance among all the liberties provided by the Indian Constitution because
it is necessary for the proper functioning of democratic institutions. The same
was pronounced in the case of Bennett Coleman vs. Union of India. However,
the scope of Article 19 was still opined to have certain ambiguities in it, which
hadn’t been dissipated. The rising issue of endless transmission of false and
malicious one-sided information by the members of the society was a prime
example of it. As a result, the Apex Court of India took cognizance of this
escalating problem and put an end to it in the case of Union of India v.
Association for Democratic Reforms and Anr. In this case, it was held that the
prejudiced transmission of information, red herrings and non-information leads
to a misinformed nation which is a threat to democracy. At last, in the case
of S. Khushboo vs. Kanniamal and Anr, the fate of Article 19 was decided as
the Supreme Court of India asserted that the liberty to speech and expression
is conditional but it is very vital in nature as we are required to bear unpopular
views and opinions of the society. Therefore, it can be ascertained that the
fundamental right of free speech and expression signifies a free flow of
opinions and perceived as an indispensable right to sustain a collective life. In
other words, one can say that tradition of social discourse, by and large, is of
great communal significance.

Comparison Between U.S. And Indian Freedom of Speech and

Expression
In the case of Whitney v. California, Justice Brandeis has rightly affirmed
that “Liberty should be treated as a means as well as an end and to justify
suppression of free speech there should be a reasonable explanation to fear
that serious evil will result if such free speech is practiced.” Taking into
deliberation the view of Justice Brandeis, the Apex Court of United States has
thoroughly discussed in its judicial recourse as to whether the judicial
pronouncements of U.S. Courts are taken into consideration while interpreting
the scope of Article 19 of the U.S. Constitution. Henceforth, the Supreme Court
made three necessary distinctions:

1. Firstly, the 1st amendment of United States is absolute and congress

has no authority to make any law which curtails the fundamental right
of free speech and expression provided under Article 19 of the U.S.
Constitution.
2. Secondly, the 1st amendment of U.S. provides an essential liberty to
speech for media houses and doesn’t make any reference to
 ‘expression’ in it, whereas Article 19(1) (a) of the Indian Constitution
doesn’t explicitly include freedom of speech for media houses.
3. Thirdly, according to U.S. law, the freedom of speech will be curtailed
if it is found to be indecent, defamatory and vulgar, whereas under
Indian law, such a right can only be curtailed if it doesn’t falls under
the eight elements prescribed under Article 19(2) of the Indian
Constitution.
Hence, the only distinction between the U.S. and India’s liberty to speech and
expression is that in U.S., there is undeniable prerequisite to attain an essential
sovereign policy or it should pass the muster test, but in India, the liberty to
speech and expression will be curtailed only if it doesn’t satisfy the eight
conditions penned down under Article 19(2) of the Indian Constitution.

Constitutionality of Section 66A of The Information Technology Act,

2000
In the context of information, there are three vital ingredients to comprehend
the liberty of free speech and expression. The first is the discussion of the
cause; the second is the advocacy of its factual existence and third is
provocation among people. The heart of Article 19(1) (a) of the Indian
Constitution can be determined over the discussion & advocacy of any specific
fact and opinion. It is only when such expressions provoke a certain section of
people; Article 19(2) of the Indian Constitution gets initiated.

Any legislation enacted to restrict the freedom of speech and expression can
cause public turmoil and affects the autonomy & integrity of the country. But,
there are certain situations in which it is necessary to curtail the freedom of
speech and expression in order to prevail public harmony in the society.
However, such an imposition of restriction on the fundamental right of speech
and expression has to be rational and intra-vires. Hence, in order to determine
this; article 19(2) of the Indian Constitution has been included to give eight
essential conditions for the reasonable classification of any restriction imposed
upon the ‘right to speech’, which has not been satisfied by the section 66A of
the IT Act.

Section 66A – An Ambiguous Provision

The terminologies used in Section 66A of the IT Act are deemed to be very
ambiguous and loose in nature. It is so vague that it is very hard to put up a
charge on an accused under this section distinctly. The executive authority is
also not capable to comprehend the basis for bifurcating a particular speech or
expression falling under the purview of this provision. For this reason, it is tend
to be argued that what might be obnoxious to one individual might not be to
the other and this makes the provision constitutionally vague in its entirety.

A legislation having ambiguities in its effective interpretation is declared to be

void under the legal system of India. The same has been affirmed in the case
of Kartar Singh v. State of Punjab. In this case, the court of law affirmed that
an enactment must be proclaimed to be void for having ambiguous
characteristics in its prohibitory application. Therefore, the fundamental
doctrine in our jurisprudence system asserts that a law which regulates people
in the society should provide a just and rational notice of their conduct being
unlawful or lawful. In the case of Connally v. General Construction Co., the
court of law held that an enactment which either authorizes or forbids to do a
particular act or omission in a language which is so ambiguous in its nature
that an individual of ordinary intellect must essentially presume its
interpretation and gets perplex by its application, infringes the fundamental of
due process of law. Hence, the Apex Court of India accepted the submissions
of petitioner in the instant case and settled on the ambiguity of the section 66A.

Doctrine of Severability
There are certain cases in which the court of law is unpleased with the
constitutionality of a law. In such cases, the doctrine of severability comes into
a play. The raison d’être given by the respondent is ambiguous and irrational
as it doesn’t assert which fraction or proportion of the Section 66A can be
spared. Section 66A of the Information Technology Act, 2000 is legislated in
a language which is prone to be misused by the authorities, and it contains an
arbitrary restriction on the ‘freedom of speech and expression’ which is
inconsistent with the Article 19(2) of the Indian Constitution. As stated
under Article 13(1) of the Indian Constitution, any existing law inconsistent
with Part III of the Constitution is only null and void to the fraction of its
discrepancy and not further.

In the historical case of Romesh Thappar v. State of Madras, the question

pertaining to the constitutional validity of Section 9(1A) of the Madras
Maintenance of Public Order Act, 1949 came before the court of law. The
provision authorized the regional government to bar the ingress and circulation
of a newspaper for the maintenance of public order and safety in that region.
After this, the Constitution of India came into force and question raised on
whether the provision is safeguarded under Article 19(2) of the Indian
Constitution. Hence, the Hon’ble Supreme Court, after hearing the pleas of
both sides, asserted that the reason behind the establishment of Section 9(1-A)
is wider than that of Article 19(2) and it is impossible to severe the section
under its shield. Therefore, in such cases, the impugned legislation will fail in
its entirety. This judgment of the Apex Court has acted as an important judicial
precedent in the Shreya Singhal’s case because of its rational justification over
the scope of liberty to speech and expression in our country.

Infringement of Article 14
In the Shreya Singhal’s case, the petitioner had affirmed that those offences
which are ambiguous, irrational and discriminatory in nature tend to violate the
Article 14 of the Indian Constitution and results in the prejudiced application
of the law. In addition to it, it was asserted by the petitioner that section 66A
of the IT Act doesn’t conform to the essentialities of twin test. There is no
intelligible differentia present between the public transmission of messages
through live speech and the internet. Therefore, it is arbitrary to form a new
class of offenders on the basis of it. It was also affirmed that Section 66A of
the IT Act sanctions people with maximum 3 years of imprisonment, which is
contrary to the offence of defamation having 2 years of maximum sentence
prescribed in it. Along with this, the offence of defamation falls under the
purview of non-cognizable offence whereas an offence under Section 66 is
cognizable.

The Supreme Court disagreed with the submission of the petitioner and
affirmed that there is an intelligible differentia present between the public
transmission of messages through live speech and the internet. It was stated by
the court of law that the transmission of obnoxious texts through the internet is
cost-effective and less time consuming as compared to live speech. Therefore,
such messages get available to the wider public during a short of span of time
and create a chance of expediting public disorder. Hence, the petitioner
challenges to Article 14 got failed before the Apex Court of law.

Revocation of Section 118(D) of The Kerala Police Act

Apart from Section 66A of the IT Act, Section 118(d) of the Kerala Police
Act was also challenged in the Apex Court. This section affirms the offence of
causing infuriation to any individual by transmission of statements or messages
through any means of communication. The petitioner averred that the
provisions embedded under Section 118(d) of the Kerala Police Act are similar
to that of Section 66A of the IT Act. Hence, it was similarly contended to be
out of the purview of reasonable classifications prescribed under Article 19(2)
of the Indian Constitution and termed to be violative of Article 19(1)(a).
Therefore, the Apex Court took cognizance of its constitutionality and held it
to be ultra-vires to an equal extent as it does for Section 66A of the IT Act.

Abrogation of Section 79
As per Section 69A of the IT Act, a website can be blocked only after
following numerous procedural rules and regulations including listening to the
originator and intermediary. After that, the website can be taken down either
by the Designated Officer while abiding with the 2009 Rules or when the
Hon’ble Court of law authorizes the Designated officer to do so. However,
there is nowhere mentioned under Section 69A read with 2009 Rules that the
intermediary has a liability to block particular information from the digital
realm. The sole ground for that to happen is when the intermediary doesn’t
block an explicit content expeditiously upon a prompt order of the court. This
is the only ground mentioned under Section 79(3)(b) of the IT act, otherwise,
it will be very difficult for the intermediaries like Instagram, Yahoo etc. to
comply with the orders when millions of requests are awaiting, and the
intermediary is then obligated to authenticate as to which requests are rational
and which are not.

It should be noted that the direction or order given by the court of law should
be in compliance with the subject matter penned down under Article 19(2) of
the Indian Constitution. Therefore, bearing this in mind, the Apex Court of
India in the instant case proclaimed that the illegal acts or omissions prescribed
beyond Article 19(2) don’t come under the purview of Section 79 and
consequently rejected the plea of the petitioner to strike down Section 79 of
the IT Act.

Judicial Pronouncement at a Glance

1. Section 66 of the IT Act was abrogated in its entirety for infringing

Article 19(1)(a) of the Indian Constitution and not protected under
Article 19(2).
2. Section 69A and Information Technology (Procedure and Safeguards
for Interception, Monitoring and Decryption of Information) Rules,
2009 was held intra-vires to the Constitution of India.
3. Section 79 was affirmed to be legitimate subject to the reading down
of Section 79(3)(b) of the IT Act.
4. Section 118(d) of the Kerala Police Act was also struck down by the
Apex Court of India.
Overview of the Judicial Pronouncement
The judicial pronouncement by the division bench of the Supreme Court has
secured liberty to speech and expression provided to the people under Article
19(1) (a) of the Indian Constitution and restricted irrational application of
power by the executives of this country. It has also provided crystal clear
guidelines for the legislature to enact laws in relation to the freedom of speech
and expression with certain reasonable restrictions binding on it. However, it
should be noted that it is a democratic right of each and every viewer to be
familiar with the reason for constraining his/her viewership of specific content
in the digital realm, which had been missed to implore by the Apex Court in
its judgement.

The Supreme Court of India has relied on the technical, convoluted and dicey
process of state to understand the potential and competence of parties involved.
For example, the rules enacted in 2009 have been enforced with an inference
that firstly, the laws pertaining to the website blocking provides a rational
chance of being contacted and notified to the alleged offender and secondly, it
gives a presumption that the intermediary will justify and defend the online
content from being taken down by the executive body. These deductions are
practically inept and extraneous.

The offences committed through the Internet are more critical in nature due to
its geographic spread and anonymity. It provides a virtual shield to the content-
originator making it highly unlikely for him/her to get caught. Apart from it,
the intermediaries will also never spend their resources in safeguarding the
content of third parties and are going refuse to mingle with any kind of dispute.
Hence, the content available on the internet will be available to the larger
audience throughout the world despite the proclamation from the executive
authorities to ban it.
The rule of blocking has been prescribed to be executed in secrecy
under Rule 16 of the Information Technology (Procedures and Safeguards for
Interception, Monitoring and Decryption of Information) Rules, 2009. It
affirms that the confidentiality of blocking order should be maintained while
pronouncing such an order. Although, this rule was argued in the Shreya
Singhal case but it was left untouched by the Supreme Court in its judgment.
Therefore, in order to uphold the doctrine of transparency, a notice should be
published on the hosting page proclaiming blocking orders of the government
for the specified content. This will not only aware the content-creators and
viewers about the content ordered to be put down by the executive authority
but will also promote lucidity in the digital realm.
Conclusion:
Because of numerous reasons, Shreya Singhal vs. Union of India (U.O.I) is
one of the landmark and significant judgment with regards to the freedom of
speech and expression in the history of Indian Legal System. In this case,
Honorable supreme court effectively protected the rights of people as well as
safeguarded the interest of society.

The Judgement given by Honorable Judges J. Chelameswar and R.F.

Nariman not only upheld the fundamental right of citizen to freedom of
speech and expression but certainly expanded the limits for freedom of
speech and expression. In a way we can say that this judgement, is a turning
point for Article 19(1)(a) because everyone has a right to express their
political opinions without any fear of having any arbitrary and unreasonable
restrictions.

But even though, Section 66A of the IT Act, 2000 has been struck down by
Supreme Court's Order dated 24th March, 2015 numerous cases has been
filed against the innocent people under Section 66A. Police officers and even
subordinate court judges were not aware of this supreme court's order.

Therefore, state must take effective actions without merely providing

circulars to the Higher officials. Then only this landmark judgment can be
practical and fruitful. Even thousand culprits can escape, but, one innocent
person should not be punished! As a whole this is one of the enlightening
case. And the landmark judgment is really appreciable and most importantly
it upholds and increases the people's trust on Judiciary!
BIBLIOGRAPHY
References:
➢ The Centre for Internet and Society, http://cis-india.org/internet-
governance/resources/section-66A-information-technology-act
➢ The Libertatem Magazine, http://mylibertatem.com/shreya-
singhal-v-union-of-india-the-landmark-sec-66a-case/
➢ Indian Kanoon, https://indiankanoon.org/doc/110813550/