IN THE SUPREME COURT OF INDIA
Decided on: 25.07.1989
APPELLANT: Shreya Singhal
RESPONDENT: Union of India
Citation: AIR 2015 SC 1523
Bench: Justice Chelameswar and Rohinton Fali Nariman, JJ.
Facts of the Case
- In November 2012, two girls named Shaheen Dhada and Rinu Srinivasan were arrested by Mumbai police under Section 66A of the Information Technology Act, 2000 for expressing their displeasure on the bandh called in the wake of Balasaheb Thackeray’s death.
- One of the girls posted her views on Facebook and the second girl merely liked the post. The arrested girls were released after some time and the criminal charges were dropped against them. However, the arrest had attracted a large number of protests across the country.
- Moreover, a large number of objectionable arrests were made throughout the country under Section 66A of the Information Technology Act, 2000 (which aims to provide punishment for sending offensive messages through computer source or communication device) for posting objectionable content, which were mainly dissenting political opinions.
- In January 2013, the central government released an advisory stating that no person can be arrested without the police having prior approval of inspector general of police or any other senior official to him/her under section 66A of IT Act, 2000.
- The writ petition was filled by advocate Shreya Singhal in the year 2013 in Public Interest under Article 32 of Constitution of India seeking to declare Section 66A, Section 69 and Section 79 of the IT Act, 2000 Constitutionally invalid.
Issues for Consideration
I. Whether Section 66A of the Information Technology Act, 2000 is constitutionally valid or not?
II. Whether Section 69A of the Information Technology Act, 2000 and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid or not?
III. Whether Section 79 of the Information Technology Act, 2000 and the Information Technology “Intermediary Guidelines” Rules, 2011 are constitutionally valid or not?
IV. Whether Section 118(d) of the Kerala Police Act, 2011 is constitutionally valid or not?
Arguments of the Parties
- Section 66A violates a citizen’s Fundamental Right of Freedom of Speech and Expression guaranteed under Article 19(1)(a) and is not saved by any of the 8 reasonable restriction mentioned under Article19(2).
- Causing of annoyance, danger, obstruction, injury, criminal intimidation, hatred or ill-will which the Section 66A seeks to criminalise do not fall under any of the 8 grounds of imposing reasonable restriction on freedom of speech and expression under Article 19(2) of the Constitution.
- Section 66A suffers from the vice of vagueness, as it does not clearly define the words used in it. Moreover, the terminologies used are very subjective in nature and cannot be defined. Because of it would be open to the authorities to be as arbitrary and fanciful as they like while booking a person under the said Section. Further, there is absence of limitation of power.
- Section 66A has a chilling effect on the chilling effect on the freedom of speech and expression. Due to such chilling effect, the Right to Know of an individual would also get affected.
- Article 14 violated, as there is no intelligible differentia in differentiating between those who use the internet and those who use other mediums of communication. Punishing someone just because he uses internet to express his views is discriminatory and violative of Article 14.
- The legislature is best placed in a position where it can consider competing claims. In complex matters, government takes such decision keeping in view several factors and it is not possible for the courts to interfere in such matters. The court will interfere with the law making process only when a law is clearly violative of the fundamental rights of the people.
- There is always a presumption in favour of the constitutionality of a law or an enactment. Further, the court tends to take an assumption, which is in favour of holding the statute as constitutional.
- Mere factor that some hardship or injustice is caused to someone is no ground to strike down the rule altogether if otherwise the rule appears to be just, fair and reasonable and constitutional. No restriction can be said to be unreasonable merely because in a given case it operates harshly. A mere probability of abuse cannot be a justification to declare a provision invalid.
- Loose Language has been deliberately used in the verbatim of the section to deal with novel method’s of causing harm through internet to safeguard the rights of the people.
OPINION OF THE COURT
The Hon’ble Supreme Court held the Section 66A of the IT Act, 2000 constitutionally valid due to the following reasons:-
- Firstly, the Hon’ble Supreme Court held that the Section 66A does not fall under any of the 8 grounds mentioned for imposing reasonable restrictions on freedom of speech and expression. For the same the Hon’ble Supreme Court analysed the provisions in relation to all the probable grounds through the restriction can be imposed such as public order, defamation and public interest.
- Secondly, the Hon’ble Supreme Court held that the terminologies used in Section 66A of IT Act, 2000 are very vague, as they are not defined in the IT Act, 2000 nor in the General Clauses Act. Moreover, the court held that the terminologies are very subjective and broad in nature and they cannot be defined. Due to the following reasons, it gives very wide and excessive power to the authorities, which can result and has resulted in arbitrary usage of such power.
- Thirdly, the Hon’ble Supreme Court held that such vesting and usage of such excessive and arbitrary power has a chilling effect on the freedom of speech and expression under Article 19(1)(a) of the constitution. Moreover, the court considered this section a tool to curb dissent and free speech. It was also said to have a chilling effect on people’s right to know as it acts a deterrence for a person to provide information on the internet.
- Fourthly, the Hon’ble Supreme Court substantiated its point by highlighting the importance of protecting the freedom of speech and expression in a democracy. Hon’ble Supreme Court highlighted its previous judgement such as RomeshThappar v. State of Punjab and BrijBhushan v. Union Territory of Delhi. Hon’ble Supreme also said that the freedom of speech and expression the most basic human right is considered as bulwark of democracy and Section 66A takes away that right from the citizens.
- Lastly, the Hon’ble Supreme Court held that there is intelligible differentia as the internet provides a platform to a person, which requires very little or no effort to communicate their views and anything posted on the internet travels with speed of light to millions of peoples all over the world. Due to which the Hon’ble Supreme Court declared that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can be created by legislation. Due to which the Section 66A was not held to be violative of Article 14.
The Hon’ble Supreme Court held Section 69A of the IT Act, 2000 (Enables the Government or its appropriate agency to ban and block a website) constitutionally valid as it has ample amount safeguards to prevent its misuse which includes a hearing to the originator and intermediary. Hon’ble Supreme Court stated that the order passed by the government or its agency or court should strictly be in accordance with Article 19(2) of the constitution. If not it would be held invalid.
The Hon’ble Supreme Court appreciated the fact that Section 79 is an exemption provision, which exempts intermediaries from any liability arising from third party action if all due diligence is taken by it. The reason for the same was given by Hon’ble Court that if such provisions are not kept then intermediaries like Google and Facebook to check every single query made to it for removing a content. The intermediaries should only remove a content when it deems fit and when a court order is passed to do so under Section 79(3)(b) of the IT Act, 2000. Due to the following reasons, the Court held it Constitutionally valid.
Section 118(d) of the Kerala Police Act, 2011, which had a similar verbatim to Section 66A of the IT Act, 2000 was held constitutionally invalid by the Hon’ble Supreme Court on the same grounds as Section 66A of IT Act, 2000.
The Division Bench of the Hon’ble Supreme Court headed by Justice Nariman gave the judgement that:-
(a) Section 66A of the Information Technology Act, 2000 is constitutionally invalid as it is violative Article 19(1)(a) and not saved Under Article 19(2) and is struck down entirely.
(b) Section 69A of the Information Technology Act, 2000 and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.
(c) Section 79 of the Information Technology Act, 2000 and the Information Technology “Intermediary Guidelines” Rules, 2011 are constitutionally valid.
(d) Section 118(d) of the Kerala Police Act, 2011 is constitutionally invalid as it is violative Article 19(1)(a) and not saved Under Article 19(2) and is struck down entirely.
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