Extension of the fundamental right to freedom of speech and expression to the online world by the Apex Court
The Supreme Court of India in its judgment of Shreya Singhal vs Union of India delivered on 24 March 2015, addressed the issues raised in several writs with respect to the constitutionality of sections 66A, 69A and 79 of the Information Technology Act, 2000 (IT Act). The judgment has brought an end to a plethora of debates and excessive criticism with regards to the IT Act along with the power it confers on the State to curb freedom of speech and expression, a right guaranteed under Article 19(1)(a) of the Constitution of India.
Section 66A of the IT Act made punishable the sending by computer resource or communication device any offensive or menacing information, any information to cause public annoyance, inconvenience and the like.
Section 69A of the IT Act and rules thereunder bestow power to the government to block public access to any information on computer resource 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 aforesaid.
Section 79(3)(b) of the IT Act and the relating intermediary rules make the intermediary liable in case the intermediary fails to remove/ disable access to information, data or communication link residing in or connected to a computer resource controlled by the intermediary upon receiving actual knowledge or upon government notification.
This verdict has come following atrocious cases of persons being arrested for uploading posts and opinionated comments from their respective accounts on Social Networking sites and for expressing their point of view publicly. In November 2012, two young girls were arrested for allegedly posting content against the Mumbai shut down. Both the girls were charged under Section 66A of the IT Act. A similar incident took place in Uttar Pradesh where a Class XI student was arrested under the same section for allegedly posting defamatory opinion about the political party. The arrest was justified as necessary according to the Circle Officer as according to him it could incite communal tension. There have been similar cases of persons being charged under the sections mentioned in the introductory paragraphs. Following this, a PIL was filed in the Supreme Court in 2012 by a law student contending that Section 66A, Section 69A and Section 79 of the IT Act are unconstitutional being violative of Articles 19(1)(a) and 14 of the Constitution of India, i.e. right to Freedom of Speech and Expression and Right to Equality. This petition was clubbed with nine other petitions and was heard by a division bench of the Apex Court after which this progressive judgment was pronounced.
The Apex Court struck down Section 66A of the IT Act in its entirety as being unconstitutional while upholding the constitutional validity of Section 69A. Further, the Court declared Section 79 as constitutionally valid but subject to being read down with Section 79(3)(B) to mean that content must be taken down under a court order.
Reasoning by the Apex Court:
- Section 66A:
The Supreme Court analysed the provisions of Section 66A of the IT Act in relation to the fundamental right granted under Article 19(1)(a) for freedom of speech and expression under the Constitution. The Apex Court elucidated the three concepts which are essential to comprehend the reach of Article 19(1)(a), i.e. discussion, advocacy and incitement. The Court has held that it is only when discussion or advocacy reaches the level of incitement that the exception to the right laid down under Article 19(1)(a), i.e. Article 19(2) can be triggered allowing state to impose restrictions. It is measuring on this count that the Court has held that section 66A of the Act does not fall within the exception of `reasonable restriction` as laid down under Article 19(2) of the Constitution. For the latter, the Supreme Court analysed each of the elements of Article 19(2) which the Union of India raised in its defence, i.e. public order, decency/ morality, defamation, incitement to an offence and negatived the arguments of Union of India that due to the above elements section 66A falls within the ambit of Article 19(2) of the Constitution.
The Court seemed to have accepted the argument of the Union of India that section 66A is not hit by Article 14 of the Constitution of India, which postulates the fundamental right of right to equality. This is because it recognized an intelligible differentia between speech on the internet and other mediums of communication for which separate offences may be created by the legislation.
The Apex Court held this Section 66A ``affects the freedom of speech and expression of the citizenry of India at large`` as it creates an offence against the Indian citizens who use the internet.
- Section 69A:
The Supreme Court found that this section falls within the elements of `reasonable restrictions` provided as exception to the fundamental right of freedom of speech and expression bestowed on the citizens of India under Article 19(1)(a) of the Constitution. Further it has found that there are several checks and balances built into Section 69A of the Act. Moreover, it has stated that as the reasons for blocking are to be recorded in writing the same are appealable by way of a writ petition. Given the aforesaid reasons, the Apex Court has held that Section 69A as well as the rules thereunder are constitutional.
- Section 79(3)(b) read with intermediary rules:
While upholding the constitutional validity of these sections, the Supreme Court has held that both Section 79(3)(b) and Rule 3(4) of the Intermediary Rules are to be read down to mean that the intermediary must receive a court order / notification from a government agency requiring the intermediary to remove some specific information. The Court has clarified that any such court order or notification must mandatorily fall within the ambit of the restrictions under Article 19(2) of the Constitution.
The striking down of section 66A is a progressive move as India has experienced the draconian effect of this section in the past. This section was akin to creating a police state in India and sought to create a restriction on the fundamental rights of citizens in an arbitrary fashion. The Court has correctly stated that what may be offensive to one person may not be offensive to another and what may cause inconvenience to somebody may not be inconvenient for someone else.
One of the reasons why the Supreme Court has upheld section 69A of the Act is because the reasons for blocking have to be recorded in writing and therefore can be appealed in the writ. However, on a scrutiny of the section it is nowhere to be found that the reasons for orders should be published or handed over to the owner. Therefore, while this judgment impliedly directs that such order be made available to the owner of the content, the rules thereunder may have to be framed for implementation of the Apex Court`s observation, i.e. which agency can issue such orders, which agency would publish it etc.
The reading down of section 79(3) of the Act may create some trouble as the court has held that it is only upon receipt of a court order that the intermediary will be under an obligation to remove data connected to a computer resource under its control. This therefore means that upon receipt of third party complaints an intermediary will not be obliged to block access to information.
This update was released on 06 Apr 2015.
Legal Update Team
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