This Article is written by Emima Thangapandi, B.B.A LL.B (Hons.), 4th year,
during her internship at LeDroit India
Equivalent Citations:
2015 (4) Scale 1 : 2015 (218) DLT 370 : 2015 (2) Bom.C.R.(Cri.) 515: 2015 AIR(SC) 1523 : 2015 (2) Supreme 513 : 2015 (5) SCC 1 : 2015 (3) MLJ 162 : 2015 (2) K.L.T. 1 : 2015 (3) JT 225 : 2015 AIR(SCW) 1989 : 2015 (1) UC 594 : 2015 (149) A.I.C. 224:
Date of Judgement:
24 March, 2025
Bench:
Justice Nariman Rohinton Fali and Justice Chelameswar Jasti
Case No.:
Writ Petition (Criminal) No.167 of 2012 With Writ Petition (Civil) Nos.199, 222, & 225 of 2013 & 196 of 2014 with Writ Petition (Civil) Nos.21, 23, 97, 217 of 2013 & 758 of 2014
Acts Referred:
- Constitution of India
- Indian Penal Code
- Code of Criminal Procedure
- Information Technology Act
- Kerala Police Act
- Punjab Maintenance of Public Order Act
Background:
The Information Technology Act, 2000 came into effect in India from 17 October, 2000 to regulate, control and deal with offences relating to the newly evolving information technology in the country. The Act being relatively new, Sec. 66A was added through an amendment in the year 2009.
Sec. 66A of the Information Technology Act, 2000 (hereinafter referred to as IT Act, 2000) penalised individuals for sending offensive messages through communication services etc. Followed by this new enactment, there were various arrests based on this section all over India. This led to the challenge of the constitutional validity of this section in the Supreme Court of India via Writ Petition as per Art. 32 of the Constitution of India. The petition raised very important and far-reaching questions relatable primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India.
Facts of the case:
After the enforcement of Sec. 66A of the IT Act 2000 several individuals were held liable arbitrarily for posting content on social media which were mostly against the political view of the party in power. The immediate trigger was the arrest of two young women in Maharashtra in 2012 for posting comments on Facebook criticizing the shutdown during Bal Thackeray’s funeral.
Major leading incidents:
- Shaheen Dhada Case (2012): A 21-year-old woman was arrested for posting a Facebook comment questioning the shutdown of Mumbai during Bal Thackeray’s funeral.
- Ravi Srinivasan Case: A cartoonist was arrested for posting allegedly seditious content on social media.
- Multiple arrests across various states for social media posts deemed “offensive” by authorities.
The impugned statutes:
1. Sec. 66A of IT Act, 2000 (Punishment for sending offensive messages through communication service, etc.)
2. Sec. 69A of IT Act, 2000 (Power to issue directions for blocking for public access of any information through any computer resource) and Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009
3. Sec. 79A of IT Act, 2000 (Central Government to notify Examiner of Electronic Evidence) and Information Technology (Intermediary Guidelines) Rules, 2011
4. Sec. 118 (d) of the Kerala Police Act, 1960 (Penalty for causing grave violation of public order or danger)
Issued raised:
Constitutional validity of the above statutes with respect to whether they violate Art.19(1)(a) of the Constitution and whether Sec. 118 (d) of the Kerala Police Act, 1960 passes the Doctrine of Severability.
Arguments on behalf of Petitioner:
- The basis Sec. 66A was introduced because that the rapid increase in the use of computer and internet has given rise to new forms of crimes is incorrect and Sec. 66B to 67C and various sections of the Indian Penal Code (IPC) are good enough to deal with these crimes.
- Sec. 66A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Art. 19(2).
- The terms in Sec. 66A such as ‘annoyance’, ‘inconvenience’, ‘danger’, ‘obstruction’, ‘insult’, ‘injury’, ‘criminal intimidation’, ‘enmity’, ‘illwill’ and ‘hatred’ are outside the purview of Art. 19(2).
- In creating an offence, Sec. 66A suffers from the vice of vagueness since unlike the offence covered in Sec.66 of the same Act, none of the aforesaid terms are even attempted to be defined and cannot be defined since they are nebulous in nature, the result being that innocent persons are being roped in arbitrarily and whimsically.
- Sec. 69A is vague, over board, has no relation with subjects specified in Art.19(2) lacks pre-decisional hearing afforded by the Rules and procedural safeguards as given in Sec. 95 and 96 of the CrPC.
- Sec. 79(3)(b) of the IT Act, 2000 makes the intermediary exercise its own jurisdiction upon receiving actual knowledge that any information is being used to commit unlawful acts. Further, the expression “unlawful acts” also goes way beyond the specified subjects delineated in Art. 19(2).
- Sec. 118(d) of the Kerala Police Act, 1960 being a Kerala Act falls outside Entries 1 and 2 of List II and fall within Entry 31 of List I.
- Thus, the impugned sections breach the rights under Art. 14 and 21 as there is no intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication.
Arguments on behalf of the Respondent: (Additional Solicitor General of India)
- Mere possibility of abuse of a provision (here in this case, the impugned sections) cannot be a ground to declare a provision invalid.
- Loose language may have been used to deal with novel methods of disturbing other peoples’ rights by using the internet as a tool to do so.
- Relaxed standard of reasonableness of restriction should apply to crimes on the internet on the ground that medium of speech being the internet differs from other mediums like press, radio, newspaper etc.
- Vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary.
- The terms in the provisions fall under reasonable restrictions under Art. 19(2).
- Similar provisions exist in other countries and a Court order directing the intermediaries to take down certain content will not breach the boundaries of Art. 19(2).
- The provisions are necessary to maintain public order and prevent communal tensions in the age where internet can be used to influence large crowds.
What the Court held with its reasoning:
- Sec. 66A of IT Act, 2000:
It is violative of Art. 19(1)(a) and is not saved under Art. 19(2) as it arbitrarily, excessively and disproportionately invades the right to free speech of the people and upsets the balance between freedom and reasonable restrictions. The terms used in the provision are open ended, vague and undefined. This leads to a chilling effect on the free speech guaranteed by the Constitution. The section suffers from procedural unreasonableness as it does not necessitate a complaint to be filed by the aggrieved person, absents safeguards as in Sec. 95 and 96 of CrPC. There is an intelligible differentia between speech on the internet and other mediums of communication and hence the said section is not violative of Art. 14. Therefore, Sec. 66A as a whole is declared unconstitutional as it violates the fundamental freedom of right to free speech and does not fall under the reasonable restrictions under Art. 19(2).
- Sec. 69A and Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009
Sec. 69A of the IT Act, 2000 is a narrowly drawn provision with several safeguards under the Rules. Mere absence of certain additional safeguards which are provided under Sec. 95 and 96 of CrPC does not make the provisions constitutionally infirm. The provision is not vague and has necessary procedural guidelines. Therefore, both the section and the Rules are constitutionally valid.
- Sec. 79 of IT Act, 2000 and Information Technology (Intermediary Guidelines) Rules, 2011
Sec. 79 of the IT Act, 2000 exempts an intermediary from liability in certain cases where it fulfils the conditions laid down. The Bench appreciated that Sec. 79 is an exemption provision and that it is closely related to provisions which provide for offences including Sec. 69A. It is to be read down to mean that a Court order or a modification by the appropriate Government or its agency has been passed asking the intermediary to expeditiously remove or disable access to the material. This way the unlawful acts won’t go beyond what it laid in Art. 19(2). This provision has gained acceptance in other countries worldwide from which Argentina is at the forefront. Thus, Sec. 79 is constitutionally valid. Similarly, the Rules are valid, subject to r. 3(4) being read down in the same manner as Sec. 79(3)(b).
- Sec. 118 of Kerala Police Act, 1960
The section reads as “118. Penalty for causing grave violation of public order or danger.- Any person who,(d) Causes annoyance to any person in an indecent manner by statements or verbal or comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means; shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.” It is clear that the Kerala Police Act as a whole and Section 118 as part thereof falls in pith and substance within Entry 2 List II, notwithstanding any incidental encroachment that it may have made on any other Entry in List I. Even otherwise, the penalty created for causing annoyance in an indecent manner in pith and substance would fall within Entry 1 List III which speaks of criminal law and would thus be within the competence of the State Legislature in any case. The section suffers from vagueness and overbreadth, especially the term ‘annoyance’ thus violates Art. 19(1)(a) and is not saved under any of the subject matters contained in Art. 19(2).
Conclusion:
The case of Shreya Singhal v. Union of India is one of the landmark judgements in the sector of IT Law. The judgement deals with the general interpretation of the Court through various precedents of the terms like reasonable restrictions, public order, vague, tendency of affect, defamation, incitement to an offence, decency or morality, offensive and obscene prints and articles with the view point of content posted by individuals on the internet. The analysis by the Hon’ble Supreme Court clearly distinguishes between the stage of scrutiny of any content posted by an individual on the medium of internet verses the content spread on any other print or audio-visual media. It protects the citizens’ freedom of speech on the internet and upholds the exemption of liability of intermediaries in cases where they are ordered by the court or government to take certain actions. This case, therefore, has shaped the foundations of IT law in India.
Cases Referred:
- Romesh Thappar Vs. State of Madras, [1950] S.C.R. 594 at 602
- Sakal Papers (P) Ltd. & Ors. Vs. Union of India, [1962] 3 S.C.R. 842 at 866
- Bennett Coleman & Co. & Ors. Vs. Union of India & Ors., [1973] 2 S.C.R. 757 at 829
- S. Khushboo Vs. Kanniamal & Anr., (2010) 5 SCC 600
- Abrams Vs. United States, 250 US 616 (1919)
- Kameshwar Prasad & Ors. Vs. The State of Bihar & Anr., 1962 Supp. (3) S.C.R. 369
- Indian Express Newspapers (Bombay) Private Limited & Ors. Vs. Union of India & Ors., (1985) 2 SCR 28
- The Superintendent, Central Prison, Fatehgarh Vs. Ram Manohar Lohia, [1960] 2 S.C.R. 821
- Chintaman Rao Vs. The State of Madhya Pradesh, [1950] S.C.R. 759
- State of Madras Vs. V.G. Row, [1952] S.C.R. 597
- Mohd. Faruk Vs. State of Madhya Pradesh & Ors., [1970] 1 S.C.R. 156
- Dr. N. B. Khare Vs. State of Delhi, [1950] S.C.R. 519
- Secretary Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161
- Romesh Thappar Vs. State of Madras, [1950] S.C.R. 594
- Brij Bhushan & Anr. Vs. State of Delhi, [1950] S.C.R. 605
- Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821
- Dr. Ram Manohar Lohia Vs. State of Bihar & Ors., [1966] 1 S.C.R. 709
- Arun Ghosh Vs. State of West Bengal, [1970] 3 S.C.R. 288
- S. Rangarajan Vs. P. Jagjivan & Ors., (1989) 2 SCC 574
- State of Bihar Vs. Shailabala Devi, [1952] S.C.R. 654
- Ramji Lal Modi Vs. The State of U.P., [1957] S.C.R. 860 at page 867
- Kedar Nath Singh Vs. State of Bihar, 1962 Supp. (2) S.C.R. 769
- Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar Kashinath Kunte & Ors., 1996 (1) SCC 130
- Ranjit Udeshi Vs. State of Maharashtra [1965] 1 S.C.R. 65
- Director General, Directorate General of Doordarshan Vs. Anand Patwardhan, 2006 (8) SCC 433
- Aveek Sarkar Vs. State of West Bengal, 2014 (4) SCC 257
- K.A. Abbas Vs. The Union of India & Another, [1971] 2 S.C.R. 446
- Harakchand Ratanchand Banthia & Ors. Vs. Union of India & Ors., 1969 (2) SCC 166
- A.K. Roy & Ors. Vs. Union of India & Ors., [1982] 2 S.C.R. 272
- Madan Singh Vs. State of Bihar, (2004) 4 SCC 622
- Zameer Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra & Ors., (2010) 5 SCC 246
- State of M.P. Vs. Kedia Leather & Liquor Limited, (2003) 7 SCC 389
- State of Karnataka Vs. Appa Balu Ingale, 1995 Supp. (4) SCC 469
- Chambers Vs. Director of Public Prosecutions, [2013] 1 W.L.R. 1833
- R. Rajagopal Vs. State of T.N., (1994) 6 SCC 632
- S. Khushboo Vs. Kanniammal, (2010) 5 SCC 600
- The Collector of Customs, Madras Vs. Nathella Sampathu Chetty & Anr., [1962] 3 S.C.R. 786
