Analyzing the judgment of Shreya Singhal vs. Union of India – Reconsidering the constitutional validity of section 66A of the Information Technology Act, 2000. AIR 2015 SC 1523

Findings-
Section 66A of the IT Act, 2000 prescribes punishment up to three years of imprisonment and fine for sending information that is grossly offensive or of a menacing character; or any information which is false but persistently sent to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; or any e-mail or e-message sent for causing annoyance, inconvenience, deceive or mislead the person to whom it is sent about the origin of such message.

The petitioner argued that section 66A of the IT Act, 2000 encroach upon the citizen’s right to speech and expression and it doesn’t get protection under Article 19(2) of the Indian Constitution which says that the State can impose reasonable restrictions upon the right to freedom of speech and expression in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in contempt of court, defamation or incitement of an offence.

The petitioner pointed out that the terms used under section 66A of the IT Act, 2000 are very vague and shady and are not defined anywhere in the act. It has a broad ambit that there are high chances of even innocent people can be put behind the bar and has a tendency to abuse the citizens. Also, this section bypasses Articles 14 and 21 of the Indian Constitution as there is no intelligible differentia provided between those who use the internet and those who use another medium to share information offensive in nature. This is sheer discrimination and curtails Article 14 of the Constitution. All in all, this provision is ultra-virus and arbitrary.

On the other side, the respondent contended that this section was not in the IT Act, 2000 initially, it was added by the IT Amendment Act, 2009 looking at the constant growth of cybercrimes which gave rise to new forms of crimes such as identity theft, privacy breach, publishing illicit content, sending offensive messages, etc., Legislature realized the need of the people and therefore, section 66A was purposely added to control the spread of newer digital crimes which were causing distress in the society. Also, the court has the power to intervene in judging the constitutionality of any statute only when it clearly violates Part-3 of the Constitution. Just on the ground that section 66A of IT Act, 2000 has chances of abusing the citizens and it is vague and ambiguous doesn’t stand on any footing of being challenged to be ultra-vires.

After hearing both sides, the Supreme Court firstly discussed the essentials of freedom of speech and expression, which are – discussion, advocacy, and incitement. Until it is limited to discussion and advocacy, it is a matter of right but when it leads to incitement, such act is not protected under freedom of speech and expression. Section 66A of the IT Act, 2000 has failed to make a difference between these stages of freedom of speech and expression and has the tendency to restrict all forms of internet communications.

The contention that section 66A failed to provide clear definitions of the words used in it is also accepted by the Hon’ble Supreme Court and held that it has a chilling effect on the right to freedom of speech and expression. Its ambit is extremely wide that it can even have a detrimental effect upon the speech of an innocent person not intending to cause any annoyance, inconvenience, ill-will, etc. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569 it was affirmed that a statute can be declared void on the ground its prohibitions are not clearly defined. A law should be constructed in such a way that it is easier for the ordinary intelligent person to understand what it prohibits and how he should conduct accordingly. A vague law can trap innocent people by not providing fair warning.

Efforts were made by the Hon’ble Court to apply the principle of severability as enshrined under Article 13(1) of the Indian Constitution and give effect to a part of the provision but the respondent failed to indicate which part of the provision should be spared and shall remain operative. The words used in the provision are irrational and ambiguous to a great extent that it wasn’t intelligible to give effect to any of them. In Romesh Thappar v. State of Madras, [1950] S.C.R. 594 it was held that where it is impossible to severe the provision so as to make operative to one of its parts, such legislation will fail entirely and shall be null and void. Section 66A authorizes the impositions of restrictions of the fundamental rights under Article 19(1)(a) of the Indian Constitution in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. Hence, shall be held ultra-vires.

The contention of the petitioner that it is irrational to make a new form of offence under section 66A of the IT Act, 2000 i.e. speech through online mode whereas it is already covered under the offence of defamation in the Indian Penal Code and there is no intelligible differentia between the speech through online and physical mode observed by section 66A is rejected. The Supreme Court reasoned that speech through online mode spread much faster than a live speech and hence has a chance of creating distress in the public order farther than in live speech and hence, higher punishment of imprisonment of 3 years for the offence provided under section 66A is justified in comparison to the punishment of imprisonment of 2 years for defamation in the Indian Penal Code. This provision passes the test of equality under Article 14 of the Indian Constitution.

That being the case, the Supreme Court hammered out the decision declaring section 66A of the IT Act, 2000 to be struck down and inoperative on the ground that it encroaches upon the fundamental rights under Article 19(1)(a) of the Indian Constitution and not covered under exceptions laid down in Article 19(2) of the Indian Constitution.