Shreya Singal v UOI.pptx

PPT

1. SHREYA SINGHAL UNION OF INDIA v. SUBMITTED BY: SHWAS BAJAJ ROLL NO. 69/18 BA.LL.B SEMESTER: 10 TH SECTION: B SUBMITTED TO: DR. AMITA VERMA FACULTY OF LAW, UILS , PANJAB UNIVERSITY

2. INTRODUCTION In India, freedom of speech and expression is enshrined under Article 19(1)(a). Indian courts have also, since very inception of our constitution, strived for upholding the principles formulated by our forefathers and keep a check on proliferating ambit of government’s authority. The case law in this project report also acts as a proof for the same. In this case, the Supreme Court of India struck down the provisions under section 66A of Information and Technology Act, 2000 as being ultra vires the constitution. With increasing permeability of internet, a lot of people are having access to variety of information. The ability to communicate, discuss, argue and preach has also expanded like never before. This is the reasons that masses can be mobilized with just a click. This vast power in hands of people is ideally very significant in democracies. But it also raises issues relating to accelerating capacity of individuals to commit frauds and deceive masses easily and without being recognized. Government may use this probable threat to curb legitimate use of internet and social media platforms. In this case, the court has tried to draw a balancing line for ensuring that government carries out it functions without unnecessarily curbing individual liberties.

3. FACTS OF THE CASE Two girls, Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai police in 2012 for expressing their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackery’s death. The women posted their comments on the Facebook. The arrested women were released later on and it was decided to close the criminal cases against them yet the arrests attracted widespread public protest . It was voiced by many activists that the police has exploited its power by invoking Section 66A of the Information Technology Act, 2000, 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 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

4. ISSUES BEFORE THE COURT Section 66-A Punishment for sending offensive messages through communication service, etc.- Section 69-A Power to issue directions for blocking for public access of any information through any computer resource WHETHER SECTIONS 66-A, 69-A AND 79 OF INFORMATION AND TECHNOLOGY ACT, 2000 ARE ULTRA VIRES THE CONSTITUTION? Section 79 Exemption from liability of intermediary in certain cases

5. REGARDING CONSTITUTIONALITY OF SECTION 66-A

6. ARGUMENTS BY PETITIONER Section 66A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2). Section 66A suffers from the vice of vagueness The enforcement of the said Section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the said Section has a chilling effect on the freedom of speech and expression. Their rights under Articles 14 and 21 are breached inasmuch there is no intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication Presumption in favour of the constitutionality of an enactment Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid Loose language may have been used in Section 66A to deal with novel methods of disturbing other people's rights by using the internet as a tool to do so Vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary The said section can be supported under the heads of public order, defamation, incitement to an offence and decency or morality . A relaxed standard of reasonableness of restriction should apply regard being had to the fact that the medium of speech being the internet differs from other mediums on several grounds. ARGUMENTS BY RESPONDENT

7. CURBING FREEDOM IN GENERAL PUBLIC INTEREST The court held that for curbing freedom mentioned under Article 19(1)(a) any law has to be covered by one of the eight subject matters set out under Article 19(2). If it does not, and is outside the pale of 19(2), Indian courts will strike down such law. It is not open to the State to curtail freedom of speech to promote the general public interest as held in Sakal Papers (P) Ltd. & Ors . v. Union of India RELAXED STANDARD OF REASONABLENESS OF RESTRICTION The court held that there is indeed intelligible differentia in print and other forms of mass media and speech and expression on the internet. Hence, separate offences can be created for speech on the internet. But such offences will have to pass the test of court’s scrutiny. Court said, “we do not find anything…. to relax the Court's scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests laid down by the courts. . SECTION 66-A AND PUBLIC ORDER The Section makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require that such message should have a clear tendency to disrupt public order. Such message need not have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent - there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order whatsoever…… that mere `annoyance' need not cause disturbance of public order. Under Section 66A , the offence is complete by sending a message for the purpose of causing annoyance, either `persistently' or otherwise without in any manner impacting public order JUDGMENT ON THIS ISSUE

8. SECTION 66-A AND DEFAMATION, DECENCY AND MORALITY It was held by the court that there are certain ingredients to all the heads mentioned in Article 19(2), and that annoyance, inconvenience, etc mentioned in Section 66A can be merely ingredients of above-mentioned heads but do not fit in ambit of these heads as whole. VAGUE LANGUAGE OF SECTION 66-A Court held that, “None of the expressions used in Section 66A are defined. Even "criminal intimidation" is not defined - and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act. Quite apart from this, as has been pointed out above, every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.…… There is no demarcating line conveyed by any of these expressions - and that is what renders the Section unconstitutionally vague.” . CHILLING EFFECT The court also referred to concept of “chilling effect” initially evolved by American courts in United States Supreme Court in New York Times v. Sullivan to explain what effects provisions under Section 66A can have, which makes it inconsistent with Article 19(1)(a). Court referred to R. Rajagopal v. State of T.N . , wherein the court had observed, “What has been described as 'the chilling effect' induced by the threat of civil actions for libel is very important.” Such provision, in opinion of court, will induce chilling effect in general public with respect to dissent and opposite views. The court stated, “In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total JUDGMENT ON THIS ISSUE Hence, it was ultimately held that, “that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”

9. REGARDING CONSTITUTIONALITY OF SECTION 69-A

10. ARGUMENTS BY PETITIONER Petitioners assailed the constitutional validity of Section 69A , and assailed the validity of the 2009 Rules. According to them, there is no pre-decisional hearing afforded by the Rules particularly to the "originator" of information, which is defined under Section 2( za ) of the Act to mean a person who sends, generates, stores or transmits any electronic message; or causes any electronic message to be sent, generated, stored or transmitted to any other person. Further, procedural safeguards such as which are provided under Section 95 and 96 of the Code of Criminal Procedure are not available here. Also, the confidentiality provision was assailed stating that it affects the fundamental rights of the petitioners Arguments raised by respondents were similar to those raised in defence of section 66A Information and Technology Act, 2000 ARGUMENTS BY RESPONDENT JUDGMENT ON THIS ISSUE The court assessed the provisions of section 69A , and reached the conclusion that this section is better framed than section 66A of Information and Technology Act, 2000 with several safeguards. Also, that the blocking under this section can be done when union government feels necessity to do so and more so, such necessity pertains to subjects mentioned under Article 19(2). Also, reasons have to recorded in writing for any action under this section. Hence, it was held that section 69A of Information and Technology Act, 2000 is constitutionally valid.

11. REGARDING CONSTITUTIONALITY OF SECTION 79

12. ARGUMENTS BY PETITIONER The petitioners assailed Section 79(3)(b) to the extent that it makes the intermediary exercise its own judgment 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 Article 19(2). Arguments raised by respondents were similar to those raised in defence of section 66A Information and Technology Act, 2000 ARGUMENTS BY RESPONDENT JUDGMENT ON THIS ISSUE After making detailed study of provision under section 79,, court held that, “We have seen how there are only two ways in which a blocking order can be passed - one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court…….. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not………..Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b).

13. CONCLUSION Court upheld that indeed there is fast proliferation of internet and social media which makes it difficult for agencies to keep a check on illegal activities but can not be allowed to overshadow the boon social media can become in empowering and strengthening individuals against corrupt and abusive actions of government and executive and can act a wagon to bring such actions into masses’ knowledge. It can act a global platform for discussions and debates which are fuel for democracy. Government shall strengthen itself to keep a better check on illegal activities over internet rather than curbing free speech and trying to create fear in mind of people . “Freedom is right to tell people what they do not want to hear.” - George Orwell

14. THANK YOU!