On 24 March 2015, the Hon’ble Supreme Court of India (Supreme Court), in the matter Shreya Singhal v. Union of India[1], passed a decision on the constitutional validity of section 66A of the Information Technology Act, 2000 (IT Act) and section 118(d) of the Kerala Police Act, 2011 which contained language similar to section 66A of the IT Act. Under section 66A of the IT Act (As it then stood), any person sending offensive content using electronic means was liable for imprisonment of up to 3 years. The Supreme Court also examined section 69A of the IT Act and the rules framed thereunder, which provides the Government powers to block public access to any information stored or disseminated through any computer resource. The Supreme Court further analysed section 79 and the rules framed thereunder which deals with intermediaries’ liability and take down notices.

Background

Section 66A of the IT Act caught everyone’s attention through various infamous incidents one of which was the Palaghar incident, where two girls were arrested and charged under section 66A for posting a comment on Facebook. Another case was that of a student who was arrested for posting on Facebook about an Uttar Pradesh minister. Evidently, the provisions of section 66A of the IT Act were being misused. The blocking powers of the Government, liability of intermediaries and take down notices were also under a dark cloud. Thus, a batch of writ petitions were filed before the Supreme Court challenging the constitutional validity of section 66A and other provisions mentioned above.

Main Arguments raised in the Writ Petitions

The Petitioners had raised the following questions in the writ petitions:

  1. That the very basis of section 66A being introduced into the IT Act, i.e. to deal with new forms of crime was incorrect and that the existing provisions of the Indian Penal Code already deal with such crimes.
  2. Section 66A infringes the fundamental right to free speech and expression and was not saved by any of the 8 subjects covered in Article 19(2) of the Constitution of India, some of them being public order, defamation, incitement of offence and decency or morality.
  3. That section 66A, being criminal in nature, should have been more precise in describing the offence and not as vague as it is at present.
  4. That Section 66A was liable to be struck down as it discriminated between people using different mediums for communications, i.e. people using the radio, television and the internet as opposed to print, broadcast and real live speech, without there being any palpable difference.
  5. Section 66A suffered from procedural lapses and unreasonableness as it did not provide the safeguards under Criminal Law, i.e. cognizance upon a complaint and limitation period on filing such complaint.
  6. Section 69A and the rules framed thereunder were liable to be struck down as no pre-decisional hearing was afforded by its rules, particularly to the originator of information and also in view of absence of certain procedural safeguards.
  7. Rule 3(2) and 3(3) of the Information Technology (Intermediaries Guidelines) Rules, 2011, which dealt with take down procedures to be followed, were improper, as it entailed an intermediary, who is supposed to be a neutral person, to exercise its own judgment to disable the flow of information. The rules were also improper as the terms used therein were vague and broad. Moreover procedural safeguards were absent in the rules.

Judgment

With this background, the Supreme Court held the following:

  1. Section 66A infringed the fundamental right to free speech and expression as it was not saved by any of the 8 subjects covered in Article 19(2) and was thus held to be unconstitutional.
  2. Applying tests similar to section 66A the Supreme Court also held that section 118(d) of the Kerala Police Act, 2011 was thus held to be unconstitutional.
  3. Section 69A of the IT Act and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 were held to be constitutional. The Supreme Court held that blocking could be done in 2 ways by the Designated Officer – firstly, after complying with the rules and secondly, pursuant to an order passed by a competent court. It was also imperative to give the originator and the intermediary the right to be heard before blocking.
  4. Section 79 and the Information Technology Intermediary Guidelines Rules, 2011 were held to be constitutional and would be applicable in cases where an intermediary failed to take down content even after receiving directions from a court or a notice from the Government or its agency that unlawful acts as defined under Article 19(2) are going to be committed.

Khaitan Comment

The decision of the Supreme Court is a welcome step as it endeavours to put to end an era of internet censorship and the misuse of some of the provisions of the IT Act. The decision enshrines the importance of the right to freedom of speech and expression in this electronic age. The decision is also significant for intermediaries as the Supreme Court has, while upholding the blocking powers of the government, watered down intermediaries’ responsibility in so far as take down notices are concerned.