Freedom of Speech

The recent and much celebrated Supreme Court judgment in the Shreya Singhal case is, without doubt, among the most important judgments on the right to freedom of speech in India, and may well be seen as the definitive judgment in this area of law in the time to come. While the judgment has been hailed universally across party lines, media and civil societies, we felt it was pertinent to put together a post which breaks the judgment down to its most essential parts, for layman reading.

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Photo by Brittany Rempe

Background:

Article 19 (1) (a) of the Constitution of India guarantees the right to freedom of speech and expression. Like most fundamental rights enumerated (or those unenumerated but read into the Articles by the judiciary), it is subject to ‘reasonable restrictions’ laid down in Article 19 (2). Among the restrictions laid down in Article 19 (2), one of the most overarching ones has been one of public order. The Information Technology Act, 2000 was passed with a view to regulate electronic communication and electronic commerce. In 2008, sweeping powers were granted to the government through introduction of various new provisions under the Information Technology (Amendment) Act, 2008. Chief among them were Sections 66A and 69. Since then the provisions of this Act have come under stringent criticism from various quarters.

Last week, a two judge bench of the Supreme Court comprising Justice Nariman and Justice Chelameshwar pronounced a verdict in a judgment, hearing together ten separate writ petitions, including the one by Shreya Singhal, a law student, challenging various provisions of the Information Technology Act.

The provision of this Act which has been the most controversial right from its inception is Section 66A. This provision made it punishable with an imprisonment term extending up to 3 years along with fine, to send, by means a computer or such other electronic device, (a) any information which is grossly offensive or has menacing character, (b) or information known to be false but with the intention of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, (c) or any email sent for the purpose of causing annoyance or inconvenience or to deceive or to mislead. It is noteworthy here that the 2008 amendments were passed in the Parliament without a single discussion on this provision or any of the other contentious sections that we will discuss below.

This provision granted draconian powers to the government to prosecute, among other things, innocuous messages or social media posts which could fall under the wide, all-encompassing and subjective provisions under Section 66A. Upon a detailed examination, Justices Nariman and Chelameshwar ruled that the restriction on free speech imposed by this provision bore no relation to the ‘reasonable restriction’ under Article 19 (2), particularly public order. The terms of this section were deemed ‘imprecise, nebulous and vague’ thus granting far reaching and unjust powers to those relying on it to prosecute. Therefore, the bench held Section 66A as violative of Article 19 (1) (a) and struck it down as unconstitutional.

Section 79:

Section 79 provides ‘safe harbor’ protection to third party intermediaries from any liabilities which arise from user-generated content. Under question was a rule notified under Section 79 which provides that intermediaries, when notified by any affected party of the existence of contravening content on their networks, must speedily remove such content. In case they failed to do so, they would not be allowed to take advantage of the safe harbor protection under Section 79 with respect to any liabilities flowing to them. The bench ruled that any form of removal of content must necessarily be preceded by either a court order or a Government directive to that effect, and not be mandatory simply in light of a private complaint. This limited reading down of Section 79 would prevent numerous case of private censorship which would flow from internet intermediaries taking down content in response to private and often frivolous complaints.

Section 69A:

The third important provision of the Act under challenge was Section 69A and the rules framed under this section. This provision lays down the legal and procedural frameworks surrounding the blocking of on-line content from public access. The primary ground of challenge was that the rules did not permit pre-decision hearing to the content provider or aggregator, thus being in violation of the principle of natural justice of the right to be heard. On this count, the bench disagreed with the petitioners, stating that Section 69A was a narrowly drawn provision with adequate safeguards. The bench’s reasoning was based on the fact that there is a clearly defined process on how online content may be removed.

In conclusion, it must be stated that this is the very first time, since the 1960s, that the Supreme Court has struck down provisions of a statute enacted by the Parliament as being in contravention to the right of freedom of speech and expression. The powers granted under the extant provisions of Section 66A posed a great threat to anyone posting content online. The subjective and broad language of the provision made an argument for any controversial content to be brought within its purview, as was apparent in the spate of arrests over online content posted in last couple of years. We welcome this judgment and hail the efforts of our judiciary to protect the freedom of speech. The full text of judgment is available here.

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