On 24 March 2015, the Supreme Court of India ruled on the constitutionality of various provisions in India’s Information Technology Act 2000 in Shreya Singhal v Union of India W.P. (Crim.) No 167 of 2012. Most notably, the Supreme Court held that India’s law on offensive communications was unconstitutional as it was liable to be used in a way that would unnecessarily curb freedom of speech and expression.
In the lead up to the judgment, ten cases had emerged in India demonstrating the alarming rate at which authorities were arbitrarily relying on the law to suppress speech online. Many of the cases involved the arrest of people who had posted critical remarks about politicians on social networking sites. One case involved the arrest of a girl, Renu Srinivasan, who had merely “liked” a comment on Facebook. The underlying comment had questioned why Mumbai had closed down on the day of Shiv Sena leader Bal Thackeray’s funeral. The original poster of the comment was also arrested.
Section 66A Information Technology Act
The judgment of the Supreme Court focused primarily on the constitutionality of section 66A of the Information Technology Act. This provision has a shared genealogy with section 127 of the UK’s Communications Act 2003. Section 66A states:
“Any person who sends, by means of a computer resource or a communication device –
(a) Any information that is grossly offensive or has menacing character; or
(b) Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or
(c) Any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages;
Shall be punishable with imprisonment for a term which may extend to three year and with a fine”
The petitioners argued that this provision was constitutionally invalid as it infringed upon the fundamental right to “freedom of speech and expression” as recognised by Article 19(1)(a) of the Constitution of India. The Supreme Court reiterated that the liberty of thought and expression “is a cardinal value [in a democracy] that is of paramount significance under [India’s] constitutional scheme.” It also recognised the importance of freedom of speech and expression both in terms of “liberty of the individual” and from the point of view of democratic governance.
However, Article 19(1)(a), like many international provisions recognising the right to freedom of expression, is not absolute. It is subject to the carve-out formulated under Article 19(2), which states that;
[n]othing in [Article 19(1)(a)] shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
The Supreme Court reasoned that in order to understand the phrase “freedom of speech and expression”, it was necessary to understand the concepts of ‘discussion’, ‘advocacy’, and ‘incitement’. Mere ‘discussion’ or ‘advocacy’ is at the heart of Article 19(1)(a); however once it reaches the level of ‘incitement’, Article 19(2) “kicks in” and speech may be curtailed.  Nonetheless, the Supreme Court stressed that in curtailing freedom of speech, the restrictions have to be proximately related to one of the eight designated subject matters contained in Article 19(2).
Article 19(2) Subject Matters
The Supreme Court took notice of the fact that section 66A did not seek to distinguish between “annoying, inconvenient or grossly offensive” information that formed part of a ‘discussion’ or ‘advocacy’ of a point of view, and “annoying, inconvenient or grossly offensive” information that amounted to ‘incitement’. ‘Incitement’ in this context refers to situations where such words have an “imminent causal connection” with one of the eight designated subject matters in Article 19(2). The Supreme Court went on to reiterate that if the restriction has no proximate relationship with the achievement of one of the designated subject matters, it cannot be said that the restriction is a “reasonable restriction” under Article 19(2).
The Additional Solicitor General argued before the court that the test of “reasonableness” when considering a law that restricts freedom expression should be more relaxed when applied to activity online. In doing so, the Additional Solicitor General enumerated a number of differences between the internet and other forms of traditional media. The Supreme Court recognised that there was a clear difference between traditional media and the internet, and therefore concluded that separate offences could apply to internet speech.  However, it could not find anything in the features of online speech that would warrant a more relaxed test of “reasonableness” when assessing restrictions to speech online. As a result, the validity of laws which apply to the internet will not be subject to a different test to that which applies to the validity of laws on traditional media. In reaching this conclusion, the Supreme Court quoted the case of Secretary Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal (1995) 2 SCC 161, where it was stated that;
If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.
The Supreme Court then went on to consider four of the eight designated subject matters under Article 19(2), in order to determine whether section 66A had a proximate relationship with any of them:
- Public Order: This expression was defined by the Supreme Court as signifying “a state of tranquillity which prevails amongst the members of a political society as a result of the internal regulations enforced by the Government which they have established.”  The Supreme Court reiterated that ‘public order’ embraced more of the community than the concept of ‘law and order’. Therefore, the question that had to be answered was whether a particular act would lead to a disturbance of the current life of the community, or does it merely affect an individual.  The Supreme Court observed that section 66A does not place any real importance on the recipient of the relevant communication, and so it could apply to messages sent to either an individual or several people. Moreover, the section did not require that the communication have a clear tendency to disrupt ‘public order’. The Supreme Court held that there was no proximate relationship, therefore, between the section and ‘public order’. The Supreme Court held that a tendency to create public disorder “ought to be an essential ingredient of the offence which [Section 66A] creates” in order for it to be constitutionally valid.
- Defamation: The Supreme Court acknowledged that injury to reputation is a basic ingredient of defamation. Section 66A clearly did not concern itself with injury to reputation; “[s]omething may be grossly offensive and may annoy or be inconvenient to somebody without it affecting his reputation.” The Supreme Court concluded that section 66A was not aimed at this subject matter.
- Incitement to an offence: When considering this subject matter, the Supreme Court took into account the fact that the information disseminated according to 66A need not be information which incites anybody at all. Information may, as discussed above, simply amount to ‘advocacy’ or ‘discussion’ of a point of view rather than ‘incitement’. There was no proximate relationship between section 66A and incitement to commit an offence.
- Decency or Morality: In this context the Supreme Court noted that information that is ‘grossly offensive’ or ‘annoying’ need not be ‘obscene’. The Supreme Court reasoned that the word ‘obscene’ was conspicuous by its absence from the provision.
The Supreme Court was not persuaded by the arguments of the Additional Solicitor General to read subject matters into the section, stating that had the legislature intended to include the relevant subject matters in the provision it would have expressly provided for them. To read down section 66A would simply amount to wholesale substitution of the provision.
When determining whether the provision was unconstitutional due to its vagueness, the Supreme Court stressed the fact that laws should be drafted so that a person of ordinary intelligence is given a reasonable opportunity to know what is prohibited. The Supreme Court also stressed that a provision should also provide clear guidance to authorities and courts so that it is not liable to suffer from arbitrary and discriminatory application.
The Supreme Court found section 66A to be completely open ended, undefined, and vague. It failed to narrowly and closely define the contours of the offence. The Supreme Court pointed out that all of the words in section 66A had a nebulous meaning. For example, something that is offensive to one person may not be offensive to another.
The Supreme Court drew attention to two UK cases, DPP v Collins (2006) 1 WLR 2223 and Chambers v DPP  1 WLR 1833. In these cases, the UK Courts considered the UK equivalent to section 66A. The Supreme Court attached significance to the fact that in these cases the courts of first instance and appellate courts had reached different decisions on the basis of the same set of facts. For example, in Chambers the Crown Court would have convicted Paul Chambers for having sent a “menacing” message, whereas the Queen’s Bench acquitted him on the same facts. The Supreme Court reasoned that [pdf];
[i]f judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence.
The Supreme Court concluded that section 66A was unconstitutional as it was drafted so widely that it could cover virtually any opinion on any subject that dissented with the mores of the day.  Moreover, the provision was widely drafted so as to include information of scientific, literary or artistic value. It was therefore unconstitutional as it could be used in such a way as to chill free speech and expression. Moreover, the provision could not be saved by assurances from the Additional Solicitor General that it will be administered in a reasonable manner.
This is a very important judgment from the Supreme Court of India, in which the two judge bench sought to narrowly define the circumstances in which freedom of speech and expression could legitimately be curtailed under India’s Constitution. Moreover, the Supreme Court recognised that the same level of constitutional scrutiny would be given to laws which seek to regulate speech online as would be applied to laws regulating more traditional media.
In its judgment the Supreme Court also upheld the constitutionality of section 69A of the Information Technology Act, which provides a system for the blocking of information online by way of an order from a member of Central Government. The Supreme Court reasoned that appropriate safeguards were built into the legislative provision, and the circumstances under which it applied were narrowly tailored to three of the designated subjects in Article 19(2). The Supreme Court also read down section 79 of the Information Technology Act on intermediary liability. The provision must now be read as providing for intermediary liability only where an intermediary has received actual knowledge from a court order or on being notified by Government that unlawful acts related to Article 19(2) are going to be committed, and that intermediary had failed to expeditiously remove or disable access to such information.
In its judgment, the Supreme Court demonstrates its unwavering commitment to the specific terms of Article 19(2) under which freedom of speech and expression can be legitimately restricted. In doing so, the Supreme Court highlights the clear differences between Article 19(2) of the Constitution and similar provisions in international human rights treaties. For example, Article 19(2) does not recognise the more broadly defined “legitimate aim” of “protecting the rights of others”.
Jonathan McCully is a Case and Project Support Officer at the Media Legal Defence Initiative. This post