Shreya Singhal vs. The Union of India
The case that got Section 66A removed from the IT Act
Representative image from Freepik
Our case begins in 2012, after the former chief of the Shiv Sena, Bal Thackeray, passed away. There was a ‘bandh’ all over Mumbai for a day - the city was essentially shut down. A college student by the name of Shaheen Dhahda posted reportedly offensive comments about this on her Facebook account, questioning why the bandh was taking place. She was arrested later that day for her comment, along with a fellow student - Renu Srinivasan. Renu had done nothing but like the post.
Even though they were released and had their charges dropped, there was a huge outcry in the country. Both students later filed a petition in court.
In November of the same year, a law student filed a public interest litigation. Her name was Shreya Singhal, and that is where our case gets its name. In Shreya Singhal vs. the Union of India, Section 66A of the IT Act was challenged and subsequently struck down.
But how did the judges reach this conclusion? Let’s look a little deeper into the case.
Section 66A
Section 66A was about sending offensive messages through communicative services. The full text of the act is as given below:
"66-A. Punishment for sending offensive messages through communication service, etc.-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 years and with fine.
Explanation.- For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message."
Before even beginning to analyse this section, we can see that it has a serious defect. Can you see it?
The Problems with Section 66A
The most obvious problem with 66A is that we have no idea what an “offensive message” comprises exactly. It’s extremely vague - how do you define what is considered offensive? It changes from one person to another. If we go to look at it, most things on the Internet could be considered offensive by somebody or the other. Vague laws may trap the innocent by not providing fair warning.
As it happens, the terms used in 66A are not even defined. The definition clause of the IT Act does not say the words and expressions defined in the IPC will apply to the Act.
Violation of Freedom Speech?
One of the petitioners’ arguments was that Section 66A violated the right to freedom of speech (Article 19 of the Constitution). Upon closer observation, we find that Article 19(2) actually contains eight subjects in the interest of which the government can impose restrictions on freedom of speech.
These are the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, and decency or morality. It can also impose restrictions when the matter is related to contempt of court, defamation, or incitement of an offence.
The petitioners argued that 66A cannot be justified even using the provisions of Article 19(2). The enforcement of 66A would be a form of censorship and have chilling effects on freedom of speech.
An American judgement quoted in the case rightly said:
“Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.”
It was also discussed whether the offence described under 66A disturbed public order or not. As you have seen, the section says nothing about the recipient of the offensive message. So it could be one person, or multiple people, and the offence would remain the same. This further adds to the vagueness of 66A, which played a big role in its striking down.
In the duration of the case, the Court defined what “freedom of speech and expression” meant. It has three components - discussion, advocacy and incitement. Discussion and advocacy are permitted and protected by Article 19(1). It is only when incitement comes into the picture that 19(2) is applicable. In order to take action against a statement, it must be intrinsically dangerous. To quote the judgement, it must be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.
The following aspects of 66A were analysed:
Public order
Clear and present danger - tendency to affect
Defamation - does 66A actually relate to or protect against defamation in any way?
Incitement to an offence
Decency or morality - the word “obscene” is completely absent in Section 66A. It does not protect decency and morality.
Vagueness
Vagueness
The judges discussed an interesting foreign case, where the defendant posted a series of tweets after finding out his flight was delayed. This included one where he spoke of “blowing the airport sky high” if they didn’t “get their shit together”.
There was a huge discussion on whether the statement the defendant made was menacing or not, whether it could be considered a threat, etc. For quite a while, members of the court were divided on this issue.
If judicially trained minds can come to diametrically opposite conclusions on the same set of facts, it is obvious that expressions like "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 or not to have committed an offence.
The Other Side
There were obviously also arguments against the removal of 66A. One of these was that a section cannot be struck down simply because it can be abused. “The validity of a measure is not to be determined by its application in particular cases.”
This is true, and the Court agreed to this - but then the converse must also be considered true. A section that is otherwise invalid cannot be saved by being administered in a reasonable manner. Section 66A is invalid down to its very core even if you ignore the possibility of it being abused.
Article 14 - Is Equality in the Picture?
One very interesting argument made by the petitioners was that Article 14 of the constitution was being violated. Article 14 is, of course, the right to equality. They said that there is no reasonable difference between the media of print, broadcast, live speech, etc. and speech made on the internet. So new categories of criminal offences cannot be made on this ground. They also noted that Section 66A prescribes a sentence of not more than three years, while defamation has a maximum sentence of two years.
The court ruled that this argument must be failed. How can one say that there is no difference between speech on the internet and offline media? Something put up on the internet is spread to billions of people within seconds. And if the petitioners were right about this, their Article 14 argument challenge would apply to every offence created by the IT Act.
Conclusion
In the end, Section 66A of the IT Act was declared null and void.
The judgement was an extremely interesting read, considering laws and cases from all over the world before coming to a decision. It also raised several interesting points about the vagueness and potential for misuse of laws.
Most importantly, it discussed the dynamics of communicating online in great depth. In a way, it was eye-opening for the courts. Clearly, offline and online media are very different, and the same logic and laws cannot govern them.
For Any Fans of Shakespeare
(Taken from the judgement of this case)
A good example of the difference between advocacy and incitement is Mark Antony's speech in Shakespeare's immortal classic Julius Caesar. Mark Antony begins cautiously. Brutus is chastised for calling Julius Caesar ambitious and is repeatedly said to be an "honourable man". He then shows the crowd Caesar's mantle and describes who struck Caesar where. It is at this point, after the interjection of two citizens from the crowd, that Antony says-
"ANTONY- Good friends, sweet friends, let me not stir you up To such a sudden flood of mutiny. They that have done this deed are honourable: What private griefs they have, alas, I know not, That made them do it: they are wise and honourable, And will, no doubt, with reasons answer you. I come not, friends, to steal away your hearts: I am no orator, as Brutus is;
But, as you know me all, a plain blunt man, That love my friend; and that they know full well That gave me public leave to speak of him: For I have neither wit, nor words, nor worth, Action, nor utterance, nor the power of speech, To stir men's blood: I only speak right on; I tell you that which you yourselves do know; Show you sweet Caesar's wounds, poor poor dumb mouths, And bid them speak for me: but were I Brutus, And Brutus Antony, there were an Antony Would ruffle up your spirits and put a tongue In every wound of Caesar that should move The stones of Rome to rise and mutiny.
ALL- We'll mutiny."