Parliamentary democracy of our kind is fundamentally hinged upon the belief that constitutional values are supreme and all else is delegated legislative power[1].
Ultimately, the constitution and the values enshrined within it are held sacrosanct and it is precisely this fact that holds our democratic experiment in good stead. When a statute is passed in contravention to the prescribed values or the implicit intention behind constitutional diktat, the judiciary’s role as the guardian of the laws comes to play and consequently declares the said miscreant statute to be null and void[2]. Theoretically speaking, the separation of powers is perfectly airtight in the sense that it prescribes no ‘double-check’ mechanism beyond the traditional check-and-balance that locks each wing of the government in a cage of constitutional accountability- simply because the theory sees no need for it.
But in reality, that is not the case and the continued use of s.66A of the Information Technology Act of 2000 is a classic example of just that. The iconic Shreya Singhal v Union of India[3] The judgment was very clear in its stance of striking down the ever-controversial s.66A of the IT Act to be unreasonably and unfairly oppressive of a citizen’s right of exercising intellectual freedom on the internet. Yet, seven years after its passing it is still very much in use by the police machinery of several states across the nation[4]. This presents to us a unique situation where everything that could be done from a legal point of view has been done yet the on-ground extension of State machinery is refusing to accept the fact that the law is no longer in force. This paper hopes to explore the multitude of angels there is to understand the what, why and how of the case that is said to be a watershed moment in the history of online free speech in India.
The controversy centered around the 2008 amendment to the IT Act including section 66A within its ambit that read: “Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine." Off the bat, it was clear that the amendment suffered the vice of ambiguity and a grossly disproportionate punishment mechanism- thus followed intense opposition with every arrest under the newly added provision ultimately culminating with Shreya Singhal- a second-year law student’s declaration of an effort to bring down the draconian law.
The case proceeded quickly and garnered unprecedented attention in every corner of the country- after all, it was the case that had the power to revolutionize online free speech.
The Bench, in Shreya Singhal v Union of India, came up with a sound argument to justify its quashing of s.66A much to the disappointment of the State. The argument held within it three crucial points: the first one being the wording of the statute and its undeniable vagueness[5]. The Indian legal system, by virtue of its administrative and political setup, is ultimately dependent on the Constitution whose word is treated as the basis of the country’s socio-political and legal existence. But in the grandeur of its role, it's easy to overlook the fact that it's not the word of the Constitution that’s supreme but the intellectual interpretation of its provisions that truly gives it life.
This is precisely the role of the judiciary, but it is in no way limited to the Constitution alone. Article 245 legitimizes all statutes passed by the parliament, therefore, validating an extension of constitutional sanctity to said statutes. This is why utmost prudence must be exercised in drafting every word into these statutes and the Court too follows the Doctrine of Constitutional Vagueness[6] while dealing with cases that encompass a wider jurisdiction inadvertently by way of its loose wording.
The facts of this particular case attracted the said doctrine with respect to section 66A wherein terms such as ‘grossly offensive’ and ‘causing annoyance’ were left with no further objective analysis of the same thus making its ambit dangerously wide.
The subjective nature of the wording coupled with the lack of actual safeguards against possible excesses were glaring red signs in the hearing and formed a major part of the ratio decidendi of the case. However, the concerns of the bench weren’t simply driven by vocable discrepancies. The larger motive behind the amendment itself was called into question for violating Article 19(a) which promises the right to freedom of speech and expression. The government’s counsel argued that the amendment is saved under Article 19(2) as it was a reasonable restriction on the citizenry as concerns of national security, relations with foreign nations, public order and morality were accepted as more crucial than fundamental rights. But the Bench clarified that the statute was too wide in its ambit to be saved by the reasonable restriction clause.
Finally, with the end of court proceedings and the awaited judgment on cue, the Honorable Supreme Court through Justice F Nariman delivered the celebrated judgment that struck down section 66A along with a restricted interpretation of s.79 and the rules under it. The reading down of section 79 led to the reduction of intermediary liability that threatened over-censorship of the citizenry’s genuine criticism by the intermediaries out of fear of government action. What’s not known is the battle that was lost as the hubbub of the war’s victory drowned it out- s.69A. The provision that legitimized ‘secret blocking’ of sites by the government when it makes a case of reasonable restriction to do so. The Court upheld this provision to be constitutionally valid as it supposedly did not suffer from the infirmities of the other two and had reasonable safeguards in place to prevent its misuse. However, this view remains a hotly debated issue to date- with Twitter moving the Karnataka High Court seeking its undoing.
The case came with multiple controversies and it was believed it would die down once the judgment was passed but that was far from true. To date, over 700 cases booked under the now defunct section 66A of the IT Act are pending before trial courts. A complex situation where the said charge sheets are, by virtue of reference to section 66A, void to the extent of its violation[7]. On July 5th of 2021, seven years after the iconic Shreya Singhal case, Justice F Nariman commented on the ‘terrible’ and ‘horrifying’ state of affairs when the issue of these undertrials was brought to the top Court’s attention by the NGO- People’s Union for Civil Liberties. Appalled by the fact that seven years after being quashed down, the shadow of section 66A still haunts the public as a seemingly legitimate crime to be charged with.
The problem is often said to be a lack of awareness by the police machinery which is a ludicrous argument that exposes government inefficiency- yet the actual point of concern lies in the fact that the very process of being charged with s.66A and subjected to the long-drawn process is enough of a deterrent[8] to prevent the exercise of free speech online. This will effectively undo the respite that the Shreya Singhal case had brought with it and dulls the sheen of India’s track record of online free speech if there was anything to dampen in the first place.
-- [1] Pandya, Khushi, Separation of Powers - An Indian Perspective (April 22, 2013) [2] Bhadu, Lakshit Lashkar, Separation of Powers: A System of Checks and Balances (August 1, 2021) [3] Shreya Singhal v Union of India, 2015 (AIR 2015 SC 1523) [4] Halder, Debarati, A Retrospective Analysis of Section 66A: Could Section 66A of the Information Technology Act be Reconsidered for Regulating 'Bad Talk' on the Internet? (August 24, 2015) [5] Abraham, Sunil, Shreya Singhal and 66A- A Cup Half Full and Half Empty (December 12, 2016) [6] Snoddon, Emily M, Clarifying Vagueness: Rethinking the Supreme Court’s Vagueness Doctrine (July 20, 2022) [7] Sekhri, Abhinav, Section 66A and Other Legal Zombies (November 15, 2018) [8] Demchak and Dombrowski, Conceptualizing Cyber Deterrence by Entanglement (March 15, 2018)
This article is written by Ishwaryah Manikandan of National Law University, Odisha.