Shreya Singhal v Union of India (Supreme Court, 2015) — section 66A and speech on the internet

The case restates the whole law of Article 19(1)(a) and 19(2) for the internet age: what the freedom protects, when clause (2) is attracted, why a vague and overbroad penal provision is void, and why the possibility that a law will be administered fairly is no answer. It is also the leading authority on the doctrines of vagueness, overbreadth and the chilling effect in Indian law.

A batch of writ petitions under Article 32, led by Writ Petition (Criminal) No. 167 of 2012, challenged section 66A of the Information Technology Act, 2000. The section provided: "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. The petitions also challenged section 69A and the blocking rules of 2009, section 79 and the intermediary guidelines of 2011, and section 118(d) of the Kerala Police Act. The Bench was Chelameswar and Nariman JJ.; Nariman J. delivered the judgment on 24 March 2015.

1. What does the freedom of speech and expression protect, and when does Article 19(2) permit its restriction?
2. Is section 66A saved by any ground in Article 19(2)?
3. Is section 66A void for vagueness and overbreadth?
4. Are section 69A and the blocking rules, and section 79 and the intermediary guidelines, valid?

Discussion, advocacy, incitement. "There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in." At that stage a law may curtail speech that leads inexorably to, or tends to cause, public disorder or affects the sovereignty and integrity of India, the security of the State, or the other grounds in clause (2).

No ground in clause (2). The Court examined each ground and found that section 66A had no proximate relation to public order, did not fall within incitement to an offence, defamation, decency or morality, or any other head. Causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will "are all outside the purview of Article 19(2)."

Vagueness. "Section 66A suffers from the vice of vagueness because unlike the offence created by Section 66 of the same Act, none of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said Section."

Overbreadth and the chilling effect. The section "takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth."

Assurances of restraint are no answer. The Additional Solicitor General "assured us that this Government was committed to free speech and that Section 66A would not be used to curb free speech, but would be used only when excesses are perpetrated by persons on the rights of others." The Court held that the possibility of an Act being abused is not a ground to test its validity, but equally that a provision which is itself invalid cannot be saved by the promise of its fair administration; governments come and go, and the section would remain.

The conclusions. "Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material." The intermediary guidelines were read down likewise, and "Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2)."

Article 19(1)(a) protects discussion and advocacy; only incitement attracts Article 19(2), and then only on a ground the clause names. A penal provision that is undefined and vague, that sweeps in protected and innocent speech, and that chills expression is void for overbreadth, and the assurance that it will be used sparingly cannot save it. Blocking under section 69A, with its procedural safeguards, is valid; intermediaries need act only on a court order or a Government notification relatable to Article 19(2).