BRIEF EXPLANATION OF THE JUDGMENT
Shreya Singhal v/s. Union of India is the landmark case in relation to the online freedom of speech & expression and has played vital role in establishing intermediary liability with respect to the Information Technology Act of 2000.
This case was filed by Shreya Singhal an Indian based Advocate before the Hon’ble Supreme Court of India in the year of 2015, challenging the validity of Sections- 66A, 69A (which were added in the year of 2008 after amending the IT Act to regulate online speech & to avoid the misuse of social media for communicating offensive messages) and Section- 79 (Certain cases in which intermediaries are exempted from liability) of the Information Technology Act 2000, on the ground that they violate the Right to Freedom of Speech and Expression as enshrined under Article 19(1)(a) under Part-III of the Indian Constitution.
ISSUES FRAMED
I. Whether Section- 66A, 69A and 79 are ultra vires to the Indian Constitution?
II. Whether Section- 66A & 69A comes within the purview of reasonable restrictions as provided under Article 19(2) of the Indian Constitution?
DECISION TAKEN IN THE PRESENT CASE
The case was decided by the division bench of the Hon’ble Supreme Court of India presided over by Justice Shri J. Chelameshwar and Justice Shri R.F. Nariman & the judgment of the same was pronounced on 24th March 2015. The decision opined by the Court provides the following findings & observations:
- Section 66A of IT Act 2000 is violative of Article 19(1)(a) and is not covered under Article 19(2). Thus, the Court declared it UNCONSTITUTINOAL.
- Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access to Information by Public) Rules 2009 are equipped with several safeguards and are in consonance with the Constitution. Thus, the Court declared it CONSTITUTIONAL.
- 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. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.[ii]
COPY OF THE JUDGMENT
Supreme Court of India
Shreya Singhal vs U.O.I on 24 March, 2015
Bench: J. Chelameswar, Rohinton Fali Nariman
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL/CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.167 OF 2012
SHREYA SINGHAL ... PETITIONER VERSUS
UNION OF INDIA ... RESPONDENT
WITH
WRIT PETITION (CIVIL) NO.21 OF 2013
WRIT PETITION (CIVIL) NO.23 OF 2013
WRIT PETITION (CIVIL) NO. 97 OF 2013
WRIT PETITION (CRIMINAL) NO.199 OF 2013
WRIT PETITION (CIVIL) NO. 217 OF 2013
WRIT PETITION (CRIMINAL) NO.222 OF 2013
WRIT PETITION (CRIMINAL) NO.225 OF 2013
WRIT PETITION (CIVIL) NO.758 OF 2014
WRIT PETITION (CRIMINAL) NO.196 OF 2014
JUDGEMENT
R.F. NARIMAN, J.
1. This batch of writ petitions filed under Article 32 of the Constitution of India raises very important and far-reaching questions relatable primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The immediate cause for concern in these petitions is Section 66A of the Information Technology Act of 2000. This Section was not in the Act as originally enacted, but came into force by virtue of an Amendment Act of 2009 with effect from 27.10.2009. Since all the arguments raised by several counsel for the petitioners deal with the unconstitutionality of this Section it is set out hereinbelow:
"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."[1]
2. A related challenge is also made to Section 69A introduced by the same amendment which reads as follows:-
"69-A. Power to issue directions for blocking for public access of any information through any computer resource.-(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
3. The Statement of Objects and Reasons appended to the Bill which introduced the Amendment Act stated in paragraph 3 that:
"3. A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation commonly known as Phishing, identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the code of Criminal Procedure to prevent such crimes."
To read more in details, find the enclosed attachment
