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Dr. K. L. Bhatia is a Professor of eminence. A former Dean, Faculty of Law and Founder Director, Law School of University of Jammu. Prof. Bhatia has written not less than hundred research papers, notes and comments, and book reviews and published legal journals of repute in India and abroad. He has authored eighteen books on varied aspects of law. He is recipient of U.N.O. Human Rights Fellowship at International Institute of Human Rights (Founded by Rene Cassin), Strasbourg, France and ILO as well as UNO Human Rights Commission, Geneva. Prof. Bhatia has delivered extension and guest lectures in institution of repute in India and abroad. |
Prof. K. L. Bhatia 
Shreya Singhal v. Union of India, 2015, Magnum Opus of Freedom of Speech and Expression
Professor Dr. K. L. Bhatia
B. A. (Hons) (J&K); LL. B. (ILS, Pune), LL. M., Ph. D. (Pune University)
Presently, Professor, National Law University, Jodhpur
(Former Head and Dean Faculty of Law and founding Director The Law School, Jammu University; Director Amity Law School; Dean and Professor Emeritus UPES; UNDP Professor Public Law, Mekelle)
“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”. (Justice Jackson)
Prelude:
Shreya Singhal v. Union of India is magnum opus decision of the Indian Apex Court as it sustains the splendid bliss of basic right of the citizens of India to freedom of speech and expression against incompatible attempts under Information Technology Act, 2000 to regulate it on line. The superior court strikes down Section 66A of Information Technology Act, 2000 as it curbs free speech and expression and robs of the citizens of India of their basic inalienable freedom. The judgment of the Apex Court in this case is a gospel of free speech and expression. Section 66A has had chilling effects because it creates an offence which is illusory, vague and overbroad. The said provision of the ITAct fails to pass the nexus test, viz., nexus between the law and the object which the law seeks to achieve; it also fails to establish intelligible differentia between the law and Article 19 (1) (a) (2), namely, advocacy and incitement. The said provision of the ITAct does not pass muster of public order, decency, morality, defamation, incitement to an offence, the sovereignty and integrity of India, the security of the State, and friendly relations with foreign States tests as enjoined in Article 19 (2) of the Constitution of India. The said provision of the ITAct suffers from the vice of “impatient” and “intolerant”, which is contra to “fair and fearless voice”. The speech on public issues is advocacy and a heart of democracy, which needs to be protected. However, incitement, defamation, obscenity are to be prohibited on different pedestal. In every society, progressive or less progressive, there are challenges to free, fair and fearless speech on public issues and there are always contests between legislatures and executives to curb such fair speech because of intolerance and impatience, and in this contestant scenario, the independent judiciary being the repository of the confidence of the people has a greatest role to convey right not to be impatient and intolerant.
Backgrounder to Factual Controversy:
Shreya Singhal, the petitioner under Article 32 of the Constitution of India, then a law student of 21 at the Faculty of Law of Delhi University, challenged the constitutionality of Section 66A of the Information Technology Act, 2000 amended vide 2009 amendment Act with effect from 27 October 2009. What did it that made her to file the writ petition? She explained in her own words: “I filed the petition challenging Section 66A of ITA 2000, in 2012, after the arrests of the two young girls in Maharashtra for posting comments critical of the total shutdown in Mumbai after the death of Shiv Sena supremo Shri Bal Thackeray. I was shocked as to why they were arrested and even more so when I read Section 66A under which they were arrested. The continued misuse of Section 66A led to arrests in West Bengal and Pondicherry and it dawned on me that someone had to do something to stop this gross injustice and perverse use of laws … section 66A was a gag on the internet. It had the potential to criminalise any and all content that was uploaded to the internet, merely because a reader found something annoying “or of menacing character “amongst other vague and undefined ingredients to this “crime”. Section 66A had been widely criticized for overbreadth, vagueness and its chilling effects on freedom of speech (and, hence,) was violative of our fundamental rights to free speech”.
Factual Situation:
A batch of writ petitions filed under Article 32 of the Constitution of India raises very important, pertinent 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, 2000. This Section was not in the Act as originally enacted, but came into force by virtue of an Amendment Act, 2009 with effect from 27 October 2009. All the arguments raised by several counsel for the petitioners deal with the unconstitutionality of Section 66A of ITA. Section 66A of the ITA reads as:
“66A: 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 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 punished 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.
Section 69A was also introduced by the same amendment of 2009 which reads as follows:
69A: Power to issue directions for public access of any information through any computer resource — (1) Where the Central Government or any of its officers specially authorized 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 of preventing incitement to the commission of any cognizable offence relating to above, it may be 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 transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards 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 an imprisonment for a term which may extend to seven years and shall also be liable for fine.
The intended object of the abovementioned ITA provisions was to prevent such new forms of crimes which have rapidly increased with the use of computer and internet like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds such as personation commonly known as phishing, identity theft and offensive messages through communication services.
A scant reading of the provisions of Section 66A of ITA and Article 19 (1)(a)(2) of the Constitution of India unearth a major difference, viz., the constitutional provision is in the form of exercise of speech or voice or expression or press in democracy in the spirit of accommodation, adjustment, tolerance and patience, while as the ITA provisions are contra to democracy and seem to suffer from the vice of intolerance, impatience, egocentric, feudalistic, autocratic and elective despotism.
The Apex Court, therefore, has examined in depth the context and ambit of Section 66A on the touchstone of freedom of speech and expression encapsulated in Article 19(1) (a) (2) and did not incline to uphold the angularities presented by the Attorney General and Solicitor General in the backdrop of the valued precedents, which seem to be the “flashing the flaming sword of its inspiration”.
Contentious Constitutional Questions:
The Petitioners contended that Section 66A of ITA was virus of fallacy and impropriety because it gave rise to new forms of crimes which, otherwise, could be appropriately dealt with under various provisions of the Indian Penal Code. Besides, the Petitioners various counsels had raised a large number of points as to the constitutionality of Section 66A. The very basis of unconstitutionality is that it infringes fundamental right to free speech and expression and is not saved by any of the eight subjects covered under Article 19(1)(a)(2), i.e., free speech and expression is not absolute or unqualified but subject to reasonable restrictions, namely, 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 subjects indicated under Section 66A like the causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will are outside the purview of Article 19(1) (a) (2), and, hence, suffer from the vice, germ and bug of vagueness, because such terms are not defined and being unqualified term the consequence being that innocent persons are roped in as well as those who are not. The result being that it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said Section. This seems to be the invisible action of invisible State by invisible hands that is speaking tree of elective despotism. The enforcement of Section 66A would really be an insidious form of censorship which impairs a core value of free speech and expression enjoined in Article 19(1) (a). Besides, Section 66A has a chilling effect on the freedom of speech and expression; the right of the viewers is also infringed as the chilling effect would not give them the benefit of many shades over the internet. Section 66A also suffers from the vice of bad classification inasmuch as their rights under Articles 14 and 21 are breached as there is no intelligible differentia between those who use the internet and those who by words spoken or written use other medium of communication. The said provision of the ITA has no clear object sought to be achieved and, therefore, it carries a discriminatory object and would fall foul of Article 14.
The Additional Solicitor General in his counter memorial defended the constitutionality of Section 66A arguing that the legislature is in the best position to understand and appreciate the needs of the people. He urged that vagueness could not be a ground to declare a statute unconstitutional if the statute was otherwise legislatively competent and non-arbitrary. He asserted that there was a presumption in favour of the constitutionality of an enactment; mere possibility of abuse of a provision could not be a ground to declare a provision invalid. He further emphasized that the Court will interfere with the legislative process only when a statute was clearly violative of the rights conferred on the citizens under Part III of the Constitution.
Clarification with Ratio by the Apex Court:
In the backdrop of the above, the Apex Court examined the seminal issues that spiraled in the course of arguments and counter arguments, rebuttals and answers centred around the language of Section 66A of ITA vis-à-vis Article 19(1)(a)(2) and clarified them from varied vicissitudes of importance of freedom of speech and expression both from the point of view of the liberty of the individual and our democratic form of government by revisiting the various judgments of the Court right from the early judgment of 1950 till date; the Court also visited American Supreme Court judgments, their great persuasive value and their significance by referring them in Indian cases like the present one under analysis.
i. Freedom of Speech and Expression:
Free speech and expression is protected under Article 19(1)(a) of the Constitution. This freedom is not absolute and, as such, regulated by the tests evolved under the caption ‘reasonable restrictions’ vide Article 19(2). The spinal cord of free speech and expression is the Preamble that speaks of liberty of thought, expression, belief, faith and worship, which is a cardinal value of democracy under our constitutional scheme. The Apex Court has invariably a proprio vigore stated that freedom of speech lay at the foundation of all democratic organizations ; free speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and that must be preserved ; freedom of speech and of the press is the ark of the covenant of democracy because public criticism is essential to the working of its institutions . Recently, the Apex Court has referred to “market place of ideas” concept in democracy evolved in the felicitous words of Justice Holmes’ famous dissent in Abrams v. United States :
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
In the backdrop of this, the Court stated that “the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. This rightly requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is pre-condition for meaningful governance, the culture of open dialogue is generally of great societal importance”. The Apex Court also referred to the famous opinion of Justice Brandeis in Whitney v. California to arrive at just ends on the debate on Section 66A vis-à-vis freedom of speech and expression: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and in its government the deliberative forces should prevail over the arbitrary. … They believed liberty to be the secret of happiness and courage to be the secret of liberty. … That without free speech and assembly discussion would be futile; the greatest menace to freedom is an inert people; public discussion is a political duty. … Recognizing the occasional tyrannies of governing majorities, they amend the Constitution so that free speech and assembly should be guaranteed. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind.”
In the background of this discussion, the Apex Court identified three concepts of the content of expression “freedom of speech and expression” which are fundamental in understanding the reach of this most basic of human rights, viz., first, discussion, second, advocacy, and, third, incitement. Discussion or 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. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, etc. The Apex Court while quoting Justice Murphy in Chaplinsky v. New Hampshire has unequivocally expressed that the right of free speech is not absolute at all times and under all circumstances. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument’.
Viewed from this perspective, the Court asserted that the right of free speech and expression is to be read along with 19(2) which carve out areas in respect of which valid legislation can be made. Article 19(1) (a) states that all citizens shall have right to freedom of speech and expression. This includes freedom of the press, right to know and right to information. Section 66A of ITA has been challenged as contra to Article 19(1)(a) on the ground that it casts the net very wide, i.e., “all information” that is disseminated over the internet is included within i9ts reach. Information as per Section 2(v) of the ITA includes data, message, text, images, sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche. Declaring Section 66A unconstitutional, the Court thus opined:
“Two things will be noticed. The first is that the definition is an inclusive one. Second, the definition does not refer to what the content of information can be. In fact, it refers only to the medium through which such information is disseminated. It is clear, therefore, that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in — such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know — the market place of ideas — which the internet provides to persons of all kinds, is what attracts Section 66A. That the information sent has to be annoying, inconvenient, grossly offensive, etc., also shows that no distinction is made between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State, etc. Section 66A creates an offence against persons who use the internet and annoy or cause inconvenience to others very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66A.”
It discerns that the offence created by Section 66A of ITA has no proximate relation with any of the eight subject matters contained in Article 19(2). Under our constitutional scheme, it is not open to the State to curtail freedom of speech to promote the general public interest.
ii. Reasonable Restrictions to Promote the General Public Interest:
The Apex Court agreed with the views of the Court expressed as early as 1960 in The Superintendent, Central Prison Fategarh v. Ram Manohar Lohia that the restriction must have reasonable relation to the object to be achieved, i.e. , the public order, and unless the restriction has no proximate relationship to the achievement of public order, it cannot said that the restriction is a reasonable restriction within the meaning of Article 19. Thus, the Court observed that the limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relations with the public order. The phrase reasonable restriction means and connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public; the word ‘reasonable ‘implies intelligent care and deliberations, i.e., the choice of a course which reason dictates; legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(A) and the social control permitted by Article 19(2) to (6)., it must be held to be wanting in that quality.
In the background of this, the Apex Court was grappled with a pertinent question which required an answer whether there is any distinction between the freedom of the print media and that of the electronic media such as radio and television, and if so, whether it necessitates more restrictions on the latter media. The Court in answering this question, reiterated what did it opine in Secretary Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal : “There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audiovisual impact and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore, needs Regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from controls both of the Government and the dominant influential sections of the society. … 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 virtues of the electronic media cannot become its enemies. It may warrant a greater Regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures.”
iii. Public Order:
Holding Section 66A of ITA unconstitutional, the Court unequivocally opined that the said Section fails to befit within the measures of Article 19(2). Public order is an expression which signifies a state of tranquility which prevails amongst the members of a political society as a result of the internal Regulations enforced by the Government which they have established. Public order comprehends disorders of less gravity than those affecting security of State, law and order also comprehends disorders of less gravity than those affecting public order; one has to imagine three concentric circles — law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State and it is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. What is the distinction between law and order and public order? There seems no formula which may distinguish one from another. It seems expedient, opined the Court that “Section 66A of the ITA is intended to punish any person who uses the internet to disseminate any information that falls within its purview. It discerns that the recipient of the written word that is sent by the person who is accused of the offence is not of any importance so far this Section is concerned. It also seems that the information that is disseminated may be to one individual or several individuals. This section makes no distinction between mass dissemination and dissemination to one person. This Section does not require that such message should have a clear tendency to disturb public order. Such message need not have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent — there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order whatsoever. … Mere ‘annoyance’ need not cause disturbance of public order. Under Section 66A, the offence is complete by sending a message for the purpose of causing annoyance, either ‘persistently’ or otherwise without in any manner impacting public order.”
iv. Clear and present danger-tendency to affect:
The Apex Court recognizes the echoes of the test of ‘clear and present danger-tendency to affect’ test, originally enunciated by Justice Holmes, in Indian law , and has expounded with elocution: “Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.”
v. Defamation:
Injury to reputation of a person caused by spoken or published words is the genesis of defamation. Does Section 66A concern itself with injury to reputation? The Court a multo fortiorari expressed: “It will be noticed that for something to be defamatory, injury to reputation is a basic ingredient. Section 66A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. It is clear, therefore, that the Section is not aimed at defamatory statements at all.”
vi. Incitement to an Offence:
Has Section 66A to do something with incitement to an offence? Free speech and expression, if causes or tends to cause an incitement to an offence, it is regulated by the reasonableness test under Article 19(2). The information that is disseminated may be either ‘discussion’ or ‘advocacy’ or ‘opinion’ or ‘articulation of perception’. The Court, thus, opined that Section 66A has no proximate connection with incitement to commit an offence on multiple fronts. “First, the information disseminated over the internet need to be information which incites anybody not all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Second, the mere causing of annoyance, inconvenience, danger, etc. , or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the nPenal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with ‘incitement to an offence’. As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc., and being unrelated to any of the eight subject matters under Article 19(2), is declared as unconstitutional.”
vii. Decency or Morality:
Free views expressed must muster that they are not being obscene inasmuch as obscenity influences or depraves and corrupts those whose minds are easily prey of immoral impetus or open to such immoral influences, and smacks of the contemporary community standards, i.e. , how should a decent person live in a community or society and its prescribed societal norms. The Court asserted: “What has been said with regard to public order and incitement to an offence equally applies to decency and morality. Section 66A cannot possibly be said to create an offence which falls within the expression ‘decency ‘or ‘morality’ in that what may be grossly offensive or annoying under the Section need not be obscene at all. In fact, the word ‘obscene’ is conspicuous by its absence in Section 66A.”
viii. Vagueness:
The expressions used in Section 66A are completely open-ended and undefined and, therefore, suffer from the infirmities of clarity. It is a basic premise of due process of law that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. Vague laws may trap the innocent persons within their arbitrary and discriminatory folds, for they are wanting in fair or reasonable opportunity to know what is prohibited. Vague expressions seems to be the germ of uncertain meanings and uncertain meanings inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.” Incidentally, observed the Court, “every expression used in Section 66A is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression “persistently” is completely imprecise — suppose a message is sent thrice, can it be said that it was sent “persistently”? Does a message have to be sent (say) at least eight times, before it can be said that such message is “persistently” sent? There is no demarcating line conveyed by any of these expressions — and that is what renders the Section unconstitutionally vague. … Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”
ix. Chilling Effect and Overbreadth:
What is the chilling effect induced by the threat of expressions used in Section 66A? The scary effect of the said provision is that it is cast so widely that virtually any opinion or view or point of view on any subject on internet pertaining to governmental, literal, scientific or other matters which may be unpalatable to certain sections of society would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net, and such is the reach of the said provision and if it is to withstand the test of constitutionality the chilling effect of it would be total. For instance, liberal views or communications over the internet on the emancipation of women or the abolition of the caste system or whether certain members of a non proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold, may grossly offend or annoy a certain section of a particular community and would fall within the net cast by Section 66A of the ITA. In point of fact, observed the Court, it casts a chilling effect on free speech and expression. The Apex Court while declaring Section 66A ITA unconstitutional as the offence made out would depend upon factors which are uncertain, opined: “The law should not be used in a manner that has chilling effects on the freedom of speech and expression. It is thus clear that not only are the expressions used in Section 66A expressions of inexactitude but they are also over board or over breadth and would fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.” (Emphasis supplied).
x. Possibility of an act being abused is not a ground to test its validity:
Section 66A is not near to wizardry inasmuch as it is not the product of great legislative skill, but is a product of elective despotism wisdom that does neither tolerate nor accommodate nor adjust nor listen to articulations of perceptions over point of views. Holding Section 66A invalid and incompatible with the constitutional norms, the Court a proprio vigore opined: “If such powers are capable of being exercised reasonably it is impossible to say that they may not also be exercised unreasonably. … If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how it may be administered.”
In the backdrop of this, it discerns that the said provision is vague because it is not possible which provision of the said Section is saved and which provision of the said Section is severed as enjoined in Article 13 of the Constitution. Thus, the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. Therefore, the doctrine of severability is not attracted and as such it is wholly unconstitutional and void. It also discerns Section 66A manufactures new grounds or categories of criminal offences that do not fall within any of the subject matters contained in Article 19 (2) and, as such, the possibility of its being applied for purposes outside those subject matters is clear. No part of Section 66A is severable and, therefore, the said provision is incompatible with constitutional permissibility. Section 66A suffers from vagueness and the grounds prescribed therein do not fall within the tests of reasonableness.
Afterword:
The case under scanning unearths the invisible action of invisible State by invisible hands of the politicking of elective despotism that is impatient and intolerant to free, fair and fearless speech and expression exercised through media, social media and internet. Section 66A ITA (2009 amendment) is an inconspicuous example of this attitude. Section 66A is constitutionally infirm because it destroys the genesis of free speech and expression under Article 19 (1) (a) (2) of the Constitution. The tests prescribed by the said provision of ITA are outside the permissible norms of reasonableness and suffer from the frailty as well as fragility of vagueness, overbreadth, chilling effects, clear and present danger-tendency. It fails to make a clear distinction between advocacy and incitement. Advocacy is the expression of a view or a point of view or articulation or opinion or critique presented through media, social media and internet, and if such expression/advocacy is not inconvenient or insulting or defamatory or annoyance to the majority but only to the fraction then it does not amount to an incitement. We have only strived to analyze the constitutional infirmity of Section 66A ITA and have not analyzed the constitutionality of Sections 69A and 79 because those are not sick of constitutional infirmity. The Shreya Singhal case is a milestone and an innovative judicial gospel of free speech and expression which shall go a long way in the judicial history of India like Maneka Gandhi’s case, which created a history of mutual inclusivity of Articles 14, 19, 21 and 22. The Shreya Singhal’s case indeed is landmark as well as path breaking that establishes an interaction between Articles 19 and 21 inasmuch as that impinge on free speech and expression by elective despotism nevertheless an intrude on life and personal liberty.
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