RESURGENCE OF FREE SPEECH AND EXPRESSION: ANALYZING THE DECISION IN SHREYA SINGHAL v. UNION OF INDIA
In the era of the internet, social media platforms are an indispensable medium for discussing and advocating ideas and opinions on any particular topic so that it can be accessed by a significant population. Though one may argue that regardless of freedom of speech guaranteed to each individual under Article 19(1)(a) of the Constitution of India, numerous legislations and regulations, a large number of people are arrested for exercising online speech every year.Across India, people are continued to be arrested for trivial things like criticizing political parties, their steps, etc. Blocking websites and Internet shutdowns are growing with high frequency to suppress the ideologies of people.A Delhi-based journalist was arrested for merely sharing a video showing a love affair of Uttar Pradesh CM Yogi Adityanath.
Recently, journalist Vinod Dua was arrested by police under sedition and nuisance charges for sharing a dissenting video against the government.People are arrested for sharing and discussing political ideas through memes, images, and videos on WhatsApp and Instagram. The reason cited by authorities for such arrests is annoyance, disturbance, and inconvenience to the public, if permitted will hamper public peace and tranquillity. This is true that some incidents can have a grave impact on public order. More often, the detention of people seemed to have political in nature.
Judicial pronouncements have played a significant role in preserving protected speech and expression, taking, for instance, the case of Romesh Thappar V. State of Madraswhere the Supreme court provided that “freedom to express one’s ideas and opinions is not only necessary for the individual’s liberty but also attributes at the foundation of all democratic organizations.”The Supreme Court was of the same opinion in the case of S. Khushboo v. Kanniamal & Anrand stated that “though freedom of speech and expression is not absolute, it is of cardinal significance to allow free flow of ideas and opinions which is important to sustain the collective life of citizens.” Only an informed citizen will help society and nation for meaningful governance.
A series of victims arrested by anti-speech laws grab our attention towards the judgment laid down by the Supreme Court in Shreya Singhal V. Union of Indiacase where the apex court Struck down Section 66A of Information Technology Act,2010(herein referred to as IT Act, 2010)upholding online free speech. It brings to our notice that any law creating an offense against a person who uses the internet as a medium to pass on any information which may annoy or cause inconvenience very clearly affects freedom of speech and expression of the citizens of India.
Analysis of Shreya Singhal v. Union of Inida
In 2012, Mumbai police arrested two girls for sharing their consternation on Facebook at the bandh imposed in the wake of Shiv Sena founder Bal Thackery’s death. The abuse of authority was exercised under Section 66A of IT Act, 2010 that allows police to arrest anyone without warrants just on the presumption that acts of individuals may have a distressing impact on public order. Later on, the girls were discharged and criminal cases against them dropped out as the matter pulled out the cases of the detentions of various people for posting their views and opinions which were termed as “objectionable content” but more often these were dissenting political ideas. The Supreme Court called the entire petitions questioning the legality of Section 66A of IT Act, 2010 within a single PIL called “Shreya Singhal V. Union of India”.
· Section 66A of IT Act, 2010 is in contradiction of Article 19(1)(a) of the Constitution of India.
· The intended protections by the act against annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, or ill-will fall outside the purview of Article 19(2) of the Indian Constitution.
· The law was unconstitutionally vague as it fails to specifically define its prohibitions and has a chilling impact on free speech and expression.
· On the other hand, the government argued that it is the duty to the legislature to fulfill the needs of people and court may interfere with the work of legislature only when any law is in contradiction of rights guaranteed under part III of the Constitution of India.
· Mere abuse and vagueness of regulation should not be allowed to declare the whole provision unconstitutional.
The apex court while dealing with the issue had to face the question that arises here; may those incidents have the potential to disturb public peace? There are three stages which are fundamental in understanding the concept of free speech and expression - (i) Discussion (ii) Advocacy (iii) Incitement. Do restrictions impose on mere discussion and advocacy of an idea is a logical step for curbing free speech? Restrictions imposed through Article 19(2) is reasonable only when such propagation of idea reaches the stage of incitement so that it tends to cause public disorder, affects sovereignty and integrity of India, the security of the State, friendly relations with foreign States, etc.
Any remote and fanciful connection between the actions of individuals and public order is not enough to sustain the validity of surpassing free speech. The authorities should not ignore the necessity for immediate or proximate nexus between the online discussion of information and public order sought to be maintained by prohibiting free speech. The impact of the action of individuals should not one far-fetched, hypothetical, or too remote in the chain of its relationship with the public order. The concerned law doesn’t make a distinction between mass dissemination and dissemination to only one person without any clear proclivity to disturb public order.
The mere cause of annoyance and inconvenience caused by the actions of individuals are not reasonable enough to put restrictions on free speech. These reasons are not protected under Article 19(2) of the Constitution of India. Further, the court said that what annoys one may not annoy others.
Additionally, the court followed U.S judicial precedent while dealing with the challenge raised by the petitioners concerning the vagueness of Section 66A of IT Act, 2010. The court stated that “where no reasonable standards are laid down to define guilt in a section which creates an offense, and where no clear guidance is given to either law-abiding citizens or authorities and courts, a Section which creates an offense and which is vague must be struck down as being arbitrary and unreasonable”.The words used in the provision are so loose and vague that an accused person cannot recognize what exactly the offence is committed by him/her. It is fundamental to due process of law that the law should give a person with ordinary intelligence a reasonable opportunity to know what is restricted, so that the person may act accordingly. Vague laws lead to deceiving many innocents by not providing just and fair warning. Furthermore, the law should be clear and explicit in its terms for the avoidance of discriminatory and arbitrary enforcement of the law. This law gives authorities a wide range of powers which sometimes lead to abuse of power.
Moreover, the court said that Section 66A of the IT Act, 2010 has a chilling effect on freedom of speech and expression. As the law fails to clearly define its terms, such as inconvenience and annoyance, a large amount of innocent speech could be curtailed in the name of public order and tranquility. The section is so wide that any dissenting opinion against the majority or person with authority would be caught within its scope. This creates fear and anxiety among journalists, activists, and other individuals by restricting free thoughts and opinions.
The judgment proved to be a landmark in safeguarding online speech exercised through a computer or social media platforms. Though, even after judgment, there are numerous examples of the right to speech being curtailed if it challenges or mocks political establishment. Police across the nation continue to arrest and detain people under scrapped Section 66A of IT Act, 2010.There is an immediate need for permeated knowledge of scrapped the section of the concerned act to the authorities and lower courts. Nowadays, journalists are targeted and tortured by the authorities for sharing their opinions on social media platforms.
The internet is becoming part of life for more and more Indians and it is the responsibility of the government to protect their fundamental right. Freedom of speech and expression through the internet is an integral part of Article 19(1)(a) and any restrictions on the same must be followingArticle 19(2) of the Indian Constitution.There should be stringent enforcement of the law concerning which kind of speech may have the potential to disturb public order and tranquility. Lastly, the government should look forward to clear and explicit laws concerning online speech adhering to the constitutional principle of free speech and expression.
Aritry Das, Free speech under fire in India, Asia Times (June 14, 2019), https://asiatimes.com/2019/06/free-speech-under-fire-in-india/. Shivam Vij, In India, it’s save-the-internet time once again, The Print (Nov. 2, 2019, 4:30 PM), https://theprint.in/opinion/in-india-its-save-the-internet-time-once-again/314880/. Omar Rashid, Journalist arrested for tweet on Adityanath, The Hindu (June 9, 2019, 12:33 AM), https://www.thehindu.com/news/national/other-states/journalist-arrested-for-tweet-on-adityanath/article27699711.ece. Express Web Desk, Sedition case: SC grants interim relief from arrest to journalist Vinod Dua, The Indian Express (June, 14, 2020, 7:05 PM), https://indianexpress.com/article/india/vinod-dua-sedition-case-6458027/. TNN, How a WhatsApp message can get you arrested, The Times of India (Nov. 20, 2017, 4:51 PM), https://timesofindia.indiatimes.com/india/how-a-whatsapp-message-can-get-you-arrested/articleshow/61718967.cms. Romesh Thappar v. State of Madras, AIR 1950 SC 124. S. Khushboo v. Kanniammal, (2010) 5 SCC 600. Shreya Singhal v. Union of India, (2015) 5 SCC 1. Shreya Singhal v. Union of India, (2015) 5 SCC 1. Debanish Achom, “Officials Will Be Jailed”: Top Court On ‘Arrests’ Under Scrapped IT Law, Ndtv (Jan. 7, 2019, 1:38 PM), https://www.ndtv.com/india-news/officials-will-be-jailed-supreme-court-on-arrests-under-scrapped-section-66a-of-it-act-1 Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25.
Author - Anushka Kashyap
Student at Tamil Nadu National Law University.