This article is authored by Bokka Ashwika and edited by Mr. Anoop Prakash Awasthi, AOR and Adv. Prapti Singh.

Introduction: The landmark case of Shreya Singhal v. Union of India (AIR 2015 SC 1523; Writ Petition (Criminal) No. 167 of 2012) is among the most important in the Indian judicial system. In the case of Shreya Singhal v. Union of India, the constitutionality of Section 66A of the Information Technology Act 2000 is questioned in light of the basic right to “Freedom of Speech and Expression” guaranteed by Article 19(1)(a) of the Indian Constitution. In Shreya Singhal v. Union of India, the Supreme Court of India overturned Section 66A of the Information Technology Act, 2000, which allowed for the arrest of anyone for posting allegedly offensive content on the internet or social media. This was done by maintaining the right to free speech. In Shreya Singhal v. Union of India, the Supreme Court ruled that the Section was not preserved because it was a “reasonable restriction” on the right to free speech under Article 19(2).

Brief Facts: Shaheen Dhada and Rinu Srinivasan, two women, were detained by Mumbai police under the guise of Section 66A for allegedly posting offensive and disrespectful comments on Facebook regarding the “bandh” (city-wide shutdown of Mumbai) that Shiv Sena Party members in Maharashtra called in response to the incident involving Shiv Sena Chief Bal Thackery’s death. Shaheen Dhada, age 21, was jailed for making a harmless comment on her Facebook profile. At the same time, Renu Srinivasan, a classmate, was charged with violating the law by clicking “like” on Shaheen’s statement. 

The police later released the women, and all accusations against them were dropped, but the episode nonetheless attracted much media attention and criticism. The women later filed a petition, claiming that Section 66A is illegal because it restricts their right to free speech. First, the Indian Supreme Court issued an interim remedy prohibiting any arrest in compliance with Section 66A unless senior police officials approved it. In Shreya Singhal v. Union of India, the Hon’ble Supreme Court carefully considered the constitutionality of the clause.

Issues Involved: The primary issues involved in Shreya Singhal v. Union of India were:

1. Is Section 66A of the Information Technology Act constitutionally valid?

2. Whether Section 69A and the Rules are unconstitutional?

3. Whether Section 79(3) (b) and Information Technology “Intermediary Guidelines” Rules, 2011, constitutionally valid or not?

Judgment: A division bench of Justices J. Chelameswar and R.F. Nariman in ‘Shreya Singhal v Union of India’ ruled that Section 66A of IT Act, 2000 is unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).” Article 19(1)(a) gives people the right to speech and expression, whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.

The court said: “Every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another”. The court also held that blocking information for public access given under Section 69A of the IT Act is constitutionally valid. Speaking on behalf of the Court, Justice Nariman in Shreya Singhal v Union of India addressed the various factors that can be used to determine whether speech restrictions can be justified under Article 19(2) of the Indian Constitution. Further, the Court held that the ‘public order’ restriction under Article 19(2) of the Constitution would not apply to cases of ‘advocacy’ but only to ‘incitement’, specifically incitement which has a proximate relation to public disorder.

Conclusion: In light of the foregoing discussion, I contend that even though Shreya Singhal’s decision to overturn section 66A of the IT Act appears to have made some progress in India’s free speech law, its decision regarding the constitutionality of sections 69A and 79 of that Act shows that it did not completely eliminate the effects of the first constitutional amendment. It relied on the State to employ its vast authority for the greater good rather than exercising restraint on the citizens’ freedom of speech. In this way, it made it easier to establish a tightly regulated public sphere that acts in accordance with governmental objectives. Because it accepts the expansion of a “state of exception” and “culture of authority” into the digital space, the ruling in Shreya Singhal is not significantly different from the judicial decisions that upheld the Emergency power, preventive detention orders, the law of sedition, and anti-terrorism laws. Most crucially, it rejects the idea that a citizen is an independent agent who is in charge of deciding how to react to a given discourse.

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