SCHOOL OF LAW, MUMBAI

A Research paper submitted on

SHREYA SINGHAL V. UNION OF INDIA: CASE ANALYSIS

FOR SEMESTER VI OF 2020-21, IN THE SUBJECT CYBER LAW

SUBMITTED TO:

Professor Ekta Saini

SUBMITTED BY:

Gopika Mundra

A034

BBA LLB (Hons.)

Fourth Year

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TABLE OF CONTENT

SR.NO PARTICULARS PAGE NO.

1. INTRODUCTION 3

2. RESEARCH METHODOLOGY 5

3. CHAPTER I 7

4. CHAPTER II 8

5. CHAPTER III 12

6. CONCLUSION 12

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INTRODUCTION
The Supreme Court of India on March 24th, 2015 passed a historic judgement of striking down
Section 66A of the Information Technology Act, 2000. This provision was not the part of the
original Act which was created in 2000. This section was inserted in the main act by the
Amendment of 2008. The Amendment revised the act to regulate various types of
cyber/internet crimes like sending of offensive messages through the internet, identity theft,
video voyeurism, cyber terrorism, economic crimes etc.
A plain reading of S.66A would show that this provision was basically a penal provision
prescribing punishment. It said;
“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 attached to this provision is “For the reason for this area, terms "electronic mail"
and "electronic mail message" implies a message or data made or transmitted or gotten on a
PC, PC framework, PC asset or specialized gadget incorporating connections in , pictures,
sound, video and some other electronic record, which might be transmitted with the message.”
Notably, other than this, the provision does not define any of the terms which are used in this
provision for creating crimes
The Section 66A also restricts freedom of speech and expression over internet and other
electronic mediums, prima facie goes much beyond the restrictions mentioned. for example, it
criminalizes sending messages which “cause annoyance” or “hurt” sentiments or are “knowing
wrong” or even “blasphemous”. The irony is many of these actions are perfectly valid over
other forms of media like print. So, an article which write against anybody or hurt someone is
entirely legal when a newspaper prints it, if one sends it over internet one can be arrested for
it. One also wonders how can blasphemy be a crime in a plural and secular country like India.

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So, in the case of Shreya Singhal several issues were raised which was against the Section 66A
and which made this section unconstitutional. Issues like vagueness of section, against Article
19(a) and Article 14 of the Constitution. These issues will be explained in the research paper
in detail.

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RESEARCH METHODOLOGY:

RESEARCH OBJECTIVE
1. To understand the concept of section 66a of IT Act 2000
2. To study about Art 19 of Indian constitution
3. To establish the constitutional validity of 66a of IT Act

SCOPE AND LIMITATIONS

The limitation of this research paper is that it lacks the primary data. The research paper is
totally based on the doctrinal research.

RESEARCH QUESTION
1. Whether Section 66A of IT Act violates Article 19(1)(a) and Article 14 of the
Constitution?
2. Whether the provision of Section 66A contains terms which are vague and therefore
can be interpreted in many ways?

CHAPTERISATION
CHAPTER 1:
This chapter will tell about the background of the case including brief facts, facts in issue, and
arguments from petitioner and respondent.

CHAPTER 2:
This chapter will include the points on which the judgement is based and taken. Also, which
points were not accepted by the Court. Point like free speech, incitement to an offence,
vagueness, public order, intelligible differentia and market place of idea.

CHAPTER 3:
This chapter will include the judgement and the conclusion.

SOURCES OF DATA
The research is primarily doctrinal research. The data used for the study is secondary in nature
and has been collected from books, journals, articles, case laws, law reports, newspapers, e-
sources. No empirical research or survey has been conducted.

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METHOD OF WRITING
Research design of this paper is analytical and descriptive based on Secondary data.

MODE OF CITATION
The mode of citation for this research paper is The Bluebook Citation 20th ed.

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CHAPTER I
FACT OF THE CASE
Two girls Shaheen Dhada and Rinu Srinivasan were arrested by Mumbai police in 2012 for
posting their dismay at bandh brought in the wake of Shiv Sena boss Bal Thackery’s demise
on Facebook. The arrested girls were discharged later and the criminal charges were also
dropped but their arrest was pulled across the country protest. It was assumed that the police
have abused its power to invoke section 66A of IT act as is a breach of fundamental right of
speech and expression. The offence under the said section is cognizable meaning police have
authority to arrest or investigate without the warrants, based on the charges brought under the
information technology act. The result of this action was many famous arrests of people were
happened throughout the country for posting their views and opinions which government called
them “objectionable content” but these contents were just disagreeing political opinions.
As these issues were raised, on January 2013 the Central Government had turned out with an
advisory under which it was held that no person can’t be arrested without the police having
prior approval of inspector general of police or any other senior official to him/her. Under the
single PIL case known as “Shreya Singhal v. Union of India1”, the Supreme Court called the
entire petition regarding constitutional validity of IT Act or any section in the act.

FACTS IN ISSUE
A writ petition was filed in public interest under Article 32 of the Constitution of India for
declaring section 66A, 69A and 79 as unconstitutional on the ground that the words used in
these sections are broad and vague. Also, these sections are incapable of being judged on
objective standards as they fall against Article 14, 19(1)(a) and 21 of the Constitution.
Petitioner further argues that the terms used under these sections like menacing offence,
annoyance, inconvenience, obstruction, danger and insult have not been defined under the
General Clause Act, IT Act or any other law. Also, provisions set out an unreasonable
classification between netizens and citizens as freedom guaranteed under section 19(1)(a) to
citizens including general media which is now controlled as far as netizens are concerned. If
netizens make comments which is generally made by citizens, then they will be arrested but
citizen publishing his opinion on newspaper or media is not arrested. This is how these
provisions violate Article 14.

1
AIR 2015 SC 1523.

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PETITIONER’S ARUGUMENTS
1. Petitioner argued that Section 66A takes away Article 19(1)(a) i.e. the Freedom of
Speech and Expression and is not saved by the Article 19(2) which mentioned the
reasonable restriction.
2. Therefore, causing of annoyance, inconvenience etc. are outside the purview of Article
19(2).
3. The said section seeks to create an offence but has vagueness as it does not clearly
define the terminology used in it. There is no limitation given to use those terminology
its all left open for the desire of the law enforcement agencies.
4. It also violates Article 14 as there is no intelligible differentia because only one means
of communication is targeted by this section. Thus, it is self-discrimatory.

RESPONDENT’ ARGUMENTS
1. Respondent argued that Legislature is in the best position to address the requirements
of the people and the courts will only step in when a law is clearly violative of Part III
and there is presumption in favour of Constitutionality of the law in question.
2. Only probability of abuse cannot be a justification to declare a provision invalid.
3. Loose Language is used to safeguard the rights of the people from those who violate
them by using this medium.
4. Vagueness is not a ground to declare a statute unconstitutional.

CHAPTER II

FREE SPEECH
In Indian Constitution, Preamble guarantees freedom of thought and expression which is of
key significance. The right is given under Article 19(1)(a) that guarantees the Freedom of
Speech and Expression which was acknowledge in the case of Maneka Gandhi v. Union of
India2, the Supreme Court held that the freedom of speech and expression has no geographical
limitation and it moves with the right of a citizen to collect information and to exchange thought
with others not only in India but outside India also.
In Romesh Thappar v. State of Madras3, it was stated that “Freedom of speech and Expression
that of the press lay at the foundation of all democratic organisations, for without free political

2
AIR 1978 SC 597.
3
AIR 1950 SC 124.

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discussion there is no public education, so essential for the proper functioning of the process
of popular government, is possible.”
The Supreme Court in the case of Union of India v. Association for Democratic Reforms and
Anr4 held that “One sided information, disinformation, misinformation and noninformation, all
equally create an uninformed citizenry which makes democracy a farce. Freedom of speech
and expression includes right to impart and receive information which includes freedom to hold
opinions”.
The Supreme Court in Sakal Papers v Union of India5 observed that “the freedom of speech
and expression is one of the most important principles under a democratic constitution.”
Similarly, in the S. Khushboo v Kanniamal and Anr6 the apex Court observed that “the freedom
of speech and expression even not absolute in nature is essential as we need to tolerate
unpopular opinions. The right of freedom of speech and expression needs free flow of opinions
and views essential to support collective life. Custom of Social dialogue by and large is of great
social importance.”

INCITEMENT OF AN OFFENCE
Indian Penal Code does not define the mere causing of annoyance, danger, inconvenience etc.
or having a menacing character or being grossly offences. These are just an ingredient of some
offences under IPC but not offences in themselves. By taking these reasons into consideration,
Section 66A has nothing to do with the “incitement of an offence”. The section in fact curtails
the information that sent on the internet based of annoyance, offensive etc. and they are not
related to any eight conditions given under Article 19(2). Therefore, this section failed to pass
the conditions laid down in Article 19(2) and hence, it can be said that it also breaches Article
19 (1)(a).

VAGUESNESS OF 66A
In Section 66A the words used for formation of the offence are subjective in nature. Words
used in the section is so vague that a person who is accused cannot be put on notice as what is
the offence which has been committed by him/her and at the same time authorities
administering the section are not sure as on what side a specific communication will fall

4
(2002) 5 SCC 294.
5
AIR 1962 SC 305.
6
AIR 2010 SC 3196.

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because expression used in the sentence are so vague in meaning. In nutshell, what might cause
the inconvenience or offensive or annoyance to one might not cause to other.
In Kartar Singh v. State of Punjab7 “it was observed that it is the one of the core principles of
legal jurisprudence that a law must be void of vagueness if its prohibitory application is not
clearly defined.”
In case of Connally v. General Constr. Co.8 “it was observed that a statute which either forbids
or requires the doing of an act in language is so vague that men of common intelligence must
necessarily guess or predicts at its meaning and confused as to its application, violates the first
fundamental of due process of law. This essentiality of clarity in Regulation is essential to the
protections given by the Due Process. It requires the scrapping of laws that are impermissibly
vague.”
The Court rightly refuted the government’s guarantee that the law would be administered fairly.
The Court said that 66A must be judged on its own merits without any reference to how well
it may be administered.

INTELLIGIBLE DIFFERENTIA
The Petitioner argued that Article 14 is also violated because an offence whose ingredients are
so vague in comprehension is unreasonable and arbitrary and it would result in discrimination
and arbitrariness application of the law. Also, there is no intelligible differentia between the
medium of broadcasting, print and live speech as compare to speech on the internet. Moreover,
offences which are similar in nature committed on the internet have imprisonment for
maximum 3 years. Under Section 66A as contrary to defamation which has two years of
maximum sentence, in addition to that, defamation in a non-cognizable offence but under
Section 66A offence is cognizable.
This argument was not agreed by the Apex Court and held that there is intelligible differentia
as the internet gives any person a platform which need very little or no payment to air his views
and anything posted on a site or website travels with speed of light and reaches to millions of
peoples all over the world. Court also declare that there is intelligible differentia between
speech on the internet and other modes of communication for which distinct offences may be
created by legislation. Therefore, the challenge on the basis of Article 14 was failed.

7
AIR 1961 SC 1787.
8
(1994) 4 SCC 569.

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PUBLIC ORDER ACTUALLY DISTURBED OR NOT
For examining the constitutionality of the Section 66A the Court examined whether the acts
prescribed by the provision results in disturbing the public order or not. The Court holds that
Section 66 A is oblivious to such a nuance that is penalizes one to one communication between
individuals which has no nexus to public order. The Court said that mere annoyance to a certain
individual does not satisfy the requirement of maintenance of public order, which justification
is necessary to support the existence of Section 66A.
Also, to verify the suppression of free speech there must be reasonable ground to fear that
serious evil will result if free speech is practiced.

MARKET PLACE OF IDEA BY JUSTICE HOLES

The judgement is mostly relied on the American judgements in context of Article 19(1)(a) and
the principles of “marketplace of ideas”. Although American judgements persuasive value but
we can still rely on these judgements for understanding the basic principles of free speech and
the need of such freedom in democracy.
Justice Holmes, deriving his justification from John Stuart Mill, has given the notion of market
place of ideas in Abrams v. United States9. In the marketplace of ideas good ideas will displace
bad ideas. Wrong opinions will yield to more rational and factional ones. Justice Nariman’s
invocation of the marketplace of ideas is a claim that free speech is necessary in a liberal
democracy because it will eventually ensure a public discourse driven by truth, honesty and
rationality.
Even though attractive, the idea is highly optimistic because of the fact that there is no concrete
evidence to prove that good, rational just arguments always beat and win over unjust and bad
arguments. Psychological research proves that people are very prompt in accepting the opinion
that he/she prefer or already hold, and not to change it only on rational grounds. so, casteist,
sexist, communally charged, class ideologies will dominate a society, not on the strength of its
truth but on the strength of its dominance over the society.

9
250 U.S. 616 (1919).

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CHAPTER III

JUDGEMENT
In a 52-page judgement, which widely examined Indian English and US law on free speech,
the Supreme Court struck down Section 66A of the IT Act. The judgement preserved the
freedom of speech and expression given to people under article19 (1) (a) of Indian Constitution
and also restraining state from arbitrary apply of power in context to freedom mentioned under
article 19 of the constitution, at the same time Court has given clear guidelines for further
enacting law in relation to reasonable restriction on fundamental right and freedom given by
Indian constitution.
Justice Nariman, discussed the various standards which are applicable and decide the
restrictions on speech can be deemed reasonable, under Article 19(2) of the Constitution. The
Court held that Section 66-A has vagueness in its provision and therefore, fell foul of Article
19 (1)(a). Moreover, the Court also considered the “chilling effect” on speech caused by vague
statutory language as a rationale for striking down the provision. Further, the Court held that
the “public order” restriction under Article 19(2) of the Constitution would not be applicable
on the cases of “advocacy”, but only to “incitement” which needs to have proximate relation
to public order.
Of the test on the grounds under Article 14 of the Constitution of India, the Court held that “we
are unable to agree that there is no intelligible differentia between the medium of print,
broadcast and real live speech on the internet.”

CONCLUSION
Supreme Court is not only entrusted with the duty to interpret the law, but also to ensure that
the law is duly implemented in the way it was interpreted. But the important question was left
by the court to examine was who is accountable for the agony suffered by the innocent people
who have been illegally detained under the non-existing law. Further, such incidents leave the
decision of court redundant as it conveys a message that no matter what the law is, authorities
will continue to take law in their hands.

Section 66A of the IT Act, 2000 is struck down entirely as it violated Article 19(1)(a) and not
covered under Article 19 (2). The Preamble of the Constitution of India inter alia states about
liberty of thought, expression, belief, faith and worship. It cannot be over emphasized that when
it comes to democracy, liberty of thought and expression is of prime value that is significance

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under our constitutional schemes. However, the Supreme Court has taken a long time to strike
down section 66A and doing away with the most oppressive censorship law that India has ever
witnessed.

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