Shreya Singhal v. Union of India

Many people were arrested under Section 66A of the Information Technology Act, 2000 simply for posting something on Facebook or the internet that the authorities found offensive. The most discussed incident took place in November 2012, when two young women were arrested in Palghar, Maharashtra. One had questioned, on Facebook, the shutdown that followed the death of a major political leader in Mumbai. The other had merely liked that post.

After this, law student Shreya Singhal filed a public interest petition under Article 32, and several other petitions later joined it.

Section 66A was not part of the original Act. It was inserted by the 2008 amendment, which came into force in 2009. It made it an offence to send information from a computer or communication device that was grossly offensive or of a menacing character. It also covered false information sent persistently to cause annoyance, inconvenience, danger, insult, enmity or ill will. The punishment was up to three years in jail along with a fine.

The petitioners also challenged three other provisions: Section 69A (the power to block websites), Section 79 (the liability of intermediaries) and Section 118(d) of the Kerala Police Act.

1. Did Section 66A of the Information Technology Act violate freedom of speech and expression under Article 19(1)(a)?

2. Were Section 69A and Section 79 of the Information Technology Act constitutionally valid?

3. Should Section 118(d) of the Kerala Police Act be struck down?

Petitioners: Section 66A was vague, because words like annoyance, inconvenience and grossly offensive were not defined at all. The section did not fit within any of the eight restrictions in Article 19(2). It would have a chilling effect, meaning people would stop expressing themselves online out of fear. Punishing internet users separately also violated the equality principle in Article 14.

Government: A law can be declared unconstitutional only when it clearly violates the fundamental rights in Part III. The mere possibility of misuse does not make a law invalid. Section 66A was enacted because new kinds of wrongs occur on the internet that do not occur through other mediums. Since the reach and speed of the internet are different, this classification was reasonable and did not violate Article 14.

The Court gave four main reasons for striking down Section 66A.

1. Discussion, advocacy and incitement: The Court described three stages of speech. Discussion means simply talking and sharing ideas. Advocacy means promoting ideas, however unpopular. Incitement means directly provoking an illegal act. Discussion and advocacy, however unpopular, are at the core of free speech. Only incitement can be restricted under Article 19(2). Section 66A punished even discussion and advocacy, which is not permissible.

2. Vagueness and overbreadth: Words like grossly offensive, annoyance and inconvenience mean different things to different people. Criminal law must be clear, so that the common man knows what is allowed and what is not. The section was also overbroad, because it caught completely innocent speech within its scope.

3. No link with Article 19(2): Section 66A had no direct connection with any of the eight grounds in Article 19(2). On public order in particular, the section did not require any element of public disorder. It treated a message to one person and a message to a million people the same way, and it did not require any immediate danger. The Court held that there must be a proximate (direct and close) relationship between the speech and public disorder, like a spark landing on a heap of gunpowder.

4. Chilling effect: The section was so broad that any dissenting opinion could fall within it. On the government's assurance that the law would not be misused, the Court said that governments come and go but the law remains. A government's assurance cannot make a vague law constitutional.

On Article 14, the Court agreed with the government. The internet is different from other mediums, and a separate law for it is not, by itself, discrimination. Section 66A still failed the test under Article 19.

Final verdict:

- Section 66A was declared unconstitutional in its entirety.
- Section 118(d) of the Kerala Police Act was also struck down, because "causing annoyance in an indecent manner" was just as vague.
- Section 69A was held constitutionally valid because it had strict safeguards. Blocking is allowed only on specific grounds related to Article 19(2). Written reasons are mandatory, there is a hearing before a committee, and the originator of the content can also be heard.
- Section 79, a safe harbour provision protecting intermediaries like Facebook and Google, was read down along with the Intermediary Guidelines Rules, 2011. An intermediary must remove content only when it receives a court order or a government notification, and only when the content relates to Article 19(2). It need not act on every random complaint.

Constitution of India, Article 19(1)(a); Article 19(2); Article 14; Article 32; Part III; Information Technology Act, 2000, Section 66A; Information Technology Act, 2000, Section 69A; Information Technology Act, 2000, Section 79; Information Technology (Intermediary Guidelines) Rules, 2011; Kerala Police Act, Section 118(d)

This is the landmark judgment on internet freedom. It declared that online speech enjoys the same protection as ordinary speech.

It gives students important tests for exams:
- the discussion, advocacy and incitement distinction;
- vagueness and overbreadth;
- the chilling effect;
- the proximate relationship with public order.

It also explains when website blocking (Section 69A) is valid and how intermediary liability under Section 79 works.

The case is still relevant because police in many places kept registering cases under Section 66A even after the judgment. On 12 October 2022, the Supreme Court, in a petition by PUCL, directed that no prosecution would proceed under Section 66A and that the section be removed from all pending cases.

Hypothetical: Prince posts on social media sharply criticising a city bandh called after a leader's death, and Farhan likes the post. Neha, who supports the bandh, finds the post offensive and complains to the police.

Under the reasoning in Shreya Singhal, Prince's post is only discussion and advocacy. It has no proximate link to public disorder. He cannot be prosecuted merely because Neha is annoyed or offended, and Farhan certainly cannot be prosecuted for a like.

Now suppose instead that Aadil posts a message directly urging a mob to attack a particular shop immediately. That is incitement closely linked to public disorder, and action can still be taken on Article 19(2) grounds.