By Arbitrary decision, any innocent comment can just not be put in the ambit of Hate Speech and any hate speech cannot be given the shield of right to Speech and Expression

Vaishnavi Annasaheb Nirmal | Manikchand Pahade Law College, Aurangabad | 14th February 2020

Shreya Singhal v. Union of India [WRIT PETITION (CRIMINAL) NO.167 OF 2012]

Facts:

• In the year 2012, Shiv Sena leader Bal Thakerey died. So, there was bandh declared by the Shiv Sena People in Maharashtra.
• These two girls Shaheen Dhada and Rinu Srinivasan lived in Thane, involved in this case. One of them posted something on Facebook and the other one liked it.
• They both expressed their displeasure at a bandh.
• They were arrested by the Mumbai police in 2012 under Section 66A of Information Technology Act, 2000.
• This Section punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will.
• The arrested women were released later on and it was decided to close the criminal cases against them yet the arrested attracted widespread public protest.
• It was felt that the police has misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression.
• In 2013, the central Government came with an advice under which no person can be arrested without the police having prior approval of inspector general of police or any other senior officials to him/her.
• The writ petition has been filed in Public Interest under Article 32 of Constitution of India by Petitioner seeking to declare Section 66A, Section 69 and Section 79 of the IT Act, 2000.
• In this case, the petitioner has raised a large number of points as to the constitutionality of section 66A. According to them, first and foremost section 66A infringes the fundamental right of right to speech and expression and it is not saved by any of the subjects mentioned under Section 19(2) of the Constitution of India. It was also contemplated that this section is creating a huge vagueness and hence giving arbitrary powers to the authorities.
• Large number of people have already been suffered from the misuse of this section.
• In 2012, Shreya Singhal filed a Public Interest Litigation in the Supreme Court of India, against the Act and in 2015 the Supreme Court gave the decision.

Issues Raised:

1. What is the constitutional validity of Section 66-A, 69-A and 79 of IT Act, 2000?
2. Whether Section 66A is curtailing Freedom of speech and expression protected under Art. 19 of the constitution?

Judgement:

A two-judge bench of the Supreme Court struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.

The Court further held that the Section was not saved by virtue of being a ‘reasonable restriction’ on the freedom of speech under Article 19(2). The Supreme Court also read down Section 79 and Rules under the Section. It held that online intermediaries would only be obligated to take down content on receiving an order from a court or government authority. The case is considered a breaking point moment for online free speech in India.

The Hon’ble Court also discussed the concept of balancing the strike between “Hate Speech” and “Free Speech”. The Court stated that Hate Speech is basically when people pass hate comments on religion, race, caste, sex, place, birth etc. And then the dispute arises between freedom of speech and expression and reasonable restrictions. Therefore, court stated that it is important to harmonize the situation by checking the gravity and contend of the statement or comment. Hate Speech is very subjective matter, so it becomes important to protect freedom as well as to protect the feelings of the people. By Arbitrary decision, any innocent comment can just not be put in the ambit of Hate Speech and any hate speech cannot be given the shield of right to Speech and Expression under Article 19(1) (a) of the Constitution.

The Court has also discussed the “Rule of Severability”. In this present case three Sections of the IT Act, 2006 were challenged but the Court has applied this rule. By applying this rule, the court stated that just because one Section is vague or uncertain in its language doesn’t make the whole legislation as vague or arbitrary. In such cases we should apply the rule of severability and struck down the provision only which is vague or uncertain and not anything else. The whole legislation or other provisions deserve not to be struck down.