SHREYA SINGHAL V. UNION OF INDIA, AIR 2015 SC 1523

MATERIAL FACTS

Shaheen Dhada and Rinu Srinivasan were arrested by the Mumbai police in 2012 for posting comments showing their dissent at a bandh organized following the Death of Shiv Sena Chief Bala Saheb Thackery, on their Facebook profile. Even though the two arrested girls were later discharged and criminal charges against them were dropped, a nationwide protest was started based on the presumption that the police abused their power by invoking Section 66A and that Section 66A was infringing the Fundamental Right of Speech and Expression. Moreover, in January 2013, the central government brought an advisory under which no person can be arrested without the police having prior approval of the inspector general of police or any other senior officials to him/her. A writ PIL was filed under Article 32 of the Indian Constitution seeking to declare Section 66A, Section 69, and Section 79 of the IT Act, 2000, by the Petitioner. Under a single PIL case known as “Shreya Singhal v. Union of India,” the Apex Court compiled the whole petition pertaining to the constitutional legitimacy of the information technology act or any provision within it.

ISSUES

1. Whether sections 66(A), 69, and 79 of the IT Act, 2002 and section 118(d) of the Kerela Police Act are required to be declared unconstitutional for violating Article 19(1)(a) of the Constitution of India?
2. Whether Section 66A arbitrarily, excessively, and disproportionately invades the right to Freedom of Speech and Expression? And if it creates a chilling effect on Freedom of Speech and Expression.
3. Whether Section 66A of the IT Act, 2002 is protected under article 19(2) as a reasonable restriction to freedom of speech and expression?
4. Whether Section 66A infringes Article 14?

ARGUMENTS BY THE PARTIES

It was contended by the petitioner that Section 66A infringes the Right to the Freedom of Speech and Expression guaranteed under Article 19(1)(a) and shall not be protected by the reasonable restrictions provided under Article 19(2). And that it creates a ‘Chilling effect’ on the Right of Freedom of Speech and Expression. And that there is no difference provided between, discussion, accuracy, and incitement of an expression. Section 66A is vague in nature, as it does not specifically define the terminology used in the law. Thus, it can be misused easily and arbitrarily. In addition, Article 14 has been violated as there is no intelligible differentia between information transmitted through the internet and other traditional sources. Thus, sections 66A, 69, and 79 of the Information Technology Act are in clear violation of fundamental rights given under Article 12-35 of the Constitution of India.
On the other hand, the respondent contended that there is at present no requirement of Courts to step in, and would be required only when a law is clearly violative of Part III and that there is a presumption in favor of the constitutionality of the law in question. Mere probability of abuse of provision cannot be a ground to declare a provision unconstitutional and that provision cannot be declared unconstitutional merely based on it being vague, also, the language is liberal in nature for the greater good.

JUDGEMENT

The Supreme Court of India repealed Section 66 of the Information Technology Act, in Toto, for violation of Article 19(1) (a) of the Indian Constitution and maintained that it cannot be guarded under Article 19 (2) anymore. Section 69A and the Information Technology Rules, 2009, were held to be within the legal powers of the Constitution and constitutionally valid. Contingent to the interpretation of Section 79(3)(b) of the IT Act, Section 79 was declared to be valid and lawful. The Hon’ble Court also annulled section 118(d) of the Kerala Police Act.

ANALYSIS

The right conferred by Art 19(1) (a) is neither absolute nor unchecked and it features rights with permissible restrictions. Each sub-clause of Art 19(1) is subjected to different kinds of restrictions, which are reasonable in nature. These restrictions are the rights and interests of others, which are also fundamental in nature. While the rights reflect claims of the individual, the limitation protects claims of other individuals, society, and the State. All citizens are fundamentally equal, and thus the welfare of each citizen is of equal importance to the society, meaning that an individual’s rights cannot override or transcend the rights of others in an ordered society. It’s the nature of democracy that needs Freedom of Speech and expression. Freedom of speech consists of several aspects, including the right to express one’s opinion unimpeded, by the fear of reprisal. It is one of the most fundamental elements of a wholesome democracy. It allows individuals to openly engage in the economic, social, and political decisions of their nation, but not at the cost of others’ rights.

CONCLUSION

The court acknowledged that the words used in 66A are entirely unrestricted and ambiguous and are not protected under Article 19(2) of the Constitution of India. In fact, Section 66A had no immediate relation with inflicting disruption to law and order or provocation to perpetrate an offense and was thus knocked down by the court.

The mechanism followed by the court was to secure the constitutional right to freedom of speech and expression, and by demanding the safeguard pursuant to Article 19(2) of the Constitution; the law could in no way undermine this right. Also, the court has abrogated only those parts which were ambiguous and contentious in nature by incorporating the law of severability. It is not necessary to hold the entire legislation void or unconstitutional.

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Amita vs Union Of India & Anr on 11 August 2005

Introduction

This case is a writ petition filed by a visually challenged girl in the Supreme Court of India on the grounds of her being rejected on the basis of her disability for the post of probationary officer in the Banking services recruitment board, Chennai.

Facts

An advertisement was released by the Banking services recruitment board Chennai for the appointment of a probationary officer. Seeing the advertisement, Amita, a visually challenged girl applied for the post. The criteria for the post were as follows.

1. The candidate must be a graduate from any recognized university.
2. The candidate should not be less than 21 years of age and not more than 30 years of age.
   These criteria also included any other qualifications mentioned by the government of India.
   The petitioner sent her application along with a demand draft. She mentioned in her application that she is visually impaired so that the board can make the necessary arrangements regarding providing of scribe for the examination. After a few days her application was returned to her and it was mentioned there that ‘As we don’t hire visually challenged candidates for the post of probationary officer, your application is rejected.’ Aggrieved by the decision of the board, Amita filed a writ petition in the supreme court of India under Article 32 of the constitution of India.
   The petitioner was also allowed to amend her petition in which she prayed for the following reliefs.
3. An order of mandamus should be passed in order to allow her to sit for the entrance examination.
4. The board in the instant case has not given her an equal opportunity which is a violation of articles 14, 16, 19, and 21.
5. An order of mandamus should be passed whereby a proper action should be taken keeping in view the rights of persons with a disability, equal opportunities Act 1995.

Arguments on behalf of the petitioner

The learned counsel on behalf of the petitioner argued that the denial of opportunity by the Board only on the ground of her disability is erroneous on the face as the advertisement only mentioned that the candidates applying for the post should be more than 21 and less than 30 years of age and should be a graduate. The petitioner had fulfilled these criteria. The order of the Board has violated article 14, 16, 19, and 21 of the constitution.

Arguments on behalf of the respondent

The learned counsel on behalf of the respondent argued that the post of a probationary officer is not earmarked for the visually challenged so the rejection of application of the writ petitioner is valid.

Judgment

It was held that the order of the Board cannot be sustained as the writ petitioner has fulfilled all the criteria mentioned in the advertisement, hence she cannot be rejected only on the grounds of her visual impairment. It was also found that the petitioner also applied for the same post in Bangalore and she was given the admit card for the entrance test even after mentioning that she is visually impaired. This clearly proves that visual impairment cannot be a reason for the rejection of the application.

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TAPASYA UMESH PISAL v. UOI AND OTHERS (2018)12 SCC 57

RELEVANT FACTS

A woman Tapaya Umesh Pisal (Petitioner) filed a petition before the Hon’ble Supreme Court under Article 32 of the Constitution of India for medical termination of her pregnancy. She wanted to termination of pregnancy because there was a danger to her life. She also discovered that her fetus was suffering from tricuspid and pulmonary atresia and a cardiac anomaly.

ISSUES

• Whether she allowed to terminate her pregnancy or not?
• Whether it is valid under the Medical Termination of Pregnancy Act, 1971?
• Whether there is any violation of Fundamental Rights?

RULE OF LAW

• Article 32 of the Constitution of India.
• Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971

JUDGEMENT WITH REASONING

Learned counsel on the behalf of the petitioner submitted that the termination of pregnancy of 24 weeks should be allowed since there is a danger to the life of the mother and the fetus is suffering from various diseases.

After hearing that, the court gave a direction for medical examination of the petitioner by a Medical Board consisting of 5 members. After the examination of the petitioner, the medical board filed a report to the Court which stated that the petitioner was in her 24th week of pregnancy and there are many problems which are associated with the continuation of pregnancy, that is-

• The fetus is having a hypoplastic right heart with tricuspid and small size pulmonary atresia.
• And surgeries are necessary on the fetus to carry high morbidity and mortility.
• Despite these surgeries, such children do not achieve normal oxygen levels and would remail physically incapacitated and have higher chances of severe handicap or sudden death after birth.
• And the fetus should be kept in an isolated complex congenital heart disease because of increased morbility and mortility.
• The Radiologist has reported that a complete absence of right ventricle and pulmonary and tricuspid valve atresia.
• In this report, the Committee of Medical Board has concluded that if the baby delivered alive, the child would have to undergo various surgeries that are associated with high morbility and mortility.
• According to Section 3(2)(b) of MTP Act, 1971-
• “Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, termination of pregnancy is allowed when there is a risk to the life of the mother or grave injury to her physical and mental health with the continuation of pregnancy and if there is a substantial risk to the life of the child, it would suffer from such physical and mental abnormalities as to be seriously handicapped.”
• But in this case, she was in her 24th week of pregnancy. So, finally, the Court held that if the child is born then there is a limited life span with serious handicaps and the baby will certainly not grow into an adult, so there is necessary to terminate the pregnancy. Court also stated that the termination of pregnancy will be appropriate in the interest of justice.

CONCLUSION

By this case, we can understand that sometimes we go beyond the Statutes/Law, which is necessary to the life of any person. It is clearly stated by the Court that some statutes have many complexities to decide the case than the Court decided these cases on the behalf of the interest of justice. In the MTP Act, there is discrimination on various grounds like that married- unmarried, rape victim and unwanted pregnancy and a specific time period for termination of pregnancy. In these cases, the Court is to adjudge in the interest of justice.

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R. Rajagopal and Ors. Vs. State of Tamil Nadu and Ors. (1995)

Abstract

The Indian constitution guarantees fundamental rights that are justiciable upon infringement. Article 19 and Article 21 of the Constitution are important rights, they are the Right to Freedom of speech and expression and the Right to life and personal liberty. Under the provision of Article 21 Right to Privacy is enshrined. R. Rajagopal and Ors. Vs. State of Tamil Nadu and Ors. (Auto Shankar case) is one of the landmark cases which defined the scope of these Articles. Even though we have freedom of speech and expression, Art.19 (2) states that there can be reasonable restrictions. In this case, the Supreme Court of India gave a judgment regarding the powers of govt., application of reasonable restriction, and ambit of Right to Privacy

Facts of the case

A prisoner who was convicted of murder wrote an autobiography which discussed the involvement of senior officials and other government officials in his illegal acts. Meanwhile, he was sentenced to life imprisonment and was going to be hanged later. Before he was hanged he gave his autobiography to his wife with the knowledge of the prison officials. Later to get it published, his wife gave it to the petitioners (publishers) of this case. Before the publication of the book, the Inspector General of Prisons wrote to the publishers with the claim that the autobiography was false, that publication was against prison rules, and threatened legal action if they proceeded with publishing. The reason given by the prison authority for such an act was that the content of the book was defamatory.

Arguments of the parties

The arguments made by the petitioners were as follows:
• Right to freedom and expression is guaranteed by the Indian Constitution. Article 19(2) states as” …..in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or concerning contempt of court, defamation or incitement to an offense.”. The autobiography that had to be published did not violate any of these sub-clauses.
• Auto Shankar being a citizen of India had Rights to publish his own book as it is a Fundamental Right.
• The book was given with the knowledge of the prison officials.
• Right to Freedom and expression has more power than Right to privacy, as it is a part of the Right to life and personal liberty unlike freedom of speech and expression which is a fundamental right in itself.
• The authorities had tortured by using the third-degree method on Auto Shankar (Gouri Shankar) to deny his authorship of the book before he was hanged.
• There was no defamation as truth is considered to be a defense in defamation.

Contentions made by the Respondents were:

• There was no proof as to whether the book was written by the convict because he was hanged to death before any confirmation on this matter could be made. There is a possibility that the publishers may have modified it.
• There is no proof that the book was given to the wife of Auto Shankar with the knowledge and authorization of Prison officials.
• The information given in that book is defamatory and untrue as there is no evidence to prove the events of involvement of government and public officials in his illegal activities.
• The respondents denied torturing the prisoner using the third-degree method.

Judgment

1. The court considered the Right of Privacy, as there might be defamatory statements that would affect the reputation of the officials. But it cannot stop the petitioners from publication until and unless the respondents have the proof to state otherwise. The respondents can file a case under defamation and claim for damages after proving their innocence.
2. No prior prohibition can be made by the authority even before the publication of the autobiography. The court held this aforesaid statement referring to an international case New York Times v. the United States.
3. It was held by the Supreme Court that Auto Shankar had the right to get his autobiography published as there was no malicious intention and the publication was not in violation of any provision.

Conclusion

This case has established the scope and application of Art.19(2) and the Right to Privacy. It clearly stated that the Right to freedom of speech and expression will prevail against the Right to privacy as it is the basic right. The petitioners of the case got full authority to publish the book without any changes and the State cannot prohibit, thus the right of the petitioners sustained.

^[1] https://indiankanoon.org/doc/493243/ (last vivsted 30^th October 2020)

^[2] (1971) 403 US 713

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Chailbihari Trading Private Limited Company v. Union of India

Facts:

The petitioner- Chailbihari Trading Private Limited Company challenged the guidelines dated 25^th June, 2019 issued by the respondent no.2- Central Bureau of Narcotics to regulate import of poppy seeds into India from Turkey. The petitioners stated that the guidelines are an unconstitutional restriction on their right to trade and carry on business. It is not disputed that the Central Bureau of Narcotics regulates poppy seed import into India. The petitioners being registered importers have the necessary license. They agree that there is a cap or quota on the poppy seed import from various points of origin, and there is a cap on the quantity imported for each foreign exporter country. Until recently, the import permissions were by sale of lots. The respondents issued a public notice on 25^th June 2019, in which guidelines for registration of sales contract regarding poppy seed imports from Turkey were laid down. Clause I provide for determining a country cap, which is to be approved by the Department of Revenue based on Narcotics Commissioner’s recommendation, a representative of Directorate General of Foreign Trade and representative of Department of Revenue. The country cap would be based on stock and production of poppy seeds as communicated by the Turkish Grain Board (TMO) or the Turkish Embassy in India, so this cap is not ad hoc or without basis. Clause II provides for the Turkish exporter to be registered with the TMO, the Indian importer has to approach the Narcotics Commissioner for registration of sales contract, conditions for which are prescribed. One condition being each importer can register the quantity applied for or 25 containers (450MT) whichever is less during a particular crop year, along with other detailed provisions for procedure, validity, surrender and penalty.

Issues:

• Whether the Government issued notification to regulate import of poppy seeds in India is unreasonable or discriminatory.
• Whether the notification violates the petitioner’s right to trade and occupation.

Legal Provisions:

• Narcotic Drugs and Psychotropic Substances Act, 1985 section-9 Power of Central Government to permit, control and regulate.
• Constitution of India, 1950 Article 19 (g) to practise any profession, or to carry on any occupation, trade or business.

Petitioner’s Contention:

The petitioner contends that the registration process will create a monopoly and the old system of drawing lots was preferable. They also stated that if the Turkish exporter is registered with the TMO, the requirement for the Indian importer to register is unreasonable and will cause duplication of work. They stated that earlier restriction was of 5 containers and by raising it to 25 the rich and powerful importers will only get the imports. They argued that the time frames are unrealistic and a form of invidious discrimination.

Respondents’ Contention:

The counsel for respondent no.1 referred to the decision of the division bench of Allahabad High Court in Ayurveda Sewashram Kalyan Samiti v. Union of India and others (2014) whereby it was noticed that India is a signatory to the Single Convention on Narcotic Drugs 1961. It was noted that though narcotic and such substances have scientific and medical uses they are also abused and trafficked, beside the constitutional mandate to the state to promote health and nutrition led to the formation of the Indian Policy to Prevent Drug Abuse. India is also a signatory to three other conventions on drug-related matters. The case was regarding import of poppy seeds and the court in that case observed three conditions governing import of poppy seeds- point of origin, importer’s certification that poppy was cultivated legally and the import contacts to be registered with Narcotics Commissioner. 

Observations of the Court:

The court did not find any merit in these contentions. It stated that there was no fundamental right to be an importer or to import poppy seeds, or to import anything without restrictions or without any restrictions only on terms beneficial to a particular person. They stated that the burden of proof is on the petitioner to show how the notification is arbitrary and discriminatory. If a classification is challenged it must be shown that it has no connection to the object of the impugned law, and the petitioner were unable to prove this.  It was clarified that the notification was made pursuant to the MoU between India and Turkey dated 23^rdMay 2018 and by a notification dated 29^th July 2016, the Government of India gave powers to the Department of Revenue to frame guidelines to give effect to the National policy on Narcotic Drugs and Psychotropic Substances controlled by the NDPS Act 1985, the MoU being sovereign cannot be challenged. The notification provides guideline to prevent cartelization, artificial blocking of country caps and artificial raising of re-sale prices. The court noted that no one complained against this notification, also one Ms. Setalvad, an importer had contested this petition. The court noted that the present petition does not question the power to frame such guidelines. The court observed that NDPS Act, chapter III, sec-9 gives Central Government power to control and regulate production, manufacture, import and export of substances including opium poppy cultivation and production all of which is regulated. Chapter III-A of the Foreign Trade (Development and Regulation) Act 1992, inserted by the 2010 amendment which gives powers to the central government to impose quantitative restrictions on import, these restrictions can continue for a maximum period of 4 years expendable by a like period. The court noted that once it is found that there is power to regulate and impose quantitative restriction and there is no challenge to the exercise of that power, nothing remains of the petition. The court criticized the petitioners for filing a petition challenging a government policy framed in a legitimate exercise of statutory power, with no data to support their allegations. The court observed that the petitioner seeks to scrap this new policy and be governed by the old policy without giving any reasons or evidence for the same. The court noted that the objections regarding the registration were not new and the petitioners themselves had followed them in the past. It noted that since the guidelines were issued in furtherance of larger interest then the commercial interest of the petitioners may suffer.

Judgement:

The court did not find merit in the petitioners’ contention and dismissed the petition.

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Neetu Kukar Vs Union Of India And Others

FACTS:

In this case, a case was filed in the High Court of Punjab and Haryana by Neetu Kukar- The petitioner against Dashmesh Public school in Faridkot. The concern of the petitioner was that the children of the school from 6^th standard were bifurcated in different sections on the basis of their performance and marks in the examinations, this was an issue which was raised by several parents as they were against this process. This bifurcation led to all the high-scorers being placed in one class and the others were put in different classes. This upset a lot of students and the petitioner’s daughter was very upset because she could not make it to the top performing section. She took the extreme step of consuming hand wash liquid as an attempt to end her life. The petitioner along with several other parents claimed that this discrimination led to mental trauma among students who couldn’t make it to the top section of their division and the parents were finding it hard to motivate them.

ISSUE:

Whether it is discriminative and violate of the child’s rights to bifurcate students of the class from 6^th standard on the basis of their performance and marks? And should action be taken against the school for practising this discrimination.

PETITIONER CONTENTION:

The petitioner contended that, it is violative of the provisions of Right of Children to Free and Compulsory Education Act, 2009 to differentiate and discriminate the students on the basis of their marks and that this process should be revoked immediately. Further, the petitioner said that this practice of bifurcating students into sections based on their marks and performance is a discriminatory practice and it is violative of Article 14 under the Constitution of India. It affects the mental health of the students and makes them think that they are not good enough when they fail to make it to the top performing sections.

RESPONDENT CONTENTION:

The respondent contended that, none of the claims made by the petitioner are true and the school has done nothing that is discriminative and violative of article 14 of the constitution of India and also does not break the provisions of right of children to free and compulsory education act,2009. Further, the respondent said that the petitioner has made wrong and false allegations against the school as her daughter could not make it to the top section and justified the reason behind bifurcating the sections that the top section has been constituted on the basis of performance and all other sections have students having different merit. A top Section has been created in the interest of the students so that the School can get better results.

JUDGEMENT:

The bench of Justice Sudhir Mittal gave the judgment that Classification of children into sections on the basis of their marks and performance has the tendency of creating a feeling of inferiority amongst children securing less marks and they might face mental trauma thus, the practice is a violation of the fundamental right of elementary education. Further, the court passed the order that this process of bifurcating students should be revoked and stopped immediately for the benefit of the students.

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