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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INTRODUCTION

Evidence in law can be described as a material fact presented before the court in order to support all the contentions and submissions made during a proceeding. Thus, the evidence is something that helps to prove the parties their alleged fact. In a court of law, a judge’s decision in a certain matter will always depend on the legitimate evidence presented in order to ascertain the truth.
Under the Indian Evidence Act, 1872, Sections 61 to 65 deals with the procedure to prove the contents of the documents. These contents of a document can be proved through primary evidence or by secondary evidence. Section 62 of the Act explains when the original document itself is presented in court it is called the primary evidence and section 63 explains if the original document in itself is not presented in the Court the party can provide secondary evidence by fulfilling the conditions under section 65 of the Act.

ELECTRONIC EVIDENCE UNDER INDIAN EVIDENCE ACT

With the increasing contribution of electronic devices in our lives, digital evidence can prove to be an essential part of verifying the truth in the given fact. After the formation of the Information Technology Act, 2000, Section 65A and 65B has been added in the Indian Evidence Act which laid down special provisions as to evidence relating to an electronic record. According to IT Act 2000, ‘electronic record’ means data, record, image, or sound stored, received, or sent in an electronic form. Section 65B of the Indian Evidence Act talks about the procedure regarding the admissibility of electronic records and sub-section 4 of Section 65B talks about the condition of obtaining a certificate before presenting such electronic records. These conditions had led to conflicting opinions among the judgments of the Apex Court.
Section 65B says- “Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.” But further, sub-section (4) of the same demands for a certificate if it is desired to give a statement of evidence by virtue of this section. Thus, the requirement of a certificate under section 65B arose a legal conundrum which was finally resolved by the Honorable Supreme Court in a landmark judgment of 3 Judge Bench comprising Justice R.F. Nariman, S. Ravindra Bhat and V. Ramasubramanian in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, 2020 SCC Online SC 571.

CERTIFICATE UNDER SECTION 65B IS A PRE-REQUISITE CONDITION

In the above-given case, the appellant filed an appeal, against the judgment of the High Court before the Apex Court. The High Court accepted an important piece of evidence depend upon the petitioners in challenging the election, which was a video recording on a CD (Compact Disc). However, this electronic evidence was produced without the submission of a certificate under Section 65B (4) of the Evidence Act. The Officers who produced the CD were unable to get the certificate even after their persistent efforts. Further, the High Court held that the testimonial evidence during the cross-examination of the Officer satisfies the requirement of Section65B (4) of the Act as the oral evidence. Thus, the appellant in a Special Leave Petition before the Supreme Court challenged the decision of the High Court on the grounds that the electronic record (CD) which was presented as important evidence was admitted without the certificate under Section 65B (4) of the Evidence Act and the oral evidence admitted in place of written certificate is in contravention with the Evidence Act. The Appellant cited the Supreme Court case of Anvar P.V. v. P.K. Basheer & Ors, 2014 10 SCC 473 which contradicts the judgment of the present case.
The respondent in its contention in the above case presented that the Officials who produced the CDs were unable to submit the certificate despite their appropriate efforts. The oral evidence of the witness which was reduced to writing and later signed by the witness suffices the need of Section 65B (4) of the Evidence Act. The Respondent cited the case of Shafhi Mohammad vs. State of Himachal Pradesh, 2018 2 SCC 801 which held that the impossibility or difficulty to produce a certificate shall not hinder the interest of justice. It also contended that the case of Anvar P.V v. P.K. Basheer is only applicable in the case where the party is in a position to procure the certificate.
The intervenors in the appeal also contended that Section65B of the Evidence Act does not specify the stage at which the certificate under Section 65B (4) of the Act must be produced, hence the same may be produced at any stage of the proceedings.

The main issues raised here were

1. Whether the requirement of a certificate as per Section 65B (4) is a pre-requisite before producing secondary evidence as a document/primary evidence?
2. At what stage of the proceedings the certificate can be produced before the court?

The Supreme Court observed the conflicting views of the judgments delivered in Anvar’s case and Shafti Mohammad’s case and finally cleared the air in the present case. The Court answered the issues raised and held that it is mandatory to produce a certificate as per Section 65B (4) before producing secondary evidence as upheld in Anvar’s case. In absence of a certificate, the electronic evidence is inadmissible in Court. The Apex Court whilst reconsidering the Shafti Mohammad’s case overruled its judgment and referred to the following Latin maxim Generalia specialibus non derogant meaning, a special law will always prevail over the general law.
The Supreme Court also held that the certificate should be produced at the time of filing the document. However, if it could not be produced at that stage, it may be permitted to be produced later provided that such late production of the certificate should not prejudice the rights of the accused.

IMPORTANCE OF THE CERTIFICATE UNDER SECTION 65B OF EVIDENCE ACT

As per the judgment in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, The Apex Court clarified certain points –
• The Court quietus the legal conundrum related to the requirement of a certificate to admit electronic evidence under the Indian Evidence Act, 1872 and held that it is condition precedent before admitting any electronic evidence.
• The Court overruled the judgment of the Shafti Mohammad case which said that production of a certificate can be set aside if there is impossibility or difficulty to produce the same and upheld the judgment given in the case of Anvar case.
• Electronic records may be called original or primary evidence if they are stored in the device itself and the copies made therefrom, of the said evidence will be called secondary evidence. Thus, the production of the certificate under Section 65B (4) is not necessary in the former case as the original record is itself produced. This can be done if the party by producing a laptop, tablet, or mobile phone can prove that the concerned device on which, the information is stored, is owned and operated by the party himself. However, the same cannot be done if the concerned device cannot be physically brought in the court for instance a computer, and therefore, to prove the contents of this device a certificate to prove its authenticity is necessary, under section 65B (1) read with Section 65B (4). The same is clarified in the judgment of the Anvar case which reads as- “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” may more appropriately be read without the words “under Section 62 of the Evidence Act”.
• In the case where it is difficult to obtain a document, the Court can, by various statutory provisions such as- Section 165 of the Act which empowers a judge to order the production of any document or records, in order to obtain proof of relevant facts or under Order XVI of the Civil Procedure Code, 1908 which deals with ‘Summoning and Attendance of witnesses’ or under sections 91 and 349 of the Code of Criminal Procedure,1973.
• Further, when the application of the certificate is already requested, to the concerned authority, but the authority does not comply with the request, the party may ask the Court to direct the said authority to produce the certificate. However, if the party has explored all the ways in the law of producing the evidence, but still unable to procure the certificate, the court may excuse the requirement.
• The Court also cleared out that section65B (1) clarifies that admissibility of electronic records must be proved by following the conditions mentioned under section 65B as it is a special provision and section 62 to 65 which deals with non-electronic records are irrelevant as a special law will always prevail over the general law.

CONCLUSION

Electronic records, in this digital time, is a reliable source of evidence, but at the same time, it is more prone to tampering, alteration, substitution, or elimination. Therefore, the Courts are adamant about the submission of a certificate under Section 65B in order to avoid failure of justice and to maintain legitimacy. Thus, the certificate submitted must accompany the electronic record when presented as evidence as upheld in the Arjun Panditrao Khotkar case and if these guidelines are implemented efficiently, they will improve the investigation and evidence proceedings.

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“X” v Union of India & Ors. (W.P (Crl) 1082 / 2020)

Facts:  

The Petitioner (identity kept confidential), a law student from Bangalore have filed a complaint stating that her pictures from social media platform i.e Instagram and Facebook have mischievously and illegally been lifted and posted on a pornographic website along with derogatory captions by the respondents. The Petitioner also made an online complaint to DCP South West, Delhi, but to no avail.

Submission:  

The petitioner certainly believes that Respondent No. 5 is a spurious website, that uploads pornographic content and ought to be banned and taken-down from the world-wide-web by the competent authorities. The counsels also add that Respondent No. 5 has unauthorizedly, illegally and in utter violation of provisions of the Information Technology Act, 2002 and the Indian Penal Code, 1860, have posted the petitioner’s photographs on that website causing her deep distress, anguish and embarrassment. 

The Counsel further submitted that petitioner believes that due to the inaction on the part of the competent authorities, her photographs have already viewed 15,000 times. The Counsel also submits that Facebook Inc, which owns Instagram, should also be held liable under its privacy and cyber safety norms.

The counsel appearing on behalf of the State of NCT of Delhi submits that the petitioner’s complaint has been received at PS: Dwarka, North and may be transferred to Cyber Prevention Awareness and Detection Unit (CyPAD) as it is a specialised unit equipped to deal with cyber crimes matter. The Counsel also submits that immediate steps would be taken to first take-down the petitioner’s photographs that are uploaded on to the errant website and a necessary investigation will be conducted to trace and punish the offenders.

Observation:  

In the light of the above submissions, the Delhi High Court directed that the complaint should be transferred forthwith to the CyPAD unit of Delhi Police and immediate action should be taken to remove the petitioner’s photographs from the errant website. The matter is listed for 30^th July,20. 

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