The interface of Fundamental Rights and the Criminal Law (In the context of Freedom of speech and Expression)

The interface of Fundamental Rights and the Criminal Law (In the context of Freedom of speech and Expression) written by Prapti Kothari student of Institute of Law, Nirma university

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.