Shreya Singhal vs. Union of India................................................................................................
IN THE HON’BLE
SUPREME COURT OF INDIA
CASE REGARDING
CONSTITUTION
SHREYA SINGHAL
(APPELLANT)
V.
UNION OF INDIA
(RESPONDENT)
MEMORANDUM ON BEHALF OF THE APPELLANT
COUNSEL ON BEHALF OF THE APPELLANT
HEMANT VERMA
Shreya Singhal vs. Union of India.................................................................................................ii
TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................. i
TABLE OF AUTHORITIES .................................................................................................iii
1. CASES......................................................................................................................................... iii
2. BOOKS ....................................................................................................................................... iii
3. STATUTES ................................................................................................................................. iii
STATEMENT OF FACTS ..................................................................................................... iv
ISSUES RAISED...................................................................................................................... v
SUMMARY OF ARGUMENTS ............................................................................................. 1
WRITTEN SUBMISSIONS .................................................................................................... 2
PRAYER FOR RELIEF.......................................................................................................... 5
MEMORANDUM ON BEHALF OF THE RESPONDENT
Shreya Singhal vs. Union of India.................................................................................................iii
Sec. Section(s)
A.I.R. All India Reporter.
Bom. Bombay
C.J. Chief Justice
ed. Editor(s)
Etc. et cetra
H.C. High Court
I.L.R. Indian Law Reporter
J. Justice
Mad. Madras
Ors. Others
p. Page
Rep. Report(s)
S.C. Supreme Court
S.C.C. Supreme Court Cases
UOI Union of India
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Shreya Singhal vs. Union of India.................................................................................................iv
TABLE OF AUTHORITIES
Acts/ Statutes/ Legislations:
Information technology Act,2000
The Constitution of India,1950
The Information Technology(Amendment) Act,2008
Cases:
Indian Judgments:
Books:
• Jain M.P, Indian Constitutional Law, LexisNexis (7TH ed. 2014).
• Shukla V.N., The constitution of India,
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Shreya Singhal vs. Union of India.................................................................................................v
STATEMENT OF FACTS
Two girls-Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai police in 2012
for expressing their displeasure at a bandh called in the wake of Shiv Sena chief Bal
Thackery’s death.
The women posted their comments on the Facebook. The arrested women were released later
on and it was decided to close the criminal cases against them yet the arrests 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 apex court had come out with an advisory under which a person cannot be
arrested without the police receiving permission from senior officers. The apex court
judgment came on a batch of petitions challenging the constitutional validity of Section 66A
of the IT Act on the grounds of its vague and ambiguous and section 69 and was being
misused by the law enforcing authorities.
Section 66A of IT Act states that “
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Shreya Singhal vs. Union of India.................................................................................................vi
ISSUES RAISED
1. WHETHER SEC. 66A OF INFORMATION TECHNOLOGY ACT, 2000 CAN BE DECLARED IN
VIOLATION OF ART. 19(1)(a) & 19(2) OF THE CONSTITUTION OF INDIA, 1950?
2. WHETHER THE REASONABLE RESTRICTIONS CAN BE RELAXED TAKING IN
CONSIDERATION THE MEDIA OF COMMUNICATION OF INFORMATION?
3. WHETHER THE SECTIONS 69(A) AND 79 ARE INTRA VIRES THE CONSTITUTION OF INDIA,
1950?
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Shreya Singhal vs. Union of India.................................................................................................vii
SUMMARY OF ARGUMENTS
1. The Sec. 66A of Information Technology Act, 2000 cannot be declared in violation of
Art. 19(1)(a) & 19(2) of the Constitution of India.
2. The reasonable restrictions can be relaxed as the subject medium of the legislation in
question differs from other media of communication.
3. The Sections 69(a) and 79 are intra vires the Constitution of India.
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ARGUMENTS ADVANCED
CONTENTION A:
A.1 THE POSSIBILITY OF ABUSE OF SEC. 66A IS NOT A GROUND TO DECLARE IT INVALID.
In defense of the constitutionality of Section 66A, I would like to put forth my arguments as
such - that the legislature is in the best position to understand and appreciate the needs of the
people. The Court will, therefore, interfere with the legislative process only when a statute is
clearly violative of the rights conferred on the citizen under Part-III of the Constitution;
which the above provision is certainly not. There is a presumption in favour of the
constitutionality of an enactment. Further, the Court would so construe a statute to make it
workable and in doing so can read into it or read down the provisions that are impugned. The
Constitution does not impose impossible standards of determining validity. Mere possibility
of abuse of a provision cannot be a ground to declare a provision invalid. Loose language
may have been used in Section 66A to deal with novel methods of disturbing other people’s
rights by using the internet as a tool to do so. Further, vagueness is not a ground to declare a
statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary.
Section 66A is capable of being abused by the persons and hence it is not a ground to test its
validity if it is otherwise valid. I would further like to put forth that this Government was
committed to free speech and that Section 66A would not be used to curb free speech, but
would be used only when excesses are perpetrated by persons on the rights of others. In The
Collector of Customs, Madras v. Nathella Sampathu Chetty & Anr.1, this Hon’ble Court
observed:
“….This Court has held in numerous rulings, to which it is unnecessary to refer, that the
possibility of the abuse of the powers under the provisions contained in any statute is no
ground for declaring the provision to be unreasonable or void. Commenting on a passage in
the judgment of the Court of Appeal of Northern Ireland which stated: “If such powers are
capable of being exercised reasonably it is impossible to say that they may not also be
exercised unreasonably” and treating this as a ground for holding the statute invalid Viscount
1
[1962] 3 S.C.R. 786
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Simonds observed in Belfast Corporation v. O.D. Commission2: “It appears to me that the
short answer to this contention (and I hope its shortness will not be regarded as disrespect) is
that the validity of a measure is not to be determined by its application to particular cases.…
If it is not so exercised (i.e. if the powers are abused) it is open to challenge and there is no
need for express provision for its challenge in the statute.” The possibility of abuse of a
statute otherwise valid does not impart to it any element of invalidity. The converse must also
follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its
being administered in a reasonable manner. The constitutional validity of the statute would
have to be determined on the basis of its provisions and on the ambit of its operation as
reasonably construed. If so judged it passes the test of reasonableness, possibility of the
powers conferred being improperly used is no ground for pronouncing the law itself invalid
and similarly if the law properly interpreted and tested in the light of the requirements set out
in Part III of the Constitution does not pass the test it cannot be pronounced valid merely
because it is administered in a manner which might not conflict with the constitutional
requirements.”
A.2 THE SEC. 66A OF IT ACT, 2000 IS NOT IN CONTRAVENTION WITH THE PROVISIONS OF
ART. 19(1)(a) & ART. 19(2).
Article 19(1)(a) of the Constitution of India states as follows:
“Article 19. Protection of certain rights regarding freedom of speech, etc.—(1) All
citizens shall have the right— (a) to freedom of speech and expression;”
Article 19(2) states:
“Article 19. Protection of certain rights regarding freedom of speech, etc.—(2) Nothing
in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the
State from making any law, 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 in relation to contempt of court, defamation or incitement to an
offence.”
2
1960 AC 490 at pp. 520-521
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This leads me to a discussion of what is the content of the expression “freedom of speech
and expression”. There are three concepts which are fundamental in understanding the reach
of this most basic of human rights. The first is discussion, the second is advocacy, and the
third is incitement. Mere discussion or even advocacy of a particular cause howsoever
unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy
reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be
made curtailing the speech or expression that leads inexorably to or tends to cause public
disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security
of the State, friendly relations with foreign States, etc.
Section 66A has no proximate connection with incitement to commit an offence. Firstly, the
information disseminated over the internet need not be information which “incites” anybody
at all. Written words may be sent that may be purely in the realm of “discussion” or
“advocacy” of a “particular point of view”. Further, the mere causing of annoyance,
inconvenience, danger etc., or being grossly offensive or having a menacing character are not
offences under the Penal Code at all. They may be ingredients of certain offences under the
Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to
do with “incitement to an offence”. As Section 66A severely curtails information that may be
sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and
being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall
foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as
unconstitutional. S. Rangarajan v. P. Jagjivan & Ors.3: The problem of defining the area of
freedom of expression when it appears to conflict with the various social interests enumerated
under Article 19(2) may briefly be touched upon here. There does indeed have to be a
compromise between the interest of freedom of expression and special interests. But we
cannot simply balance the two interests as if they are of equal weight. Our commitment of
freedom of expression demands that it cannot be suppressed unless the situations created by
allowing the freedom are pressing and the community interest is endangered. The anticipated
danger should not be remote, conjectural or far-fetched. It should have proximate and direct
nexus with the expression. The expression of thought should be intrinsically dangerous to the
public interest. In other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a “spark in a powder keg. Public Order: In Article 19(2)
(as it originally stood) this sub-head was conspicuously absent. Because of its absence,
3
(1989) 2 SCC 574 at paragraph 45
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challenges made to an order made under Section 7 of the Punjab Maintenance of Public
Order Act and to an order made under Section 9 (1)(a) of the Madras Maintenance of Public
Order Act were allowed in two early judgments by this Court in the cases of Romesh Thappar
4
v. State of Madras and Brij Bhushan & Anr. v. State of Delhi5. While dealing with the
expression “public order”, this Court held that “public order” is an expression which signifies
a state of tranquility which prevails amongst the members of a political society as a result of
the internal regulations enforced by the Government which they have established. As an
aftermath of these judgments, the Constitution First Amendment added the words “public
order” to Article 19(2). In Superintendent, Central Prison, Fatehgarh v. Ram Manohar
Lohia6, this Court held that public order is synonymous with public safety and tranquility; it
is the absence of disorder involving breaches of local significance in contradistinction to
national upheavals, such as revolution, civil strife, war, affecting the security of the State.
We have to ask ourselves the question: does a particular act lead to disturbance of the current
life of the community or does it merely affect an individual leaving the tranquility of society
undisturbed? Going by this test, it is clear that Section 66A is intended to punish any person
who uses the internet to disseminate any information that falls within the sub-clauses of
Section 66A. It will be immediately noticed that the recipient of the written word that is sent
by the person who is accused of the offence is not of any importance so far as this Section is
concerned. It is clear, therefore, that the information that is disseminated may be to one
individual or several individuals. The nexus between the message and action that may be
taken based on the message is very much present – there is an ingredient in this offence of
inciting anybody to do anything which a reasonable man would then say would have the
tendency of being an immediate threat to public safety or tranquility. On all these counts, it
is clear that the Section has a proximate relationship to public order.
4
[1950] S.C.R. 594
5
[1950] S.C.R. 605
6
[1960] 2 S.C.R. 821
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CONTENTION B:
B.1 THE DOCTRINE OF REASONABLE RESTRICTIONS CAN BE RELAXED IN THIS CASE AS THE
LEGISLATION IN QUESTION DEALS WITH MEDIUM DIFFERENT FROM OTHER MEDIA OF
COMMUNICATION.
It is humbly submitted to the Hon’ble Court that a relaxed standard of reasonableness of
restriction should apply regard being had to the fact that the medium of speech being the
internet differs from other mediums on several grounds. Following is my written submission
verbatim:
“(i) the reach of print media is restricted to one state or at the most one country while internet
has no boundaries and its reach is global;
(ii) the recipient of the free speech and expression used in a print media can only be literate
persons while internet can be accessed by literate and illiterate both since one click is needed
to download an objectionable post or a video;
(iii) In case of televisions serials [except live shows] and movies, there is a permitted
precensorship' which ensures right of viewers not to receive any information which is
dangerous to or not in conformity with the social interest. While in the case of an internet, no
such pre-censorship is possible and each individual is publisher, printer, producer, director
and broadcaster of the content without any statutory regulation;
(iv) In case of print media or medium of television and films whatever is truly recorded can
only be published or broadcasted I televised I viewed. While in case of an internet, morphing
of images, change of voices and many other technologically advance methods to create
serious potential social disorder can be applied.
(v) By the medium of internet, rumors having a serious potential of creating a serious social
disorder can be spread to trillions of people without any check which is not possible in case
of other mediums.
(vi) In case of mediums like print media, television and films, it is broadly not possible to
invade privacy of unwilling persons. While in case of an internet, it is very easy to invade
upon the privacy of any individual and thereby violating his right under Article 21 of the
Constitution of India.
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(vii) By its very nature, in the mediums like newspaper, magazine, television or a movie, it is
not possible to sexually harass someone, outrage the modesty of anyone, use unacceptable
filthy language and evoke communal frenzy which would lead to serious social disorder.
While in the case of an internet, it is easily possible to do so by a mere click of a button
without any geographical limitations and almost in all cases while ensuring anonymity of the
offender.
(viii) By the very nature of the medium, the width and reach of internet is manifold as
against newspaper and films. The said mediums have inbuilt limitations i.e. a person will
have to buy / borrow a newspaper and / or will have to go to a theatre to watch a movie. For
television also one needs at least a room where a television is placed and can only watch
those channels which he has subscribed and that too only at a time where it is being telecast.
While in case of an internet a person abusing the internet, can commit an offence at any place
at the time of his choice and maintaining his anonymity in almost all cases.
(ix) In case of other mediums, it is impossible to maintain anonymity as a result of which
speech ideal opinions films having serious potential of creating a social disorder never gets
generated since its origin is bound to be known. While in case of an internet mostly its abuse
takes place under the garb of anonymity which can be unveiled only after thorough
investigation.
(x) In case of other mediums like newspapers, television or films, the approach is always
institutionalized approach governed by industry specific ethical norms of self conduct. Each
newspaper / magazine / movie production house / TV Channel will have their own
institutionalized policies in house which would generally obviate any possibility of the
medium being abused. As against that use of internet is solely based upon individualistic
approach of each individual without any check, balance or regulatory ethical norms for
exercising freedom of speech and expression under Article 19[ 1] [a].
(xi) In the era limited to print media and cinematograph; or even in case of publication
through airwaves, the chances of abuse of freedom of expression was less due to inherent
infrastructural and logistical constrains. In the case of said mediums, it was almost impossible
for an individual to create and publish an abusive content and make it available to trillions of
people. Whereas, in the present internet age the said infrastructural and logistical constrains
have disappeared as any individual using even a smart mobile phone or a portable computer
device can create and publish abusive material on its own, without seeking help of anyone
else and make it available to trillions of people by just one click.”
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All the above factors may make a distinction between the print and other media as opposed to
the internet and the legislature may well, therefore, provide for separate offences so far as
free speech over the internet is concerned. There is, therefore, an intelligible differentia
having a rational relation to the object sought to be achieved – that there can be creation of
offences which are applied to free speech over the internet alone as opposed to other
mediums of communication. In fact, this aspect was considered in Secretary Ministry of
Information & Broadcasting, Government of India v. Cricket Association of Bengal7, where
the following question was posed: “The next question which is required to be answered is
whether there is any distinction between the freedom of the print media and that of the
electronic media such as radio and television, and if so, whether it necessitates more
restrictions on the latter media.” The Court answered as thus: “There is no doubt that since
the airwaves/frequencies are a public property and are also limited, they have to be used in
the best interest of the society and this can be done either by a central authority by
establishing its own broadcasting network or regulating the grant of licences to other
agencies, including the private agencies. What is further, the electronic media is the most
powerful media both because of its audio-visual impact and its widest reach covering the
section of the society where the print media does not reach. The right to use the airwaves and
the content of the programmes, therefore, needs regulation for balancing it and as well as to
prevent monopoly of information and views relayed, which is a potential danger flowing
from the concentration of the right to broadcast/telecast in the hands either of a central
agency or of few private affluent broadcasters. But to contend that on that account the
restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those
permissible under Article 19(2) and dictated by the use of public resources in the best
interests of the society at large, is to misconceive both the content of the freedom of speech
and expression and the problems posed by the element of public property in, and the alleged
scarcity of, the frequencies as well as by the wider reach of the media. If the right to freedom
of speech and expression includes the right to disseminate information to as wide a section of
the population as is possible, the access which enables the right to be so exercised is also an
integral part of the said right. The wider range of circulation of information or its greater
impact cannot restrict the content of the right nor can it justify its denial. The virtues of the
electronic media cannot become its enemies. It may warrant a greater regulation over
7
(1995) 2 SCC 161 in para 37
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licensing and control and vigilance on the content of the programme telecast. However, this
control can only be exercised within the framework of Article 19(2) and the dictates of public
interests. To plead for other grounds is to plead for unconstitutional measures. Hence the
body like the Press Council of India which is empowered to enforce, however imperfectly,
the right to reply. The print media further enjoys as in our country, freedom from pre-
censorship unlike the electronic media.”
B.2 THE CHALLENGE ON THE VIOLATION OF ART. 14 IS NOT VALID.
As stated, all the above factors definitely make a distinction between the print and other
media as opposed to the internet and the legislature may well, therefore, provide for separate
offences so far as free speech over the internet is concerned. There is, therefore, an
intelligible differentia having a rational relation to the object sought to be achieved – that
there can be creation of offences which are applied to free speech over the internet alone as
opposed to other mediums of communication. Thus, an Article 14 challenge may be repelled
by the Hon’ble Court on this ground. Counsel for the petitioners is wrong in saying that
Article 14 is also infringed in that an offence whose ingredients are vague in nature is
arbitrary and unreasonable and would result in arbitrary and discriminatory application of the
criminal law. The intelligible differentia is clear – the internet gives any individual a platform
which requires very little or no payment through which to air his views. I would request the
Court to pay attention to the fact that something posted on a site or website travels like
lightning and can reach millions of persons all over the world. If the petitioners were right,
this Article 14 argument would apply equally to all other offences created by the Information
Technology Act which are not the subject matter of challenge in these petitions. There exists
an intelligible differentia between speech on the internet and other mediums of
communication for which separate offences can certainly be created by legislation. Therefore
their challenge on the ground of Article 14 must fail.
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CONTENTION C:
THE SECTIONS 69(A) AND 79 ARE CONSTITUTIONALLY VALID.
The Section 69(A) goes as follows: Power to issue directions for blocking for public access
of any information through any computer resource.—(1) Where the Central Government or
any of its officers specially authorised by it in this behalf is satisfied that it is necessary or
expedient so to do, in the interest of sovereignty and integrity of India, defence of India,
security of the State, friendly relations with foreign States or public order or for preventing
incitement to the commission of any cognizable offence relating to above, it may subject to
the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any
agency of the Government or intermediary to block for access by the public or cause to be
blocked for access by the public any information generated, transmitted, received, stored or
hosted in any computer resource. (2) The procedure and safeguards subject to which such
blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1)
shall be punished with an imprisonment for a term which may extend to seven years and shall
also be liable to fine. It will be noticed that Section 69A unlike Section 66A is a narrowly
drawn provision with several safeguards. First and foremost, blocking can only be resorted to
where the Central Government is satisfied that it is necessary so to do. Secondly, such
necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons
have to be recorded in writing in such blocking order so that they may be assailed in a writ
petition under Article 226 of the Constitution. The Rules further provide for a hearing before
the Committee set up - which Committee then looks into whether or not it is necessary to
block such information. It is only when the Committee finds that there is such a necessity
that a blocking order is made. It is also clear from an examination of Rule 8 that it is not
merely the intermediary who may be heard. If the “person” i.e. the originator is identified he
is also to be heard before a blocking order is passed. Above all, it is only after these
procedural safeguards are met that blocking orders are made and in case there is a certified
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copy of a court order, only then can such blocking order also be made. It is only an
intermediary who finally fails to comply with the directions issued who is punishable under
sub-section (3) of Section 69A. Merely because certain additional safeguards are not
available does not make the Rules constitutionally infirm.
Section 79 belongs to Chapter XII of the Act in which intermediaries are exempt from
liability if they fulfill the conditions of the Section. It must first be appreciated that Section
79 is an exemption provision. Being an exemption provision, it is closely related to
provisions which provide for offences including Section 69A. Section 79(3)(b) has to be read
down to mean that the intermediary upon receiving actual knowledge that a court order has
been passed asking it to expeditiously remove or disable access to certain material must then
fail to expeditiously remove or disable access to that material. This is for the reason that
otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when
millions of requests are made and the intermediary is then to judge as to which of such
requests are legitimate and which are not. In other countries worldwide this view has gained
acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by
the appropriate Government or its agency must strictly conform to the subject matters laid
down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously
cannot form any part of Section 79. With these two caveats, the Counsel requests the Court
to refrain from striking down Section 79(3) (b). It is a common practice worldwide for
intermediaries to have user agreements containing what is stated in Rule 3(2). However, Rule
3(4) needs to be read down in the same manner as Section 79(3)(b). The knowledge spoken
of in the said sub-rule must only be through the medium of a court order.
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PRAYER FOR RELIEF
Wherefore, in light of the facts stated, arguments advanced and authorities cited, the
Respondent, humbly prays before the Hon’ble Supreme Court, that:
1. To declare that the Sec. 66A of IT Act, 2000 is not in contravention with Art.
19(1)(a) and 19(2) of the Constitution of India, 1950.
2. To adjudge and declare that the reasonable restrictions can be relaxed as the subject
medium of the legislation in question differs from other media of communication
3. That the provisions contained in Sections 69(A) and 79 of the Information
technology Act, 2000 are constitutionally valid.
The Court may also be pleased to pass any other order, which the Court may deem fit in light
of justice equity and good conscience.
All of which is most humbly prayed.
24th AUGUST 2015 COUNSEL ON BEHALF OF RESPONDENT
NEW DELHI HEMANT VERMA
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Summary of Argument
Section 66A of Information Technology,2000
“ Punishment for sending offensive messages through communication service, etc. Any
person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill
will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
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messages, shall be punishable with imprisonment for a term which may extend to three years
and with fine.
Section 69A of Information Technology Act,2000
“ Power to issue directions for blocking for public access of any information through any
computer resource.—
(1) Where the Central Government or any of its officers specially authorised by it in this
behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and
integrity of India, defence of India, security of the State, friendly relations with foreign States
or public order or for preventing incitement to the commission of any cognizable offence
relating to above, it may subject to the provisions of sub-section (2), for reasons to be
recorded in writing, by order, direct any agency of the Government or intermediary to block
for access by the public or cause to be blocked for access by the public any information
generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public
may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall
be punished with an imprisonment for a term which may extend to seven years and shall also
be liable to fine.”
Article 19(2) of Constitution of India
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