By Shreya Govil

Abstract

This article is a case commentary on the Shreya Singhal V. Union Of India case. It focuses on the right to privacy aspect of the judgment and its groundbreaking contribution to the furtherance of fundamental rights. The article focuses on the need for the laws to be clear and not ambiguous while also highlighting the importance of reasonable classification while making laws.

The Shreya Singhal case explores the validity of Section 66A, Section 79, Section 69 A of the Information Technology Act 2000, and section 118(d) of the Kerela Police Act. These sections were considered be ambiguous, and vague, and seen as a way to curb freedom of speech and expression. This article explores and analysis an argument put forth by the Additional Solicitor General, Tushar Mehta. Who argued that “vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary.” Through this article, we explore this argument and aim to identify counterarguments to the same. This article is divided into 4 sections- Facts, Rationale, and judgment, analysis, and conclusion.

Facts

Mumbai Police, in 2012, arrested two girls. Who had posted harsh comments on Facebook against the Bandh which was announced following the death of Shiv Sena founder Bal Thakeray? The girls were later released their arrest was widely criticized. The police had exploited section 66A of the Information and Technology (IT) Act. Which punished people for sending obnoxious messages through the internet. And was seen as an infringement upon the fundamental rights enshrined under Article 19(1)(a) which was the right to freedom and expression. The offenses under this act came under the purview of cognizable offenses which allowed the police to make arrests without a warrant. Which created a chilling effect amongst the people as it allowed the police to arrest anyone who had a dissenting opinion.

Post-2013, the government made some changes to the Act, and now the permission of a senior officer was needed to make arrests. But the Act was still problematic as what an offense was still not defined in the act and there was a lot of ambiguity overall. Thus it led to a number of petitions being filed in the Honourable Supreme Court which were clubbed together and the case came to be known as Shreya Singhal V. Union of India.

Rationale and Judgement

There were a number of arguments put forth by both sides, which resulted in the following judgement –

The court ruled that section 66A IT act should be struck down as it violates Article 19(1)(a) of the Indian constitution. Section 69A was upheld as constitutionally valid. Section 79 was upheld and section 118(d) was struck down as it violated article 19(1)(a) of the Indian constitution.

The rationale behind the judgment was that the court said the provisions of the sections are too vague and what is an offense and what is not an offense is not clearly defined. The differentiation between the internet and other forms of media is also not reasonable which made certain sections of the Act ineffective.

Analyses

The Additional Solicitor General of India, Mr. Tushar Mehta, had an interesting argument in favor of the validity of the section. He argued that vagueness alone cannot be a ground to declare a law unconstitutional if the law is legislatively competent and non-arbitrary. His points in favor of this argument are- The reason for the loose language of section 66A is to ensure that people using new methods to cause disturbance can also be brought under this section. And the mere possibility that the law may be abused due to its ambiguity cannot be a ground to declare a law unconstitutional. He further argued that the legislature is in the best position to make such laws as they understand the needs of the people.

The argument that vagueness alone is not enough to prove if a law is unconstitutional was explored in a number of cases. One of them being the State of Karnataka vs. Appa Balu Ingale and Ors.[6] In this case, it was highlighted that the word ‘Untouchability’ is not defined. The reason for this is that any act committed against Dalits can be included in this definition. So a broad and vague definition with a large scope helps in ensuring that. Even in the Municipal Committee of Amritsar V. State of Rajasthan case, it was held by the division bench that an Indian Act cannot be declared invalid on the ground that it violates due process of the law or is vague.

If Section 66A is studied to understand its vagueness, it needs to be studied using the doctrine of vagueness. The vagueness doctrine initially had two independent elements which eventually developed into two tests-

The overly broad test

This test applies to laws that are ill-defined and punish an overly broad amount of conduct. In order to satisfy this test, firstly, the challenger must prove that the law criminalizes a significant portion of innocent conduct. Once this is proved then they have to prove that the law can be applied in a discriminatory manner. Such statutes usually encourage arbitrary and erratic arrests and convictions.

The Hard-Core Violator Test

This test says that as long as the law clearly defines what type of conduct is forbidden it need not give fair notice to every applicant. This test needs to be applied in two steps. The party challenging the law needs to prove that the law does not specify which acts would be considered offensive. If the first step is proven to be true then the state has to prove that there are certainly other scenarios where there was no such ambiguity of what would be considered an offense.

Now if we apply these tests to the given situation- On applying the overly broad test we can see that in this case if one looks at the definition of the word “information” it is very broad and casts a very wide net by being all-encompassing. It does not specify what kind of content or the information the definition refer to. Which may trap and lead to the arrest of innocent people, which is what did happen in the Shreya Singhal case. Now while applying the Hard-core Violator Test as mentioned in the case an innocent person without any knowledge may commit an offense as even, they are not aware of what exactly would be considered offensive.

But as we continue to analyze the Additional Solicitor General’s argument, other than proving vagueness. One should also explore the legislative competence and arbitrariness of the law.

Now in this piece we would explore and understand if proving vagueness alone is enough to prove Section 66A unconstitutional. So first we would see if the law made by the legislation is competent or not. In this case, there were a number of sections that were struck down, like section 118(d) of the Kerela Police Act. In this, the sections being under the Kerela Police Act would fall within List 1 of entry 31 and outside entries 1 and 2 of list 2. But it is important to note here that Section 118 of the Kerela Police Act falls within Entry 1 of list 2. So, now as the law goes beyond its ascertained limit and the powers of the legislature, it is necessary to ascertain the true character of the legislature.

For this, we rely on the ‘Pith and Substance test’. This test is applied when the legislative competency of the legislature is challenged in relation to the entries in different lists. When the subject on one list within the competence of legislation also touches the subjects in another list it is important to determine the true character and nature of the legislation. Now if we look at look the basic essence behind the law, it was to penalize those who caused annoyance. Now the seventh schedule under article 246, would fall within Entry 1 List 3 and would be within the competence of the state legislature. It is also important to know that the IT Act is enumerated under lists 2 and 3 of schedule 7 of the constitution. But even if there is legislative competence it is crucial to recognize that the act suffers from vagueness. It is important to also note that in the Bennet Coleman case it was held that the “Pith and Substance test” is irrelevant where there is a violation of fundamental rights. This is true in the given case as mentioned in the judgment above.

In Additional General’s argument, the last point focused on the arbitrariness of the law. There are different tests to recognize arbitrariness in a law. Article 14 of the Indian Constitution says that all people within the territory of India should not be denied equality before the law and equal protection of the laws. But sometimes the government does make some classifications according to the needs of the people and the law. But these classifications are valid only if they are reasonable and non-arbitrary. The person who claims that the classification is arbitrary, must prove that he is being treated differently from people who are in similar circumstances as he is and there is no reasonable ground to do so. Usually, there is a presumption of constitutionality while making such classifications but if the reasons for the classification are undisclosed and certain individuals are being subject to discriminatory legislation then the presumption of constitutionality would not be carried.

There are two tests of reasonable classification-

Intelligible Differentia: The classification should be done on reasonable ground.

Rational Nexus: Where there must be a reasonable relationship between the object of the classification and the statute in question. The classification must be lawful.

So when laws are based on classification which is either without a difference or the basis of classification is irrelevant to the act it is considered to be violative of Article 14. In such a situation the classification would be considered arbitrary. An example of this is the Suraj Mohta V. Vishwanath Sastri case where people were segregated on basis of their properties on unreasonable grounds. Anwar Ali Sarkar case is another where through the test of Intelligible differentia it could be analyzed that the government was classifying offenses without any guidelines and the classification was unreasonable.

So now if the current case is analyzed in light of the above-mentioned information the law differentiates and classifies between the internet and other forms of media. This differentiation is treating offenses applied to free speech differently in comparison to other forms of media. The aim of intelligible differentia is to ensure that the object, which in this case is to public order is maintained, should be fulfilled. But in this case, the segregation to achieve that is arbitrary as mentioned in Sastri’s case people who are committing a similar offense are being treated very differently. This makes the classification unreasonable, as people using other forms of media know what would be considered an offense while people using the internet have no idea what would be considered an offense. So, some provisions of the act can be considered to be manifestly arbitrary.

The arguments mentioned above can be considered to be a possible response or counterargument to the arguments put forward by the additional solicitor General.  

Conclusion

Freedom of speech and expression is an important right which is granted to all. Statutes that are ambiguous and dependent on the discretion of the police and the state can be very harmful. They can be used as very effective tools to weed out dissenting arguments and has a chilling impact on people’s rights. It is very important that whenever any law is made or implemented they are made to go through the above-mentioned tests, to make them less arbitrary. Through this article, we tried to explore another set of possible arguments that could have been made to contain the unconstitutional statute.

About the Author

Shreya Govil is a student of the B.A. LL.B 2020-2025 batch of Jindal Global Law School. Their areas of interest are constitutional law, gender studies and Human rights law.