October 25, 2022

The Editorial Board

Sir/Maam

I am writing to submit my case comment on Shreya Singhal v UOI. I am currently recruited as an intern for the
month of October and am currently studying at the Rajiv Gandhi National University of Law as a first-semester
student for the course B.A. LLB.

I would like to thank ‘Tasveer Project’ for this amazing opportunity. I can be reached via email at
[email protected] or by phone at +91 7011033640 . Looking forward to hearing from you.

Thank you for your time and consideration.

Sincerely,

Manushree Tyagi
 INTRODUCTION

The Information Technology Act, of 2000, which includes provisions enabling for the arrest of anyone sharing
allegedly offensive content online or on social media, was declared unlawful by the Supreme Court, upholding
freedom of speech. If found guilty under Section 66A, the maximum punishment for sending "offensive"
messages by computer, phone, tablet, or other communication device is three years in prison and a fine.

The Apex Court accomplished its duty as a constitutional court for Indians by dismissing Section 66A in the
Shreya Singhal case, restoring the nation's commitment to free expression. Unexpectedly, the Court's free
speech jurisprudence has gained a lot of clarity. It is false to say that Section 66A has given rise to new types of
offenses because all of these offenses are covered under provisions 66B and 67C of the Information
Technology Act as well as specific sections of the Indian Penal Code.

The landmark Shreya Singhal v. Union of India (2015) case had a profound influence on India's judicial system.
Section 66A of the Information Technology Act of 2000 was repealed in response to the litigation, which
focuses on the basic right to freedom of speech and expression protected by Article 19(1)(a) of the Indian
Constitution. Section 66A specifies the punishment for sending inflammatory statements via communication
services, etc.
 BRIEF FACTS

Two women are being detained by the police after they are suspected of making derogatory comments
regarding whether it was proper to close Mumbai after a prominent politician passed away on Facebook. Police
conducted the arrests in accordance with Section 66A of the Content Technology Act of 2000, which imposes
penalties on anybody found guilty of disseminating anything that is gravely offensive or that was procured
illegally with the intent to agitate, endanger, threaten, offend, or sow division.

The charges against the women were subsequently dropped, and the police released them, but the incident
nonetheless gained a lot of media coverage. Later, the women filed a petition, claiming that Section 66A
violates the constitution because it restricts their right to free expression.

A provisional remedy prohibiting any arrest undertaken in line with Section 66A without prior approval from
top police officials was first imposed in this case by the Indian Apex Court. The constitutionality of the
provision in the current case was debated by the Supreme Court.

The following are the main problems with this scenario:

2. Whether or not the Rules and Section 69A are unlawful.

3. Application of Section 79(3) and the 2011 Information Technology “Intermediary Guidelines” Rules
(b).
 JUDGEMENT

The design of our constitution prohibits the state from restricting free speech in order to further the interests of
the general public. If a law violates public order as described in section 19 of the Constitution, it is void and
unconstitutional (2). Both public safety and tranquility require a state of general order. That phrase must be
removed because it lacks appropriate criteria for determining guilt and provides no clear guidance to
authorities, judges, or law-abiding individuals, making it arbitrary and unfair. It is clear that section 66A's
language is utterly vague, open-ended, and undefinable. A probable violation of Section 66A or the agencies in
the responsibility of enforcing Section 66A cannot be prosecuted using any reasonable criteria. The equilibrium
between the right to free expression and any potential constraints on it is disrupted by Section 66A's excessively
onerous, absurd, and meaningless prohibitions. The Section should be disregarded because it covers both
protected speech and communications with innocent origins and the potential to be used in a way that would
stifle free speech. This is because the Section is too broad. The Section is illegal simply because of this.

Online speech differs from traditional types of communication, for which new crimes may be made, in that it is
not subject to censorship. Because of this, Section 66A is not regarded as discriminatory under Article 14. Since
it contradicts Article 19(1)(a) and isn't covered by Article 19, Section 66A of the Information Technology Act
of 2000 is deemed unlawful in its entirety (2).

The specific wording of Section 69A provides a number of precautions. Furthermore, the limitations don't in
any way go against the constitution. The absence of legal protection for certain rights, such as those specified in
sections 95 and 96 of the Code of Criminal Procedure (CrPC), does not make them illegal. It is acceptable to
employ Section 69A and the 2009 Information Technology (Procedure & Safeguards for Blocking for Access
to Information by Public) Rules.

Section 79 continues to be in force up until 79(3)(b) is read down. If an intermediary does not immediately
deactivate or delete access to the content after being informed that crimes covered by Article 19(2) will be
committed or after receiving this information from a court order, the relevant government, or one of its
agencies, they are in violation of Section 79 of the law. As long as Rule 3 sub-rule (4) is in effect, the 2011
Information Technology "Intermediary Guidelines" Rules, which are comparable to the decision, are still in
effect.
 JUDICIAL PRONOUNCEMENT

The Supreme Court's division bench has protected the right of the general public to freedom of speech and
expression and prevented public officials from abusing their positions of authority in line with Article 19(1)(a)
of the Indian Constitution. It has also provided the legislature with clear guidelines for creating legislation that
defends the right to free speech and expression as well as certain necessary restrictions. However, it should be
noted that the Apex Court did not emphasize in its decision that every viewer has a democratic right to be
informed of the justifications for any limitations imposed on their capacity to access certain information in the
digital environment.

The tough, risky, and complicated state procedure was employed by the Indian Supreme Court to assess the
parties' qualifications. For instance, the 2009 regulations were implemented with the assumption that an
intermediary would prohibit the executive body from deleting the online content and that first, website blocking
laws would provide the suspected offender a legitimate opportunity to be contacted and informed. These
findings are terribly flawed and pointless.

Because of their worldwide reach and anonymity, online crimes usually get worse. It provides a false layer of
protection for the author of the material, making it very unlikely that they would be found. The intermediaries
will never spend money on paying someone to safeguard the content of third parties and will also avoid from
becoming involved in any disputes. Therefore, a larger audience will still have access to internet information on
a worldwide scale despite the administrative authorities' assertion that it should be restricted.

Blocking must be done covertly in accordance with Rule 16 of the Information Technology (Procedures and
Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009. It stipulates that the
blocking order's confidentiality must be upheld while issuing such an order. Despite the fact that this standard
was upheld in the Shreya Singhal case, the Supreme Court did not include it in its decision. Thus, in accordance
with the principle of transparency, a notice detailing official instructions restricting the targeted content should
be included on the hosting page. This would encourage clarity in the digital space and notify content creators
and users of any content that has been ordered to be removed by the executive authority.