Author: Jay Kumar Gupta, I year of B.B.A.,LL.B.(Hons.) from NMIMS School of Law, Bengaluru
INTRODUCTION
The judicial review[i] of section 66A of the IT Act 2000[ii] is the subject of this lawsuit. In plain terms, judicial review is the power granted to the Supreme Court and High Courts to examine the legality of any law enacted by the legislature. And if the law is found to be breaking the constitution's basic structure during the review, the court can strike down the law or any specific section of the law that is ambiguous, vague, or violates the constitution's basic structure by using the judicial review power[iii].Article 13 of the Indian Constitution[iv] specifically mentions the power of judicial review.[v]Article 141 of the Indian constitution[vi], which deals with the enforceability of supreme court judgements, reflects the concept of judicial review.[vii] It states that the Supreme Court of India's judgments are binding and enforceable in the courts that are subordinate to the it. This case might also question over separation of powers. The separation of powers principle asserts that the three branches of government (legislature, executive, and judiciary) will operate with checks and balances.[viii] Judicial review gives the judiciary an advantage over the legislature. In India, there is no idea of parliamentary review, in which the legislature can review judicial decisions. Reviewing, criticising, and overturning laws enacted by the legislature could be an infraction of the division of powers principle.
FACTS
The Information Technology Act of 2000[ix] (also known as the "IT Act") came into operation in the year 2000.The legislature voted in 2009 to include "Cyber Crimes" in the IT Act. As a result, a legislative amendment was approved to address the issue. The Information Technology Act’s Section 66A, allows police to make arrests based on their own personal judgement of whether anything is "offensive" or "menacing."[x]
In this case, two women were arrested over a Facebook post in which they questioned the propriety of shutting down Mumbai City for the burial of a deceased politician. The arrest was made under Section 66A of the IT Act, citing the inflammatory and disagreeable nature of the posts.[xi]
Despite the fact that the police ultimately released them and dropped all charges against them, it became a topic of discussion, with many news outlets reporting the story and numerous conversations taking place. In the meantime, Shreya Singhal has filed a challenge in the Supreme Court, contesting the constitutional legality and functionality of Section 66A of the IT Act, claiming that it breaches Article 19(1)(a)[xii] of the Indian Constitution, which guarantees freedom of expression[xiii].
ISSUES
The question in this case was whether Section 66A of the IT Act is constitutionally valid or whether it breaches Article 19(1)(a) of the Indian Constitution, which guarantees freedom of expression.
These are the points on which petitioner had challenged the section 66A of the IT Act:
It violates the fundamental right of freedom of speech and expression. Moreover, none of the eight subjects are secured by the article 19(2)[xiv].This section in creating an offence suffers from the vice of vagueness because of which the innocent persons are roped in as offenders.[xv]The execution of the previously mentioned portion would be a unobtrusive kind of censorship, undermining an essential esteem revered in Article 19(1)(a)[xvi]. Inasmuch as there's no perceivable distinction between those who utilize the web and those who utilize their strategies of communication through words talked or composed, the said arrangement encroaches on the rights of people beneath Articles 14[xvii] and 21[xviii] of the Indian Constitutions[xix].
ARGUMENTS
ARGUMENTS GIVEN BY PETITIONER
Section 66A of the Information Technology Act violates article 19(1)a of the Indian Constitution, which states that freedom of expression is a fundamental right. This part is very vague and vulnerable because the section's boundary isn't established, and the numerous terminologies employed there, aren't defined clearly.[xx] It grants law enforcement agents complete discretion in interpreting these laws based on their own personal interpretations and assessments. This section does not define limitation. The petitioner also stated that these laws are arbitrary, subjective and nebulous. It can be used by various governments for their own self-interests by limiting people's ability to object to government policies and raise their voices, which is in violation of Article 21 of the Indian Constitution, which protects life and personal liberty. The petitioner further claimed that this provision lacks "intelligible differentia" or "difference capable of being understood," as required by Article 14 of the Indian Constitution. Different people will understand this regulation differently. As a result, this also breaches article 14[xxi].
ARGUMENTS GIVEN BY RESPONDENTS
Respondents objected the maintainability of the writ petition filed by the petitioner in this matter. The legal borders of the legislative and the judiciary were a point of contention among respondents.[xxii] They said that the legislature's job is to answer the people's wishes, and that the court can only intervene if part III of the Indian constitution is violated. Part III of the Indian Constitution contains articles 12 to 35 that deal with people' basic fundamental rights. They claimed that the entire writ petition was politically motivated and could not be sustained. They questioned the petitioner's reasoning, in which she protested to the section's vagueness. Respondent argued that while the statute was arbitrary in character, this should never be used to declare it unconditionally null and void. They said that the entire argument of the petitioner is based on the assumption that this part may violate citizens' fundamental rights. They went on to say that these presumptions should not be used as a basis for declaring a legislation unconstitutional[xxiii].
JUDGEMENTS
What may be objectionable to one person may not be objectionable to another, according to the court. The court went on to say that even if various legal/judicial minds have different opinions and conclusions on the same information, how can law enforcement agencies decide which should be considered objectionable and which should not? The petitioner's argument about the vagueness of terms like "annoying," "inconvenient," and "grossly insulting" used in section 66A was accepted by the court. The court acknowledged that defining the law's boundaries and elements is difficult.[xxiv] Finally, the Court concurred with the notion that it violates Indian constitution's article 19(a)1, which deals with freedom of expression and free speech. As a result, the Court declared section 66 A of the IT Act, 2000 "unconstitutional" and a breach of free speech and expression.[xxv]
POSITIVES OF THE JUDGEMENT
The legislature will be more careful about ambiguity when framing new laws.Ambiguity and vagueness in the law will be reduced.Law will be in accordance with the basic structure of the constitution.The respect and reverence of the judiciary have increased in the eyes of the common people.People willsee judiciary as the guardian of their fundamental rights.It establishes the rule of law.Nothing can be done in arbitrariness.Law is the supreme.It gives new light to the freedom of speech and expression.People can now fearlessly can object the policies of the government through any medium it seems fit to them without any fear of prosecution by the government.
NEGATIVES OF THE JUDGEMENT
Some argue that this decision goes against the notion of separation of powers, which states that the three wings of governance must act independently with checks and balances in order to function properly. It may be undemocratic to overturn a law passed by a majority vote in parliament.Parliamentarians are chosen through a fair electoral system.As a result, the laws enacted by the legislature represent the support and faith of the people from whom they are elected.As a result, striking down the entire legislation or a specific section of the law through judicial review may be contrary to the general will of the people for whom the law was enacted.
CONCLUSION
It's not as if the entire section 66A was repealed. Only those provisions are struck down that, according to the honourable court, violate article 19(1)(a) and are not protected under article 19(2). While the provision dealing with the barring of public access to information, as well as section 79, was found to be constitutional and legal. The nature of Section 66A was ambiguous, and the terms utilised there were similarly open to interpretations. Court found there was no link of it with causing any sort of disturbance or any kind of incitement of violence, hence they struck it down. The court stated that no one can take away citizens' fundamental rights under such circumstances, and that this clause did not comply with Article 19 of the Constitution (2). As a result, it is unconstitutional.
[i] Lavanya Kaushik, INDIA: The place of Judicial Review in Indian Constitution and its history, mondaq (last visited : Feb 21,2022) https://www.mondaq.com/india/constitutional-administrative-law/973460/the-place-of-judicial-review39-in-indian-constitution-its-history- [ii] The Information Technology Act,2000, No. 21, Acts of Parliament (India) [iii] Supra Note 1 [iv] The Constitution of India,1950, Art. 13 [v] Pawan Choudhary, Judicial Activism, LexLife India (Last visited : Feb 21,2022) https://lexlife.in/2021/08/02/judicial-activism/#:~:text=The%20power%20of%20judicial%20review%20has%20been%20expressly%20mentioned%20in,rights%E2%80%9D%20guaranteed%20by%20the%20Constitution. [vi]The Constitution of India,1950, Art. 141 [vii] G Shashank Rao, Constitutional Law: Doctrine of Judicial Review, LexLife India (Last visited: Feb 21,2022) https://lexlife.in/2020/05/10/constitutional-law-doctrine-of-judicial-review/#:~:text=The%20Concept%20of%20Judicial%20Review,of%20the%20Constitution%20in%20India.&text=If%20any%20legislative%20act%20%2F%20executive,unconstitutional%20during%20the%20judicial%20review. [viii] The Editors of Encyclopaedia Britannica, separation of powers, Britannica (Last visited: Feb 21,2022) https://www.britannica.com/topic/separation-of-powers [ix] Supra Note 2 [x] Rukhman Singh, Shreya Singhal vs. U.O.I., Legal Service India (Last visited: Feb. 6,2022) http://www.legalservicesindia.com/article/2473/Shreya-Singhal-v-U.O.I.html [xi] ibid [xii] The Constitution of India,1950, Art. 19, cl.1(a). [xiii] Supra Note 10 [xiv] The Constitution of India,1950, Art. 19, cl.2 [xv] Shreya Singhal vs. Union of India, Global Freedom of expression Columbia University(Last visited: Feb.6,2022) https://globalfreedomofexpression.columbia.edu/cases/shreya-singhal-v-union-of-india/#:~:text=Case%20Analysis&text=The%20Court%20agreed%20that%20the,right%20to%20freedom%20of%20expression. [xvi] Supra Note 12 [xvii] The Indian Constitution,1950, Art. 14 [xviii]The Indian Constitution,1950, Art. 21 [xix] Supra Note 15 [xx] Vaibhav Suppal, Shreya Singhal V. Union Of India: A Case Which Rejuvenated The Liberty To Speech And Expression In The Country, ipleaders (Last visited: Feb. 21,2022) https://blog.ipleaders.in/shreya-singhal-v-union-india-case-rejuvenated-liberty-speech-expression-country/ [xxi] ibid [xxii] Ibid [xxiii] ibid [xxiv] ibid [xxv] ibid