The Right to speech and expression are qualified fundamental rights. The government has been using this to justify various restrictions of speech and expression, even on digital media platform.

The “Shreya Singhal vs. Union of India” case

• A PIL was filed by Ms Singhal against the provisions of Section 66A of Information Technology Act, 2000.
• The argument was that provisions were against the right of speech and expression specified under the constitution.

Section 66A of IT Act, 2000

• The law prevents individuals to post ‘offensive’ and ‘maligning’ posts on digital medium using phones, computer or any other digital device.
• The investigative officer was to decide if the concerned posts were offensive or maligning. If proved guilty, they could be imprisoned up to 3 years.

Concerns in Section 66A of IT Act, 2000

• Lack of exact definition - There was no clear definition on what qualified as offensive, as the definition was wide and open to interpretation by different parties.
• Restrictions on free speech - The fear of charges was acting as a way of restriction on free speech of an individual. Use of criticism against the state or elected representatives could be considered as offence.

The Supreme Court observations

• The court observed that the law violated Article 19 (1) (A) and Article 19 (2) of the constitution.
• The court expressed concerns over potential misuse of the law against dissenting individuals.
• The court said that the law was unconstitutional and ordered state to scrap Section 66A of the law all together.

Thus, the Shreya Singhal case has managed to remove restrictions on criticism of state on digital platforms. It has restored rights of expression and free speech to some extent.

Additional Info

U.S. And Indian Freedom of Speech and Expression

In the case of Whitney v. California, Justice Brandeis has rightly affirmed that “Liberty should be treated as a means as well as an end and to justify suppression of free speech there should be a reasonable explanation to fear that serious evil will result if such free speech is practiced.” Taking into deliberation the view of Justice Brandeis, the Apex Court of United States has thoroughly discussed in its judicial recourse as to whether the judicial pronouncements of U.S. Courts are taken into consideration while interpreting the scope of Article 19 of the U.S. Constitution. Henceforth, the Supreme Court made three necessary distinctions:

1. Firstly, the 1stamendment of United States is absolute and congress has no authority to make any law which curtails the fundamental right of free speech and expression provided under Article 19 of the U.S. Constitution.
2. Secondly, the 1stamendment of U.S. provides an essential liberty to speech for media houses and doesn’t make any reference to ‘expression’ in it, whereas Article 19(1) (a) of the Indian Constitution doesn’t explicitly include freedom of speech for media houses.
3. Thirdly, according to U.S. law, the freedom of speech will be curtailed if it is found to be indecent, defamatory and vulgar, whereas under Indian law, such a right can only be curtailed if it doesn’t falls under the eight elements prescribed under Article 19(2)of the Indian Constitution. 

Hence, the only distinction between the U.S. and India’s liberty to speech and expression is that in U.S., there is undeniable prerequisite to attain an essential sovereign policy or it should pass the muster test, but in India, the liberty to speech and expression will be curtailed only if it doesn’t satisfy the eight conditions penned down under Article 19(2) of the Indian Constitution.