CHANAKYA NATIONAL LAW

UNIVERSITY

SHREYA SINGHAL V. UNION OF INDIA: A

CRITIQUE
Cyber Law

Submitted to:
Submitted by:
Mr. Kumar Gaurav
Khamparia

Aditya

(Faculty, Cyber Law)

Roll no. 708
9th Semester

CONTENTS
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ACKNOWLEDGEMENT....................................................................3
RESEARCH METHODOLOGY............................................................4
INTRODUCTION............................................................................. 5
FREE SPEECH VS. UNREASONABLE GOVERNMENTAL INTERFERENCE. 6
TEST OF DANGER.......................................................................6
SHREYA SINGHAL JUDGMENT: A CRITICAL REVIEW...........................9
SECTION 79...............................................................................9
SECTION 69A............................................................................ 12
REPERCUSSIONS ON INTERMEDIARY LIABILITY IN INDIA.................12
SUBJECTIVE DETERMINATION OF KNOWLEDGE............................14
PROCEDURAL SAFEGUARDS......................................................15
ACCOUNTABILITY......................................................................16
TRANSPARENCY........................................................................16
CONCLUSION..............................................................................17
BIBLIOGRAPHY............................................................................ 19

ACKNOWLEDGEMENT
Any project completed or done in isolation is unthinkable. This project, although prepared by
me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor for
Cyber Law, Mr. Kumar Gaurav for his valuable suggestions towards the making of this project.
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Further to that, I would also like to express my gratitude towards our seniors who were a lot of
help for the completion of this project. The contributions made by my classmates and friends are,
definitely, worth mentioning.
I would like to express my gratitude towards the library staff for their help also. I would also like
to thank the persons interviewed by me without whose support this project would not have been
completed.
Last, but far from the least, I would express my gratitude towards the Almighty for obvious
reasons.
Aditya Khamparia

RESEARCH METHODOLOGY

Method of Research

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The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the available resources at library of the Chanakya National Law University and
also the internet sources.

Aims and Objectives

The aim of the project is to present an overview of various aspects of governmental interference
in regulation of cyber space and invasion of privacy and providing a critique of Shreya Singhal
Judgment.
Scope and Limitations
Though the current topic is an immense project and pages can be written over the topic but due
to certain restrictions and limitations the researcher has not been able to deal with the topic in
great detail.

Sources of Data:

The following sources of data have been primarily used in the project-

Books

Journals

Cases

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation

The researcher has followed the bluebook method of citation (19th ed.) throughout the course of
this research paper. The author has followed the foot note system for citation.

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INTRODUCTION
By quashing Section 66A of the IT Act as unconstitutional, the Supreme Court judgment shows
us that with the right kind of conviction, it is possible to uncover the importance of free speech
as a value unto itself within our larger constitutional scheme. It must allow us to believe that we
can now challenge the noxious culture of censorship that pervades the Indian state
The Supreme Court, in Shreya Singhal versus Union of India 1, has stepped to the fore with a
delightful affirmation of the value of free speech and expression, quashing, as unconstitutional,
Section 66A of the Information Technology Act, 2000 (IT Act). Section 66A had attained
particular infamy after the arrests by the Mumbai police in November 2012 of two women who
had expressed their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackerays
death. Since then, several arrests have been made by different State police, of various
individuals, for the most benign dissemination of online content.
The latest in the slew of pernicious cases reportedly booked under Section 66A was the arrest of
a class 11 student in Uttar Pradesh for posting, on Facebook, objectionable comments
apparently attributable to a State Minister. These arrests, aimed at checking even the most
harmless cases of contrarianism and dissent, were made possible mostly by the sweeping content
of the law. 2The provision, as is by now well documented, had criminalised the broadcasting of
any information through a computer resource or a communication device, which was grossly
offensive or menacing in character, or which, among other things, as much as caused
annoyance, inconvenience, or obstruction. In a judgment authored by Justice R.F.
Nariman, on behalf of a bench comprising himself and Justice J. Chelameswar, the Court has
now declared that Section 66A is not only vague and arbitrary, but that it also disproportionately
invades the right of free speech.3

1 Writ Petition (Criminal) 167/2012

2 Ibid. p. 41
3 Ibid. p. 46
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FREE SPEECH VS. UNREASONABLE GOVERNMENTAL INTERFERENCE

Article 19(1)(a) of the Constitution guarantees to citizens a right to freedom of speech and
expression. The immediately succeeding clause, Article 19(2), however limits this right in
allowing the state the power to impose by law reasonable restrictions in the interests, among
other things, of the sovereignty and integrity of India, the security of the state, public order,
decency or morality, defamation, or incitement to an offence. According to the petitioners in
Shreya Singhal, none of these grounds contained in Article 19(2) were capable of being invoked
as legitimate defences to the validity of Section 66A of the IT Act. They also argued that the
provisions of Section 66A were contrary to basic tenets of a valid criminal law in that they were
too vague and incapable of precise definition, amounting therefore to a most insidious form of
censorship. Further, in the petitioners argument, Section 66A produced a chilling effect that
forced people to expurgate their speech and expressions of any form of dissent, howsoever
innocuous.4
The Supreme Court agreed with the petitioners on each of these arguments. According to the
court, none of the grounds, which the state sought to invoke in defending the law, in this case,
public order, defamation, incitement to an offence and decency or morality, each of which is
contained in Article 19(2), was capable of being justifiably applied. Any law seeking to impose
a restriction on the freedom of speech can only pass muster, wrote Justice Nariman, if it is
proximately related to any of the eight subject matters set out in Article 19(2).5

TEST

OF DANGER

Crucially, in rejecting the states defence, the court expounded the conditions under which these
restrictions could be imposed. For instance, if speech were to be limited on grounds of public
order, the law placing such a constraint, the court ruled, has to satisfy a test of clear and present

4 Sunil Abraham (2012): The Five Monkeys and Ice Cold Water, Centre for Internet and
Society, 26 September, visited on 3 April 2015, http://www-deccan-chronicle-/sep-16-2012sunil-abraham-the-five-monkeys-and-ice-cold-water/
5 Ibid.
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danger.6 That is any information that is disseminated must contain a tendency to imminently
incite or create public disorder, and the information disseminated must be proximately linked to
such disorder, for the speech to be restricted. An analogous analysis has been consistently
applied by courts in the United States, and, as Justice Nariman points out, American judgments
on free speech laws ought to carry great persuasive value, in India, since, as a matter of
interpretation, the American and Indian Constitution are not as dissimilar on the guarantee of free
speech rights, as is popularly believed.7
On the purported justification offered by the state on grounds of defamation, incitement to an
offence, and decency or morality, under Article 19(2), the Supreme Court, in Shreya Singhal, is
pithily dismissive. There is, the court points out, no nexus whatsoever between the
criminalisation of grossly offensive or annoying speech and the restrictions that are
permitted under the Constitution, as is rather self evident.
Apart from rejecting the states defences under Article 19(2), the court also holds Section 66A
unconstitutional for its lack of exactness. It is obvious that expressions such as grossly
offensive or menacing are so vague, writes Justice Nariman that there is no manageable
standard by which a person can be said to have committed an offence or not to have committed
an offence. Whats more, according to the court, Section 66A also has the destructive effect of
producing a chilling effect on speech in that it tends to not merely impede speech, which is
potentially undemocratic, but also innocent communication. Justice Nariman gives us a few
examples: A certain section of a particular community may be grossly offended or annoyed by
communications over the internet by liberal views such as the emancipation of women or the
abolition of the caste system or whether certain members of a non proselytizing religion should
be allowed to bring persons within their fold who are otherwise outside the fold. Each one of
these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large
sections of particular communities and would fall within the net cast by Section 66A, he writes.
Therefore, the provision, in the courts belief, was simply indefensible; it contained no

6 Supra Note 1
7 Ibid.
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immediate nexus with any of the constitutionally sanctioned exceptions to the right to free
expression.8
Section 66A of the IT Act was introduced in a hastily-passed amendment. Unfortunately, the
language used in this section was a pastiche of outdated foreign laws such as the UK
Communications Act of 2003, Malicious Communications Act of 1988 and the US
Telecommunications Act, 19969. Since the amendment, this section has been misused to make
public examples out of innocent, yet uncomfortable speech, in order to socially engineer all
Indian netizens into self-censorship10. The Court struck down Section 66A of the IT Act in its
entirety holding that it was not saved by Article 19(2) of the Constitution on account of the
expressions used in the section, such as annoying, grossly offensive, menacing,, causing
annoyance. The Court justified this by going through the reasonable restrictions that it
considered relevant to the arguments and testing them against S66A. Apart from not falling
within any of the categories for which speech may be restricted, S66A was struck down on the
grounds of vagueness, over-breadth and chilling effect. The Court considered whether some parts
of the section could be saved, and then concluded that no part of S66A was severable and
declared the entire section unconstitutional. When it comes to regulating speech in the interest of
public order, the Court distinguished between discussion, advocacy and incitement. It considered
the first two to fall under the freedom of speech and expression granted under Article 19(1)(a),
and held that it was only incitement that attracted Article 19(2). Between Speech and Harm
Gautam Bhatia, a constitutional law expert, has an optimistic reading of the judgment that will
have value for precipitating the ripple effect. According to him, there were two incompatible
strands of jurisprudence which have been harmonised by collapsing tendency into imminence 11.
8 Supra Note 4
9 G S Mudur (2012): 66A Cut and Paste Job, The Telegraph, 3 December, visited on 3 April,
2015, http://www.telegraphindia.com/1121203/jsp/frontpage/story_16268138.jsp
10 Ibid.
11 Gautam Bhatia (2015): The Striking Down of 66A: How Free Speech Jurisprudence in India
Found Its Soul Again, Indian Constitutional Law and Philosophy, 26 March, visited on 4 April
2015,

https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-ofsection-66a-how-

indian-free-speech-jurisprudence-found-its-soul-again/
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The first strand, exemplified by Ramjilal Modi vs State of UP 12 and Kedar Nath Singh vs State of
Bihar,13 imported an older and weaker American standard, that is, the tendency test, between the
speech and public order consequences. The second strand exemplified by Ram Manohar Lohia
vs State of UP14, S Rangarajan vs P Jagjivan Ram, 15 and Arup Bhuyan vs Union of India 16, all
require greater proximity between the speech and the disorder anticipated. In Shreya Singhal, the
Supreme Court held that at the stage of incitement, the reasonable restrictions will step in to curb
speech that has a tendency to cause disorder. Other experts are of the opinion that Justice
Nariman was doing no such thing, and was only sequentially applying all the tests for free
speech that have been developed within both these strands of precedent.

SHREYA SINGHAL JUDGMENT: A CRITICAL REVIEW

The Article 14 challenge brought forward by the petitioners contended that Section 66A violated
their fundamental right to equality because it differentiated between offline and online speech in
terms of the length of maximum sentence, and was hence unconstitutional. The Court held that
an intelligible differentia, indeed, did exist. It found so on two grounds. First, the internet offered
people a medium through which they can express views at negligible or no cost. Second, the
Court likened the rate of dissemination of information on the internet to the speed of lightning
and could potentially reach millions of people all over the world. Before Shreya Singhal, the
Supreme Court had already accepted medium-specific regulation. For example in K A Abbas, the
Court made a distinction between films and other media, stating that the impact of films on an
average illiterate Indian viewer was more profound than other forms of communication. The
pessimistic reading of Shreya Singhal is that Parliament can enact medium-specific law as long
as there is an intelligible differentia which could even be a technical differencespeed of
transmission. However, the optimistic interpretation is that medium-specific law can only be
enacted if there are medium-specific harms, e g, phishing, which has no offline equivalent. If the
executive adopts the pessimistic reading, then draconian sections like 66A will find their way
12 Ramjilal Modi vs State of UP, 1957, SCR 860.
13 Kedar Nath Singh vs State of Bihar, 1962, AIR 955.
14 Ram Manohar Lohia vs State of UP, AIR, 1968 All 100
15 S Rangarajan vs P Jagjivan Ram, 1989, SCC(2) 574
16 Arup Bhuyan vs Union of India, (2011), 3 SCC 377
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back into the IT Act. Instead, if they choose the optimistic reading, they will introduce bills that
fill the regulatory vacuum that has been created by the striking down of S66A, that is, spam and
cyberbullying.

SECTION 79
Section 79 was partially read down. This section, again introduced during the 2008 amendment,
was supposed to give legal immunity to intermediaries for third party content by giving a quick
redressal for those affected by providing a mechanism for takedown notices in the Intermediaries
Guidelines Rules notified in April 2011. But the section and rules had enabled unchecked
invisible censorship17 in India and has had a demonstrated chilling effect on speech 18 because of
the following reasons: One, there are additional unconstitutional restrictions on speech and
expression. Rule 3(2) required a standard rules and regulation, terms and condition or user
agreement that would have to be incorporated by all intermediaries. Under these rules, users are
prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, updating or
sharing any information that falls into different content categories, a majority of which are
restrictions on speech which are completely out of the scope of Article 19(2). For example, there
is an overly broad category which contains information that harms minors in any way.
Information that belongs to another person and to which the user does not have any right to
could be personal information or could be intellectual property. A much better intermediary
liability provision was introduced into the Copyright Act with the 2013 amendment. Under the
Copyright Act, content could be reinstated if the takedown notice was not followed up with a
court order within 21 days.19 A counter-proposal drafted by the Centre for Internet and Society
for Intermediary Due Diligence and Information Removal, has a further requirement for

17 Pranesh Prakash (2011): Invisble Censorship: How the Government Censors Without Being
Seen, The Centre for Internet and Society, 14 December, http://cisindia.org/in
18 Rishabh Dara (2012): Intermediary Liability in India: Chilling Effects on Free Expression on
the Internet, The Centre for Internet and Society, 27 April, http://www.cis-india.org/internetgovernance/chilling-effects-on-free-expression-on-internet/
19 Rule 75, Copyright Rules, 2013.
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reinstatement that is not seen in the Copyright Act20.Two, a state-mandated private censorship
regime is created. You could ban speech online without approaching the court or the government.
Risk-aversive private intermediaries who do not have the legal resources to subjectively
determine the legitimacy of a legal claim err on the side of caution and takedown content. Three,
the principles of natural justice are not observed by the rules of the new censorship regime. The
creator of information is not required to be notified nor given a chance to be heard by the
intermediary. There is no requirement for the intermediary to give a reasoned decision. Four,
different classes of intermediaries are all treated alike. Since the internet is not an uniform
assemblage of homogeneous components, but rather a complex ecosystem of diverse entities, the
different classes of intermediaries perform different functions and therefore contribute differently
to the causal chain of harm to the affected person. If upstream intermediaries like registrars for
domain names are treated exactly like a web-hosting service or social media service then there
will be over blocking of content. Five, there are no safeguards to prevent abuse of takedown
notices. Frivolous complaints could be used to suppress addresses
legitimate expressions without any fear of repercussions and given that it is not possible to
expedite reinstatement of content, the harm to the creator of information may be irreversible if
the information is perishable. Transparency requirements with sufficient amounts of detail are
also necessary given that a human right was being circumscribed. There is no procedure to have
the removed information reinstated by filing a counter notice or by appealing to a higher
authority. The judgment has solved half the problem by only making intermediaries lose
immunity if they ignore government orders or court orders. Private takedown notices sent
directly to the intermediary without accompanying government orders or courts order no longer
have basis in law. The bench made note of the Additional Solicitor Generals argument that user
agreement requirements as in Rule 3(2) were common practice across the globe and then went
ahead to read down Rule 3(4) from the perspective of private takedown notices. One way of
reading this would be to say that the requirement for standardised rules and regulation, terms
and condition or user agreement remains. The other more consistent way of reading this part of
the order in conjunction with the striking down of 66A would be to say those parts of the user
agreement that are in violation of Article 19(2) have also been read down. This would have also
20 The Draft Counter Proposal is available at http://cis-india.org/internet-governance/counterproposal-by-cis-draft-it-intermediarydue-diligence-and-information-removal-rules2012.pdf/view
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been an excellent opportunity to raise the transparency requirements both for the State and for
intermediaries: for (i) the person whose speech is being censored, (ii) the persons interested in
consuming that speech, and (iii) the general public. It is completely unclear whether transparency
in the case of India has reduced the state appetite for censorship. Transparency reports from
Facebook, Google and Twitter claim that takedown notices from the Indian government are on
the rise.21 However, on the other hand, the Department of Electronics and Information
Technology (DEITY) claims that government statistics for takedowns do not match the numbers
in these transparency reports.22 The best way to address this uncertainty would be to require each
takedown notice and court order to be made available by the State, intermediary and also thirdparty monitors of free speech like the Chilling Effects Project.
SECTION 69A
The Court upheld S69A which deals with website blocking, and found that it was a narrowlydrawn provision with adequate safeguards, and, hence, not constitutionally infirm. In reality,
unfortunately, website blocking usually by internet service providers (ISPs) is an opaque process
in India. Blocking under S69A has been growing steadily over the years. In its latest response to
an RTI (right to information)23 query from the Software Freedom Law Centre, DEITY said that
708 URLs were blocked in 2012, 1,349 URLs in 2013, and 2,341 URLs in 2014. On 30
December 2014 alone, the centre blocked 32 websites to curb Islamic State of Iraq and Syria
propaganda, among which were pastebin websites, code repository (Github) and generic video

21 According to Facebooks transparency report, there were 4,599 requests in the first half of
2014, followed by 5,473 requests in the latter half. Available at https://govtrequests.facebook.
com/country/India/2014-H2/ also see Googles transparency report available at http: //
www.google. com/transparencyreport/removals/ government/IN/?hl=en and Twitters report,
available at https:// transparency.twitter.com/ country/in
22 Surabhi Agarwal (2015): Transparency Reports of Internet Companies are Skewed:
Gulashan

Rai,

Business

Standard,

31

March,

viewed

on

April

http://www.businessstandard.com/article/current-affairs/transparency-reports-of-internetcompanies-areskewed-gulshan-rai-115033000808_1.html.
23 http://sflc.in/deity-says-2341-urls-were-blockedin-2014-refuses-to-reveal-more/
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2015,

hosting sites (Vimeo and Daily Motion).24 Analysis of leaked block lists and lists received as
responses to RTI requests have revealed that the block orders are full of errors (some items do
not exist, some items are not technically valid web), in some cases counter speech which hopes
to reverse the harm of illegal speech has also been included, web pages from mainstream media
houses have also been blocked and some URLs are base URLs which would result in thousands
of pages getting blocked when only a few pages might contain allegedly illegal content.25

REPERCUSSIONS ON INTERMEDIARY LIABILITY IN INDIA

Even as free speech advocates and users celebrate the Supreme Court of India's landmark
judgment striking down Section 66A of the Information Technology Act of 2000, news that the
Central government has begun work on drafting a new provision to replace the said section of the
Act has been trickling in. The SC judgment in upholding the constitutionality of Section 69A
(procedure for blocking websites) and in reading down Section 79 (exemption from liability of
intermediaries) of the IT Act, raises crucial questions regarding transparency, accountability and
under what circumstances may reasonable restrictions be placed on free speech on the Internet 26.
While discussions and analysis of S. 66A continue, in this section we will focus on the aspect of

24 32 Websites Go Blank, The Hindu, 1 January 2015, viewed on 6 April 2015,

http://www.thehindu.com/news/national/now-modi-govtblocks-32-websites/article6742372.ece
25 Pranesh Prakash (2012): Analysing Latest List of Blocked Sites (Communalism and Rioting
Edition), 22 August, viewed on 6 April 2015, http://cis-india.org/internet-governance/
blog/analysing-blocked-sites-riots-communalism. Also, see Part II of the same series at http://cisindia.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-andrioting-edition-part-ii and analysis of blocking in February 2013, at http://cis-india.org/internetgovernance/blog/analyzinglatest-list-of-blocked-urls-by-dot
26 The Centre for Internet and Society (CIS), The Supreme Court Judgment in Shreya Singhal
and What It Does for Intermediary Liability in India?, 11 April, 2015 sourced from http://cisindia.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-forintermediary-liability
13 | P a g e

the judgment related to intermediary liability that could benefit from further clarification from
the apex court and in doing so, will briefly touch upon S. 69A and secret blocking.
Conditions qualifying intermediary for exemption and obligations not related to exemption
The intermediary liability regime in India is defined under S. 79 and assosciated rules that were
introduced to protect intermediaries for liability from user generated content and ensure the
Internet continues to evolve as a marketplace of ideas. But as intermediaries may not have
sufficient legal competence or resources to deliberate on the legality of an expression, they may
end up erring on the side of caution and takedown lawful expression. As a study by Centre for
Internet and Society (CIS) in 2012 revealed, the criteria, procedure and safeguards for
administration of the takedowns as prescribed by the rules lead to a chilling effect on online free
expression27.
S. 69A28 grants powers to the Central Government to issue directions for blocking of public
access to any information through any computer resource. The 2009 rules allow the blocking of
websites by a court order, and sets in place a review committee to review the decision to block
websites as also establishes penalties for the intermediary that fails to extend cooperation in this
respect.
There are two key aspects of both these provisions that must be noted:
a) S. 79 is an exemption provision that qualifies the intermediary for conditional immunity, as
long as they fulfil the conditions of the section. The judgement notes this distinction, adding that
being an exemption provision, it is closely related to provisions which provide for offences
including S. 69A29.
b) S. 69A does not contribute to immunity for the intermediary rather places additional
obligations on the intermediary and as the judgement notes intermediary who finally fails to
comply with the directions issued who is punishable under sub-section (3) of 69A. The
27 Ibid.
28 Section 69A, Information Technology Act, 2000
29 Supra Note 26
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provision though outside of the conditional immunity liability regime enacted through S. 79
contributes to the restriction of access to, or removing content online by placing liability on
intermediaries to block unlawful third party content or information that is being generated,
transmitted, received, stored or hosted by them. Therefore restriction requests must fall within
the contours outlined in Article 19(2) and include principles of natural justice and elements of
due process.

SUBJECTIVE DETERMINATION

OF

KNOWLEDGE

The provisions for exemption laid down in S. 79 do not apply when they receive actual
knowledge of illegal content under section 79(3)(b). Prior to the court's verdict actual
knowledge could have been interpreted to mean the intermediary is called upon its own
judgement under sub-rule (4) to restrict impugned content in order to seek exemption from
liability. Removing the need for intermediaries to take on an adjudicatory role and deciding on
which content to restrict or takedown, the SC has read down actual knowledge to mean that
there has to be a court order directing the intermediary to expeditiously remove or disable access
to content online. The court also read down upon obtaining knowledge by itself and brought
to actual knowledge under Rule 3(4) in the same manner as 79(3)(b).
Under S.79(3)(b) the intermediary must comply with the orders from the executive in order to
qualify for immunity. Further, S. 79 (3)(b) goes beyond the specific categories of restriction
identified in Article 19(2) by including the term unlawful acts and places the executive in an
adjudicatory role of determining the illegality of content. The government cannot emulate private
regulation as it is bound by the Constitution and the court addresses this issue by applying the
limitation of 19(2) on unlawful acts, the court order and/or the notification by the appropriate
government or its agency must strictly conform to the subject matters aid down in Article 19(2).
By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries complying
with takedown requests from non-government entities and has made government notifications
and court orders to be consistent with reasonable restrictions in Article 19(2). This is an
important clarification from the court, because this places limits on the private censorship of
15 | P a g e

intermediaries and the invisible censorship of opaque government takedown requests as they
must and should adhere, to the boundaries set by Article 19(2).30

PROCEDURAL SAFEGUARDS
The SC does not touch upon other parts of the rules and in not doing so, has left significant
procedural issues open for debate. It is relevant to bear in mind and as established above, S. 69A
blocking and restriction requirements for the intermediary are part of their additional obligations
and do not qualify them for immunity. The court ruled in favour of upholding S. 69A as
constitutional on the basis that blocking orders are issued when the executive has sufficiently
established that it is absolutely necessary to do so, and that the necessity is relatable to only some
subjects set out in Article 19(2). Further the court notes that reasons for the blocking orders must
be recorded in writing so that they may be challenged through writ petitions. The court also goes
on to specify that under S. 69A the intermediary and the 'originator' if identified, have the right to
be heard before the committee decides to issue the blocking order31.
Under S. 79 the intermediary must also comply with government restriction orders and the
procedure for notice and takedown is not sufficiently transparent and lacks procedural safeguards
that have been included in the notice and takedown procedures under S. 69. For example, there is
no requirement for committee to evaluate the necessity of issuing the restriction order, though the
ruling does clarify that these restriction notices must be within the confines of Article 19(2). The
judgement could have gone further to directing the government to state their entire cause of
action and provide reasonable level of proof (prima facie). It should have also addressed issues
such as the government using extra-judicial measures to restrict content including collateral
pressures to force changes in terms of service, to promote or enforce so-called "voluntary"
practices.

30 Ibid.
31 Supra Note 4
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ACCOUNTABILITY
The judgement could also have delved deeper into issues of accountability such as the need to
consider 'udi alteram partem' by providing the owner of the information or the intermediary a
hearing prior to issuing the restriction or blocking order nor is an post-facto review or appeal
mechanism made available except for the recourse of writ petition. Procedural uncertainty
around wrongly restricted content remains, including what limitations should be placed on the
length, duration and geographical scope of the restriction. The court also does not address the
issue of providing a recourse for the third party provider of information to have the removed
information restored or put-back remains unclear. Relatedly, the court also does not clarify the
concerns related to frivolous requests by establishing penalties nor is there a codified recourse
under the rules presently, for the intermediary to claim damages even if it can be established that
the takedown process is being abused.32

TRANSPARENCY
The bench in para 113 in addressing S. 79 notes that the intermediary in addition to publishing
rules and regulations, privacy policy and user agreement for access or usage of their service has
to also inform users of the due diligence requirements including content restriction policy under
rule 3(2). However,

the court ought to have noted the differentiation between different

categories of intermediaries which may require different terms of use. Rather than stressing a
standard terms of use as a procedural safeguard, the court should have insisted on establishing
terms of use and content restriction obligations that is proportional to the role of the intermediary
and based on the liability accrued in providing the service, including the impact of the restriction
by the intermediary both on access and free speech. By placing requirement of disclosure or
transparency on the intermediary including what has been restricted under the intermediary's own
terms of service, the judgment could have gone a step further than merely informing users of
their rights in using the service as it stands presently, to ensuring that users can review and have
knowledge of what information has been restricted and why. The judgment also does not touch
upon broader issues of intermediary liability such as proactive filtering sought by government

32 Ibid.
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and private parties, an important consideration given the recent developments around the right to
be forgotten in Europe and around issues of defamation and pornography in India.
The judgment, while a welcome one in the direction of ensuring the Internet remains a
democratic space where free speech thrives, could benefit from the application of the recently
launched Manila principles developed by CIS and others. The Manila Principles is a framework
of baseline safeguards and best practices that should be considered by policymakers and
intermediaries when developing, adopting, and reviewing legislation, policies and practices that
govern the liability of intermediaries for third-party content.
The court's ruling is truly worth celebrating, in terms of the tone it sets on how we think of free
speech and the contours of censorship that exist in the digital space. But the real impact of this
judgment lies in the debates and discussions which it will throw open about content removal
practices that involve intermediaries making determinations on requests received, or those which
only respond to the interests of the party requesting removal. As the Manila Principles highlight a
balance between public and private interests can be obtained through a mechanism where power
is distributed between the parties involved, and where an impartial, independent, and accountable
oversight mechanism exists.

CONCLUSION
In Shreya Singhal, the Court gave us great news: S66A has been struck down; good news: S79(3)
and its rules have been read down; and bad news: S69A has been upheld. When it comes to each
section, the impact of this judgment can either be read optimistically or pessimistically, and
therefore we must wait for constitutional experts to weigh in on the ripple effect that this order
will produce in other areas of free speech jurisprudence in India. But even as free speech
activists celebrate Shreya Singhal, some are bemoaning the judgment as throwing the baby away
with the bathwater, and wish to reintroduce another variant of S66A. Thus, we must remain
vigilant. This verdict in Shreya Singhal is a hugely important landmark in the Supreme Courts
history for many reasons. It represents a rare instance of the court adopting the extreme step of
declaring a censorship law passed by Parliament as altogether illegitimate. In clarifying the
balance between the right and its narrow constraints, the court has struck a vicious blow against
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the duplicitous stand taken by the state, which consistently represents the right to freedom of
speech and expression as a fragile guarantee at best. As Justice Narimans opinion has
highlighted, the liberty of thought and expression is not merely an aspirational ideal. It is also a
cardinal value that is of paramount significance under our constitutional scheme.

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