Speech Online

Why the case matters beyond section 66A. It establishes that the internet is not a lesser medium attracting a lower standard, and it puts vagueness and overbreadth firmly into Indian article 19 doctrine, where they had been used but not systematically.

Lever two: the intermediary

The distinctive feature of online speech is that it is carried by somebody: a platform, a host, a network. The State can therefore regulate the carrier instead of the speaker, which is far more efficient and far less visible.

Safe harbour. Section 79 of the Information Technology Act exempts an intermediary from liability for third-party information it hosts, provided its function is limited to providing access, it does not initiate or select or modify the transmission, and it observes due diligence and any prescribed guidelines. The exemption is lost if the intermediary conspires or abets, or if it fails to remove material on receiving actual knowledge of unlawfulness.

The problem safe harbour creates. If an intermediary loses immunity on receiving a private complaint, its rational course is to remove anything complained of without examining the merits. Regulation of the carrier therefore produces private censorship at the complainant's request, with no adjudication and no remedy for the speaker.

The answer given. In Shreya Singhal the provision was read down so that actual knowledge means knowledge received through a court order or a notification by the appropriate government, not a private complaint. That converts a private takedown regime into a public one.

Blocking. Section 69A permits the Central Government to direct blocking of public access in the interests of the sovereignty and integrity of India, defence, security of the State, friendly relations with foreign States, public order, or for preventing incitement to a cognisable offence relating to those. The grounds track article 19(2), which is why the power survived, and the rules prescribe a committee, an opportunity to be heard and reasons. The standing criticism is confidentiality: where the direction and its reasons are not disclosed, the safeguards cannot be tested, which is the same objection Anuradha Bhasin answered for section 144 by requiring publication.

Lever three: suspending the medium

Facts. Anuradha Bhasin v. Union of India, decided 10 January 2020. After the constitutional changes of August 2019 in Jammu and Kashmir, mobile networks, internet and landline services were discontinued and movement restricted under section 144 of the Code of Criminal Procedure. The executive editor of a newspaper said print media had come to a halt without the internet.

Held, in fifteen directions. Orders under section 144 and for suspension of telecom services must be published, to enable challenge. Speech and expression, and the practice of a profession or trade, over the medium of the internet are protected by articles 19(1)(a) and 19(1)(g), and restrictions must satisfy article 19(2) and (6) including proportionality. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services Rules 2017; suspension may be for a temporary duration only, must be proportionate, must not extend beyond the necessary duration, and is subject to judicial review. Because the Rules provide neither periodic review nor a time limit, the Review Committee must review within seven working days of the previous review. All existing suspension orders were to be reviewed forthwith and those not conforming revoked. On section 144, the danger must be in the nature of an emergency, the power cannot be used to suppress legitimate expression of opinion or grievance, the order must state material facts, the Magistrate must apply the least intrusive measure, and repetitive orders are an abuse of power.

Why it matters. It is the leading authority on shutdowns. Note what it did not do: it did not hold that access to the internet is itself a fundamental right. It held that the rights exercised through the internet are protected, which is a narrower and more defensible proposition, and it is the one to state.

What is genuinely new, and what is not

MU's label asks about new scientific development, so the answer should separate the two.

Not new. The grounds of restriction, the requirement of a law, proportionality, the advocacy and incitement distinction, and the rule that circulation is part of the right. Every one of these came from the print cases and applies unchanged.

New. That speech is carried by a private intermediary whose incentives are not the speaker's, so the State can regulate speech by regulating a company. That the medium can be switched off wholesale, which no government could do to newspapers. That speech is instantaneous, borderless and permanent, so the harm is done before any remedy operates. And that scale changes the calculus: a rule that is proportionate applied to a publisher may be disproportionate applied to millions of individual users.

A worked example

A State Government, apprehending disorder after a court verdict, directs telecom operators to suspend mobile internet in four districts for one week, and separately writes to a social media platform asking it to remove twenty specified posts as offensive. The order to the operators is not published. The platform removes the posts. A user whose post was removed, and a small business unable to trade, both complain.

The suspension. Test it against Anuradha Bhasin. Is it published? No, and that alone is contrary to the direction, because an unpublished order cannot be challenged. Is it temporary? A week is not indefinite, so it clears that hurdle. Is it proportionate and the least intrusive measure? Suspending mobile internet across four districts to prevent disorder that has not occurred requires justification, and narrower measures, suspending in a specific locality, or restricting specified services, must be shown to be inadequate. Is there periodic review within seven working days? For a one-week order the requirement bites almost immediately.

The business. Its complaint is under article 19(1)(g), which Anuradha Bhasin expressly protects over the medium of the internet, and it is a separate right requiring separate justification under article 19(6).

The takedown. The State did not order removal; it asked. On the reading down of section 79 in Shreya Singhal, actual knowledge means a court order or a government notification, so a request that is not a lawful direction does not put the platform at risk, and its removal was voluntary. That is the private censorship problem: the user has lost his speech without any order he can challenge.

What the user can do. If the communication was in substance a direction, he can attack it as a restriction imposed without a law and without the section 69A procedure. If it was genuinely a request, his remedy against the platform depends on whether it is amenable to article 226 as discharging a public function, which is [Private Bodies and Public Functions], and the answer is not obvious.

The lesson. The suspension is the easier challenge because it is State action with a settled framework. The takedown is the harder one because the State has arranged for somebody else to do it.

Quick revision

• Article 19(1)(a) is medium-neutral. Anuradha Bhasin declares speech and trade over the internet protected by articles 19(1)(a) and 19(1)(g), subject to 19(2) and (6) including proportionality.
• Three levers: the speaker, the intermediary, the medium.
• Shreya Singhal struck down section 66A for vagueness and overbreadth and for failing to distinguish discussion and advocacy from incitement; read down section 79 so that actual knowledge means a court order or government notification; struck down the State blocking power and upheld section 69A.
• Section 69A survives because its grounds track article 19(2); the criticism is confidentiality of the directions.
• Anuradha Bhasin: publication, proportionality, no indefinite suspension, temporary only, review within seven working days, least intrusive measure, no repetitive section 144 orders.
• Anuradha Bhasin did NOT hold that access to the internet is a fundamental right; it held that the rights exercised through it are protected.
• What is new is the intermediary, the switch, the speed and the scale, not the doctrine.

Test yourself

1. On what three grounds was section 66A struck down, and why does the case matter beyond that section?

2. Explain safe harbour, the private censorship problem it creates, and how Shreya Singhal answered it.

3. Why did section 69A survive when the State blocking power did not?

4. Give six of the directions in Anuradha Bhasin bearing on internet suspension.

5. What did Anuradha Bhasin NOT decide, and why is the narrower proposition the better one?

6. Separate what is genuinely new about online speech from what the print cases already settled.