Prescribed by Law

If national security is to be used to limit freedom of expression, the restriction must not only address a legitimate national security interest but must also be prescribed by law.  The exact meaning of this has been an issue in several national security-related cases.

In Shreya Singhal v. Union of India,(1) the Supreme Court of India considered a constitutional challenge against section 66A of the Information Technology Act of 2000 by two women who had been arrested and charged under that section for Facebook comments in which they criticised the closure of Mumbai for a general strike (bandh) following the death of a political leader. Section 66A prohibited inter alia sending via a computer or other communications device information that is ‘grossly offensive’ or ‘menacing’, as well “information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device”. The Court found the law to be overbroad and too vague to pass constitutional muster, reasoning as follows:

In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.(2)

The Court found that the law was inconsistent with freedom of expression as guaranteed under Article 19 of the Indian Constitution and invalidated Section 66A in its entirety.(3)

The analysis of the Supreme Court in this case was similar to the analysis under international human rights law of whether a restriction on freedom of expression meets the tripartite test contained in Article 19(3) of the ICCPR. In cases of vague and overbroad provisions, as in Shreya Singhal v. Union of India, restrictions would fail to meet the requirement of being provided by law. The UN Human Rights Committee has found that:

For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.(4)

UN Human Rights Committee, ‘General Comment no. 34‘, UN Doc CCPR/C/GC/34 (2011) at para. 25

Overbroad restrictions on national security grounds will likely also fail the requirement of proportionality, which is part of the requirement that restrictions be ‘necessary’ to protect a legitimate interest, such as national security.(5)