By ABHISHREE PARADKAR, student of symbiosis law school, Pune.
The Centre submitted an affidavit to the Supreme Court where it stated that both the States and their businesses have equal responsibility to make sure that no person is booked by the police under Section 66A of the information technology act simply for expressing themselves on social media.
In 2015 Section 66A was declared unconstitutional by the Supreme Court. Justice Nariman had authored the judgment which stated that section 66A was unconstitutional second it was an ambiguous provision that charged people for their social media posts.
On 5th July, 2021, justice RF Nariman opinionated that it was “distressing, shocking and terrible” that despite the section being declared unconstitutional, people were still being booked and tried under it even six years after it being struck down which is a violation of free speech.
This was brought to the court’s attention by the NGO People’s union of civil liberties (PUCL).
SECTION 66A, INFORMATION TECHNOLOGY ACT, 2008 (now declared unconstitutional in 2015)
Section 66A states that if a person sends any information through a computer or a computer resource which is grossly offensive or menacing or false information which might cause inconvenience, annoyance, danger, insult, injury, or criminal intimidation among other things by using such computer or use electronic mail or message to cause annoyance or inconvenience to the recipient of such message, shall be imprisoned with a term which may extend to 3 years.
In the landmark case of Shreya Singhal v. Union of India, the Supreme Court stated that Section 66 A of the IT Act was vague and therefore, it violated the freedom of free speech. The Act also violated the protection provided to free speech and therefore, upset the balance between free speech and reasonable restrictions imposed on it.
In January 2019 as well, the court’s attention was drawn to the issue of the invalidated provision still being used by the police to register complaints. It has been noticed that unfortunately many police headquarters and prosecutors in various states have not been disseminating the information regarding the court’s ruling stating unconstitutionality of the said section to the police stations.
There have been many cases where courts have framed charges under Section 66A even after the lawyers had cited the Shreya Singhal judgement. Presently, a website called Zombie Tracker which was developed by a team of independent researchers shows that around 745 cases are pending in 11 states of India which relate to charges under Section 66 A.
ARGUMENTS BY THE CENTRE
The Centre submitted an affidavit which stated that police and public order fall under the ‘state subjects’ as provided in the constitution. Therefore, “prevention, detection, investigation, and prosecution of crimes and capacity building of the police” are the primary responsibilities of the states.
Secondly, the Centre also stated that the Ministry of Information and Technology as well as the Ministry of Home Affairs had done their best to disseminate information about the Supreme Court judgment of 2015.
Thirdly, it also stated that under the IT Act, there is a footnote to Section 66A which mentions that it has been scrapped. However, to make it more apparent, Attorney General, Mr. KK Venugopal appearing on behalf of the Centre suggested that it can be mentioned right beside Section 66A that it has been scrapped and, in the footnote, include the excerpt from the 2015 verdict.
PRESENT PLEA BY PUCL
It is concerning that the Supreme Court had to be informed for the second time in the past two years that Section 66 A of the IT Act is still being invoked by police and being used in trial courts as well. Justice Nariman agreed with the Senior Counsel representing PUCL and stated that the “state of affairs is shocking”.
The senior Counsel for PUCL urged the Apex Court to intervene on the said matter and create a mechanism to disseminate the Shreya Singhal judgement to each and every police station and the trial court and also to collect information and data regarding all the FIRs, investigations, and pending cases relating to Section 66A of the IT Act.
Section 66A, Information Technology Act, 2008 (repealed)
Shreya Singhal v. Union of India., (2013) 12 SCC 73