SC shocked on Information Technology Act still being used : The apex court had declared the law unconstitutional back on March 24, 2015

PUCL has in its petition urged the apex court to direct the Centre to collect data on FIRs, investigations or pending cases in which Section 66A has been invoked.: File picture

TT Legal Correspondent   |   New Delhi   |   06.07.21 : The Supreme Court on Monday expressed “shock” and “amazement” over the manner in which people were still being booked under Section 66A of the Information Technology Act that was declared unconstitutional by the apex court way back on March 24, 2015.

“It’s amazing and shocking. That’s what I can say. Shreya Singhal is a 2015 judgment. What is going on in the country is terrible,” Justice R.F. Nariman observed after senior advocate representing the People’s Union for Civil Liberties (PUCL) brought to the court’s notice the continuing foisting of cases under the scrapped section and courts taking cognisance of the same. The Justice Nariman-led bench also comprised Justices K.M. Joseph and B.R. Gavai.

Attorney-general K.K. Venugopal, on behalf of the Centre, sought two weeks’ time to file the Centre’s counter-affidavit on the matter.

According to PUCL, 745 cases filed under Section 66A of the IT Act are pending in different courts till date.

PUCL has in its petition urged the apex court to direct the Centre to collect data on FIRs, investigations or pending cases in which Section 66A has been invoked.

During the hearing, Venugopal submitted that Section 66A is still there in most of the law books.

“When police have to register a case, the section is still there with only a footnote that mentions that the Supreme Court has struck it down. There has to be a bracket in 66A with words struck down,” the country’s highest law officer said.

“You file a counter as it is a shocking state of affairs,” Justice Nariman told the AG.

According to PUCL, the Supreme Court had in a subsequent order on February 15, 2019 directed the states and Union Territories to desist from invoking Section 66A, but the police continue to file cases under the provision.

“…the applicant discovered that Section 66A of the IT Act has continued to be in use not only within police stations but also in cases before trial courts across  India,” the PUCL stated.

PUCL said the information was available on www.zombietracker.in — a website developed by a team of independent researchers.

 The website provides information of such cases and acts as a tool for convenient mapping of the use of Section 66A of the IT Act across India. The findings of the website reveal that as on March 10, 2021, as many as 745 cases are still pending and active before the district courts in 11 states wherein the accused persons are being prosecuted for offences under Section 66A of the IT Act.

Hence, the PUCL has sought the following directions:

⚫ Direct the Union government to ensure full compliance immediately with Shreya Singhal through issuance of appropriate circulars/advisories addressed to the chief secretaries of all states and Union Territories, and the DGPs of all states and Union Territories, or equivalent officers thereof for onward circulation to the police stations;

⚫ Direct the Supreme Court Registry to dispatch a copy of Shreya Singhal v. Union of India to all high courts to pass appropriate orders in pending cases concerning Section 66A of the IT Act as well appropriate circulars, bringing Shreya Singhal to the notice of all district courts within their jurisdiction to prevent failures of justice;

⚫ Direct Centre to collect and furnish data for all prosecutions invoking Section 66A after March 24, 2015 before the apex court in order to secure compliance with Shreya Singhal

On March 24, 2015, the Supreme Court came down heavily on the tendency of the authorities to jail individuals for posting “offensive” material on social networking sites and struck down the controversial Section 66A of the IT Act as being “unconstitutional” and in violation of the freedom of expression and speech guaranteed by Article 19(1) (a) of the Constitution.

While striking down the legislation, the apex court had said the provision had been vaguely defined to bring under its ambit any form of opinion expressed on the Internet. This can be chilling deterrent on free speech, the apex court had said.

However, no one has been convicted so far under the provision, though dozens of persons are incarcerated in jails under the impugned offence.

Besides Section 66A, the court had struck down Section 118(d) of the Kerala Police Act, which provided for a similar punishment.