The Supreme Court on Monday expressed shock and displeasure on being told that over 1,000 cases had been filed under Section 66A of the IT Act – a controversial law that allowed police to arrest people for posting “offensive” content online – since it was struck down seven years ago.
Sec 66A was scrapped by the top court on March 24, 2015. In a landmark judgement, the court described the now-defunct law as “vague”, “unconstitutional” and a “violation of free speech”.
“It is shocking. We will issue notice,” a three-member bench of Justices R Nariman, KM Joseph and BR Gavai said. Justice Nariman added: “Amazing. What is going on is terrible.”
The court has sought a response from the centre in two weeks’ time.
The court was hearing a plea by an NGO – the People Union for Civil Liberties (PUCL) – seeking directions to the centre to advise all police stations against registering FIRs under this law.
Appearing for the petitioner, senior advocate Sanjay Parikh told the court “please look at how cases have increased… people are suffering”, and urged it to direct the centre to collect all data on FIRs and active investigations under this scrapped law, as well as cases still pending in courts.
Mr Parikh said that prior to the scrapping of Sec 66A there were 229 pending cases. Since then, 1,307 new cases had been registered, of which 570 are still pending. The majority of these were registered in Maharashtra (381), followed by Jharkhand (291), Uttar Pradesh (245) and Rajasthan (192).
Other states to register Sec 66A cases after it was struck down are Andhra Pradesh (38), Assam (59), Delhi, (28), Karnataka (14), Telangana (15), Tamil Nadu (7) and Bengal (37).
The petitioner also pointed out that in February 2019 the Supreme Court had directed that copies of the judgment scrapping 66A be available to every district court via the concerned High Court.
The centre was also directed to make available copies to Chief Secretaries of all states and UTs, who were, in turn, ordered to pass on the information to all police departments.
“… shockingly, despite the above order (dated February 15, 2019) and steps taken towards compliance… 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 said.
Responding on behalf of the centre, Attorney General KK Venugopal said: “Even if it is struck down… Section 66A is still there in the bare Acts. When police has to register a case it is still there… only a footnote that the Supreme Court has struck it down. There has to be a bracket with ‘struck down’.”
In 2018 a study by Delhi High Court advocate Abhinav Sekhri and Apar Gupta of the Internet Freedom Foundation (IFF), found continued use of Sec 66A by the authorities; they called this a “Legal Zombie”.
Sec 66A was struck down on March 24, 2015, after it was challenged by Shreya Singhal, a Mumbai law student who filed a petition in 2012 after two young women were arrested for posting comments critical of the city’s shutdown after the death of Shiv Sena founder Bal Thackeray.
“Nobody should have fear of putting up something because of the fear of going to prison,” Ms Singhal said at the time, adding there were other laws that could be used to counter hate speech.
Section 66A read: “Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”