“What’s going on? It is terrible...shocking. It is distressing,” remarked the Supreme Court of India bench.(HT Photo)
“What’s going on? It is terrible...shocking. It is distressing,” remarked the Supreme Court of India bench.(HT Photo)

‘Shocking’: SC slams use of quashed IT law

The court was informed that there were 229 cases pending in 11 states when the Supreme Court in April 2015 struck down much-abused Section 66A of the IT Act, which authorised police to arrest people for social media posts construed “offensive” or “menacing”.
By Utkarsh Anand, Hindustan Times, New Delhi
PUBLISHED ON JUL 05, 2021 11:38 PM IST

The Supreme Court on Monday said it was “shocking” and “distressing” that there was a fivefold increase in the registration of cases under Section 66A of the Information Technology Act though the provision was quashed by the top court in 2015.

The court was informed that there were 229 cases pending in 11 states when the Supreme Court in April 2015 struck down much-abused Section 66A of the IT Act, which authorised police to arrest people for social media posts construed “offensive” or “menacing”. After the law was quashed, police in these states went on to lodge 1,307 new cases under the same provision.

“What’s going on? It is terrible...shocking. It is distressing,” remarked the bench, headed by justice Rohinton F Nariman, as it took up a plea by NGO People’s Union for Civil Liberties (PUCL) to issue suitable directives to the Union government and subordinate courts in the country to make sure cases are not registered under Section 66A, and nobody is arrested or prosecuted under this quashed law.

Senior advocate Sanjay Parikh, appearing for the NGO, cited a study conducted by Internet Freedom Foundation and Civic Data Labs, which showed that while 229 cases were pending as on April 24, 2015 when the apex court declared Section 66A of the IT Act as “unconstitutional and void”, and 1,307 new cases got registered in the last six years under the law already struck down. Maharashtra topped the list with 381 cases, followed by Jharkhand (291), and Uttar Pradesh (245).

Parikh lamented that even after the Supreme Court in February 2019 asked the chief secretaries and director generals of police of all states and Union territories to ensure that the 2015 judgment was widely publicised, the situation on ground did not change.

“It is shocking. We will work out a method and will do something to make sure our judgment works,” retorted the bench, which also included justices KM Jospeh and BR Gavai.

Attorney general KK Venugopal, appearing on behalf of the Centre, pointed out that Section 66A was still there in the IT Act, and the bare acts also contained this provision even after the 2015 judgment of the Supreme Court.

“The section is still there in the statute. When a police officer looks at the law book, it is still there. The section has two stars with a footnote that says the section has bene struck down by a division bench of the Supreme Court. But the section is full there,” said the AG. “A police officer won’t read the footnote, we are sure,” said justice Nariman.

At this, Venugopal suggested that the section must be identified as “struck down” right next to where it is mentioned in the bare act, and the footnote must also clearly say that the provision does not exist anymore for the purpose of registration of cases.

“It is a shocking state of affairs. On Article 144, please read my dissent in the Sabrimala case. It is very hard-hitting,” justice Nariman told the AG and Parikh while issuing notices to the Union government and others on PUCL’s plea.

The bench gave Venugopal two weeks to come back with a response to ascertain police stop invoking Section 66A of the IT Act in first information reports(FIRs), and listed the matter after three weeks.

In November 2019, justice Nariman penned down a dissenting judgment on behalf of himself and justice Dhananjaya Y Chandrachud while the majority view of three judges ruled that a larger bench should again consider the matter of the entry of women of all ages into Kerala’s Sabarimala temple.

Article 144 lays down that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

In his dissenting judgment, justice Nariman emphasised that it is not judicial authorities alone that are to act in aid of the Supreme Court. But all authorities -- judicial as well non-judicial -- that exercise powers over the citizens are mandated to act in aid of the Supreme Court. The judge added that it is the bounden duty of every minister, including the Prime Minister and chief ministers, MPs and MLAs, as well as the executive branches of governments, to “faithfully aid in carrying out decrees and orders passed by the Supreme Court of India when such decrees and orders command a particular form of obedience, even where they are not parties to the litigation before the Supreme Court”.

PUCL, in its new plea, has cited the court’s 2019 order whereby the bench directed that copies of its 2015 judgment be made available by every high court in this country to all district courts. It was also directed the Centre to supply copies of the judgment to chief secretaries of all state governments and Union territories, and told the officials, in turn, to sensitise the police departments by sending copies of the judgment to the director general of police in each state.

However, the NGO contended, Section 66A of the IT Act has continued to be in use, not only within police stations but also in cases before trial courts. It complained that not only the police were lodging FIRs under section 66A, trial courts were also passing orders and people were being prosecuted. PUCL pleaded that a government agency should place before this court the complete data on cases under Section 66A, besides appropriate directives by the top court to subordinate courts and the government.

Section 66A was brought into the statute by the second United Progressive Alliance government in 2009. After a clutch of petitions challenged the validity of the law citing its abuse and vagueness, the NDA government told the court in 2014 that the provision will be administered in a reasonable manner and that a panel was also set up to review applicability.

Underlining the supremacy of the right to freedom of speech and expression and the “chilling effect” Section 66A had on this fundamental right, the court held that governments may come and go but Section 66A will go on forever and, what is otherwise invalid, cannot be saved by assurances. The bench of justices J Chelameswar (now retired) and justice Nariman has termed Section 66A “open-ended and unconstitutionally vague”, adding nothing short of quashing the law in its entirety could suffice since this provision “arbitrarily, excessively and disproportionately” invaded the right to free speech, right to dissent, right to know, and had a “chilling effect” on constitutional mandates.

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