Tuesday Brief

Yesterday Supreme Court (SC) showed its dismay and shock over the continuing use Section 66 A of IT Act, which was canceled/disallowed by SC in the year 2015.

Now, what is this Section 66 A—

Punishment for sending offensive messages through communication service, etc. -Any person who sends, by means of a computer resource or a communication device,-

a- any information that is grossly offensive or has menacing character; or

b- any 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; or

c- any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine. Explanation. -For the purpose of this section, the terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource, or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

In 2015, in a landmark judgment that expanded the contours of free speech to the Internet, the SC struck down Section 66A, calling it “open-ended and unconstitutionally vague”.

Yesterday, a bench of 3 judges issued notice on a plea filed by the NGO People’s Union for Civil Liberties (PUCL), which said that “in spite of the judgment, it became clear from the newspaper reports that the said provision continued to be invoked by the State’s investigative machinery as well as the judiciary, probably under the impression that Section 66A remained on the statute books”.

A senior advocate drew the SC’s attention to how cases have increased steadily over the years despite the 2015 ruling that struck down Section 66A for “being violative of Article 19(1)(a) and not served under Article 19(2).

Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.

Attorney General (AG) told the bench that Section 66A still remains in the Act though it was struck down by the division bench. “When police have to register a case, the section is still there and there is only a footnote that the Supreme Court has struck it down,” he said, adding, “there has to be a bracket in 66A with the words struck down”.

“You file a counter as it is a shocking state of affairs,” replied one Justice. The AG sought two weeks to file a reply, a request that was granted by the court.

Referring to data collated by “independent researchers”, the plea said that “as on 10.03.2021, as many as a total of 745 cases are still pending and active before the Districts Courts in 11 States — Maharashtra leading the tally with 381 cases under 66A after it was struck down, followed by UP with 245 such cases after the cut-off date — wherein accused persons are being prosecuted for offenses under Section 66A of the IT Act” and that there could be many more such cases when data of more states is extracted.

The petition further added Section 66A has continued to be used not only with police but also in cases before trials court in India. Over the years, police have invoked this provision to arrest several people, more particularly when the posted contents are against politicians.

The petitioner in the current case said it had filed an application in 2018 seeking directions to ensure full compliance with the earlier judgment “through the issuance of appropriate circulars/advisories addressed to the Chief Secretaries of all States and Union Territories, and the Director Generals of Police of all States and Union Territories, or equivalent officers thereof for onward circulation to the Police Stations”.

The Centre had then said that the Ministry of Electronics and Information Technology and Ministry of Home Affairs were both disseminating knowledge about the case by making the judgment available on its website, organising workshops and seminars, and by writing letters to Chief Secretaries and Director Generals of Police of all States requesting compliance and seeking confirmation of the implementation of the judgment.

The court, the petition pointed out, had disposed of the plea in February 2019 by directing that the copies of the earlier judgment be made available by every High Court to all district courts. The Union Government was also directed to make available copies to chief secretaries of all state governments and Union Territories and the chief secretaries were, in turn, directed to sensitise the police departments.

Now after all these happenings in SC, it is really surprising and shocking that this section is still being used by the police and lower trial courts.

The AG’s reply in this regard was that there has to be noting in front of this section that this has been struck down by SC, presently this noting is coming in the footnote of this section, which is missed by many. My contention is that if that is the case why it was not done till this date and how this section is being used by states across India.

Waiting for your views/comments on this blog.

Anil Malik

Mumbai, India

5^th July 2021