A few days back I had written about Information Technology 2000 Section (in short IT 66 A), which is about making it a punishable offense for any person to send ‘grossly offensive or menacing information using a computer resource or communication device. Although SC had deemed this law unconstitutional in 2016 and asked the Central Govt to not use this law. But it so happened that so many states were still using the law to charge sheet persons as per this law. As the cases started piling up in states, a petition was filed in SC on the use of this law. SC asked Govt to file their reply on this matter.
Last week Central govt filed the reply:
The central government has told the Supreme Court that it is the primary duty of states and Union Territories to stop registering cases under Section 66A of the Information Technology Act after the provision was quashed by the apex court in 2015.
Submitting its affidavit, the Centre said that although 21 states and UTs have reported compliance with the 2015 judgment in their letters to the ministry of information and technology, the buck stopped with the law enforcement agencies under the state govt to ensure no fresh cases were lodged under Section 66A of the IT Act.
“It is submitted that ‘police’ and ‘public order’ are state subjects as per the Constitution of India and prevention, detection, investigation, and prosecution of crimes and capacity building of police personnel as the primary responsibility of states,” said the affidavit filed on July 27 in the court.
Based on inputs from the ministry of home affairs and the IT ministry, the Centre said: “The Law Enforcement Agencies (LEA) take legal action as per provisions of law against cybercrime offenders. Accordingly, (it is) the LEAs’ equal responsibility to comply with the said judgment/order by the Supreme Court.”
The affidavit was filed days after the bench, headed by Justice Rohinton Nariman, took strong exception to the fact that there was a fivefold increase in registration of cases under Section 66A after the provision was held to be “unconstitutional” and “void” by the SC
.The application by an NGO “People’s Union for Civil Liberties” (PUCL) revealed that there were 229 cases pending in 11 states when the Supreme Court in March 2015 struck down the much-abused Section 66A of the IT Act, which authorised police to arrest people for social media posts considered ‘offensive or menacing’. After the law was quashed, the police in these states went on to lodge 1,307 new cases under the same provision.
The advocate, appearing for the NGO, lamented that even after the Supreme Court in February 2019 asked the chief secretaries and director generals of police of all states and UTs to ensure that the 2015 judgment was widely publicised, the situation on the ground did not change.
On 5th July, the bench called the situation ‘shocking and distressing’ when it sought a reply from the Central Govt on the steps taken by them to ensure the implementation of its 2015 judgment.
Submitting its reply, the Central Govt has now said that both the ministries (IT & Home) were making every effort to apprise states of the court’s 2015 judgment and have written to all states since 2016 to stop lodging new cases under Section 66A of the IT Act and withdraw such cases. The latest communication is of 13th July 2021, when the Home Ministry asked the state govts and their Police Chiefs to immediately revoke cases registered under Section 66A of IT Act.
The affidavit, by which the reply was submitted by Central Govt said that 21 states wrote to IT Ministry between April and July 2019, saying that they have issued suitable directions to the police departments and complied with the 2015 verdict. This affidavit disclosed that 21 states did not include Maharashtra, which topped the list in registration of cases after the judgment with 381 cases, followed by Jharkhand (291) and UP (245).
My contention is that knowing that law and order is a state subject then why all the opposition leaders are creating such a hue and cry on this issue and blaming Central Govt for the same. But one thing is that even the Central Govt did not follow rigorously with the states about the implementation of their order, otherwise how the state of Maharashtra which was under BJP rule till October 2019 did not take care of implementing this order, and if they had informed to the concerned Police officials but still Police was still using the 66A for charge sheeting the people then the State Govt is to be blamed for negligence and carelessness.
The final SC’s say on this matter will be there during this week.
Waiting for your views and comments.
Anil Malik
Mumbai, India
2nd August 2021.