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Taken aback by the continued misuse of the extinct Section 66A of the Information Technology Act, a law it ordered scrapped in 2015, the apex court seeks explanation from the centre

In March 2015, a Supreme Court bench comprising Justice Chelameswar Rao and Justice Rohinton Nariman delivered a landmark judgment declaring Section 66A of the Information Technology Act unconstitutional.

Last week, a bench of the Supreme Court again comprising Justice Nariman and Justice Vineet Saran issued notice to the Central Government while hearing a plea on the continued use of Section 66A of the Information Technology Act, 2000 which has been declared unconstitutional by the Supreme Court in 2015.

The plea filed by Peoples Union for Civil Liberties (PUCL) brought to the notice of the Court that even after the Court’s order scrapping the draconian section, there has been continued prosecution of people under this section which is leading to a wanton abuse of the citizen’s Fundamental Right. Expressing its concern, the Bench said that it will take strict action if the orders of the Court were violated and directed the Centre to file its reply within a period of four weeks.

PUCL, in its plea, has prayed that in order to ensure compliance with the judgment in Shreya Singhal vs. union of India, directions should be issued to the Central Government which should issue circulars and advisories addressed to the Chief Secretaries of the State and Union Territories and Director Generals of all States and Union Territories to comply with the order of the Court.

Section 66A of the IT Act had led to the arrests of numerous people for posting “allegedly objectionable” content on the internet. The Court held that “Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1) (a) i.e.  Freedom of speech and expression and not saved by Article 19(2) i.e., Reasonable restriction”. Moreover the Court had observed that the section “arbitrarily, excessively and disproportionately invades the right of free speech.”

Section 66A of the Information Technology Act made it an offence “if 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”.

In 2012, law student Shreya Singhal had filed a PIL against Section 66A after two girls were arrested on account of one of them posting a comment on Facebook questioning the strike observed in the state of Maharashtra after the death of Shiv Sena’s leader Bal Thackeray and the other girl had liked the post. Thereafter in 2013, the Supreme Court had issued an advisory according to which a person cannot be arrested for making any objectionable comment on social networking sites without the prior permission from a senior officer such as an IG or DIG.

Misuse of the Act has been rampant. On April 12, 2012 a Professor of Jadavpur University was arrested for circulating a cartoon on the internet lampooning West Bengal Chief Minister Mamta Banerjee for which he had to spend a night in jail. A month later, two AIR India employees were arrested for allegedly forwarding inappropriate jokes about the then Gujarat Chief Minister Narendra Modi and for disrespecting the national flag.

In September 2012, two girls, Heena Bakshi and Kamalpreet Singh, were arrested for allegedly ridiculing Chandigarh Traffic Police on a Facebook page. Again in the same month, a free speech campaigner, Aseem Trivedi, was arrested by Mumbai police on sedition charges for “depicting the Indian Parliament as a lavatory buzzing with flies.” In the same year in October, three young men from Kishtwar district of Jammu and Kashmir were arrested for being tagged in a Facebook post allegedly containing a blasphemous video where one of them had commented on the video. Another case was the arrest of a small businessman of Puducherry who had tweeted reports of corruption against the son of the then Congress leader and Finance Minister P  Chidambaram.

In August 2013, a Dalit writer who had updated a status on Facebook page criticising the Uttar Pradesh Government for the suspension of IAS officer Durga Shakti Nagpal was arrested for creating disharmony in the state.

The year 2014 also witnessed a number of cases where misuse of Section 66A was evident. The first among them was the arrest of a young ship building professional for posting a comment on Facebook page where he claimed that Modi would unleash a “holocaust” if  elected to power. Thereafter in August 2014, Rajeesh Kumar from Kerala was arrested for posting an abusive comment on Facebook against Prime Minister Narendra Modi; it was alleged that Modi was depicted in a picture shown with an imprint of a shoe on his face. In the same month, a college student in Kerala was arrested on charges of sedition for allegedly abusing and changing some of the words of a patriotic song on a Facebook post. In October again a law student was arrested over a Facebook post where he had commented that Cyclone Hudhud’s destruction was nature’s way of punishing those who did not vote for YSR Congress.

Again in 2015, a class IX student in Rampur district of UP was arrested for allegedly posting an offensive remark on Facebook against minister Azam khan. While these instances depict the scenario prior to the scrapping of Section 66A by the Supreme Court, there have been instances of misuse of the section after passing of the verdict in 2015.

In 2016, according to report in Hindustan Times, around 3,000 people were arrested under Section 66A in 2015 which was ironically more than the 2014 figure of 2,423 though the apex court had given its verdict in March 2015. In March 2017, within a week seven people were arrested for allegedly posting comments on Facebook against the election of Yogi Adityanath as chief minister of Uttar Pradesh.

Research shows that a large part of the police personnel are still not properly informed of the decisions of the apex court and some say that they cannot implement the decisions of the Supreme Court until the government sends the notification and there is a module and proper circulation of the notification at all police departments. If anything, this only goes to prove that for the proper execution of laws it is not only necessary that the judiciary delivers its decisions but the state does its part by executing these decision.

—Shaheen Parween

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