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IT Act Section 66A: Police Turns a Nelson’s Eye

Despite this Section being struck down by the Supreme Court in 2015 as unconstitutional, the police continues to use it against citizens. This is open disobedience of the apex court.

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By Lokendra Malik

Recently, the Supreme Court expressed displeasure when the People’s Union for Civil Liberties (PUCL) informed it through a PIL that the police was still registering FIRs under Section 66A of the Information Technology Act, 2000. This Section was declared unconstitutional in 2015 in Shreya Singhal vs Union of India.

The petitioner told the Court that several people were facing trials in different district courts in the country. “Amazing. That is all what I can say. Shreya Singhal is a 2015 judgment. What is going on is terrible,” observed Justice RF Nariman, who was heading the three-judge bench hearing the petition.

The top court issued a notice to the government and asked it to file its reply. Section 66A provides punishment for sending offensive messages through a computer or any other communication device like a mobile phone or a tablet. If found guilty and convicted under this provision, a person can be given a maximum of three years’ sentence and fine.

Several persons have been arrested under this Section and ultimately, the issue of its constitutional validity reached the Supreme Court in Shreya Singhal vs Union of India (2015). The Court had then declared it unconstitutional and struck it down.

In this landmark ruling, the Court observed that the provision under Section 66A was vague and violated the freedom of free speech and expression guaranteed to citizens under Article 19(1) of the Constitution and it was not protected by Article 19(2) that empowers the State to impose reasonable restrictions on the freedom of speech and expression. “It has been held by us that Section 66 A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1) (a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action,” the apex court had categorically observed in the case.

The Shreya Singhal judgment was widely appreciated as it corrected a major fault in the information technology law for regulating people’s activities on the internet. Admittedly, the Section had been misused severely by the police for arresting those with dissenting voices on internet platforms, particularly against those in power. In Maharashtra and West Bengal, the media had exposed this Section’s misuse by political forces and this helped to build a strong public opinion against it.

The Supreme Court’s 2015 ruling gave relief to thousands of internet users who considered it a major victory to exercise their freedom of speech and expression. It was a timely intervention by the Court and facilitated a fearless communication of ideas on internet platforms. It also mitigated the problem of unwanted arrests by law enforcement agencies that work at the behest of their political masters.

In this case, the apex court truly performed its role as a guardian of the Constitution and fundamental rights of the people. The verdict sent a strong message to the government to act by the principles of the rule of law. Undoubtedly, non-compliance with the judgment sends a wrong message to the people and undermines judicial authority.

When the Supreme Court declares a statutory provision unconstitutional, the provision loses its legal force immediately. Although there is no need for parliamentary action to delete the provision, Parliament can do so from the statute book as this brings more clarity to the statutory code of laws.

Under the constitutional scheme of things, Parliament cannot enact any law against the Constitution and if it does so, courts can examine the validity of such laws and strike them down. This is great power in the hands of the Supreme Court and High Courts and strengthens the mandate of the rule of law and constitutionalism in the country. Unfortunately, the police have slapped Section 66A on citizens in several cases even after it was scrapped. This is open disobedience and an insult to the authority of the Supreme Court. As per Article 144, the government is duty-bound to implement the verdict of the Supreme Court as its ruling becomes the law of the land as per Article 141. The government must bring the ruling of the Supreme Court to the knowledge of all law-enforcement agencies that deal with the IT Act so that the people don’t suffer unnecessarily.

After invalidation in 2015, Section 66A has been applied in thousands of cases. This is not the first time that the Supreme Court noticed this problem. In a PIL in 2019, the Court asked chief secretaries and DGPs of all states to publicise the Shreya Singhal judgment. But despite these directions, no effective action has yet been taken to implement the judgment of the Court by the police. States need to disseminate this judgment among all police officers and notify them about contempt provisions if they disobey the ruling of courts.

In the recent PIL, PUCL said that around 745 such cases were still pending in district courts in 11 states. The apex court was shocked to hear this and issued a notice to the government. Attorney-General KK Venugopal, who was also present in Court, said that even if the provision has been struck down by the Court in 2015, it was still there in the bare act. He said that only in the footnote was it mentioned that the Supreme Court has struck down this Section. “In any case, the police are not going to look at the footnote,” Justice Nariman said in a lighter vein. The A-G also suggested that in bare acts, it should be mentioned in brackets that the provision had been struck down by the Supreme Court.

Also Read: Delhi High Court directs journalist Saket Gokhale to remove his tweets against former Indian diplomat Lakshmi Puri

It is difficult to understand why the A-G did not suggest to the government that this Section be deleted from the statute book. What is the difficulty in deleting a provision from the statute book that has been declared unconstitutional by the top court? The government can easily do this if it has sincerity and commitment to follow the rule of law honestly. There is a need to circulate judgments of the Court to the police and other law-enforcement agencies and keep them updated about developments regarding penal provisions. Police officers need periodic legal training by law universities and academies in this regard. It will help them update their legal knowledge because the police is expected to have a fair knowledge and understanding of laws and judgments of the Courts and be made sensitive about human rights and dignity.

The time has come when the Court must lay down some guidelines to sensitise the police about court rulings and laws. In addition, all pending criminal proceedings under Section 66A should be quashed and some reasonable compensation given to the aggrieved persons.

—The writer is Advocate, Supreme Court of India

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