‘Shocking, terrible’ that people still booked under scrapped Section 66A of IT Act, SC says

An application filed before the top court by People’s Union for Civil Liberties claimed 745 cases were pending trial in courts in 11 states under the now-defunct Section 66A of IT Act.

File photo of the Supreme Court of India | Manisha Mondal | ThePrint

New Delhi: As many as 745 cases being tried under the now defunct Section 66A of the Information Technology (IT) Act are still pending before various trial courts in 11 states of the country, the Supreme Court was informed Monday. The top court had declared Section 66A of the IT Act unconstitutional six years ago.

In an application filed before the top court, civil rights group People’s Union for Civil Liberties (PUCL) claimed prosecution under the scrapped law continued to be in use not only within police stations, but also in cases before trial courts across India. In some cases, trial courts went ahead with framing charges under the defunct IT provision, even after taking cognisance of the court’s 2015 judgment, the SC was told.

Presenting the data before a bench led by Justice R.F. Nariman, PUCL counsel, senior advocate Sanjay Parekh sought the court’s intervention to have some kind of method to handle the matter “as people were suffering”.

Attorney General K.K. Venugopal, who appeared for the Centre, said that though the section is mentioned in the IT Act, the footnote makes it clear that the provision is scrapped. “It appears that the police officer registered the case without going through the footnote,” the AG said. He suggested the fact that the law has been scrapped should be mentioned in a bracket right after the section.

The bench was, however, shocked on learning about the ongoing prosecutions under an outlawed provision. “Don’t you think this is amazing and shocking? Shreya Singhal judgment is of 2015. It is really shocking. What is going on is terrible,” the bench said, asking the AG to file its response to PUCL’s application in two weeks.

Section 66A of the IT Act punished online communication considered as “grossly offensive, menacing” that caused “annoyance, inconvenience, injured, intimidated or caused enmity and hatred”. The Supreme Court in its 2015 judgment in the Shreya Singhal vs Union of India case held the law as arbitrary and struck it down.

‘Abuse of defunct provision did not cease’

PUCL lawyer Aparna Bhat told ThePrint that while the SC judgment had barred investigating agencies from registering fresh cases under the law, it also mandated suspension of all prosecutions pending before the trial court.

The widespread abuse of the now-defunct IT provision did not cease despite the SC in 2019 reiterating its 2015 verdict in the form of directions that included all High Courts to make available a copy of the Shreya Singhal judgment to district judges so that cases (being tried under the defunct law) can be terminated, the PUCL petition claimed. Similarly, chief secretaries of all states had been directed to sensitise the police departments by sending copies of the judgment to the Director General of Police in each state.

The PUCL wants the central government to place on record the present situation regarding invocation of Section 66A by the police and pending trials in all states, including the 11 for which it has already provided the figures. Continued use of Section 66A IT Act is a direct violation of the fundamental rights to free speech and expression, it said.

Cases where charges framed solely under Section 66A

PUCL cited four examples to illustrate the violation, causing “various kinds of harm on account of the continued prosecutions.”

In a case from Nashik, it was noted, the additional chief judicial magistrate had framed charges solely under section 66A of the IT Act on 28 February 2020. The alleged offensive message was sent in 2010 and now the case is at the trial stage.

From Delhi, PUCL attached orders of a court in Tis Hazari where the judge issued a non-bailable warrant against an accused even on being informed by the police counsel about the SC judgment striking down Section 66A. The FIR in this was registered in 2013 and again only under section 66A of the IT Act. The matter was listed for hearing on several dates after the 2015 judgment, including as recently as 28 January 2021.

In Karnataka, the petition stated, a judge continued to hear a case registered under section 295A of IPC (hurting religious feelings) and section 66A of the IT Act, ignoring the SC verdict. The matter finally ended in the acquittal of the accused only on 6 January 2021.

A court in Chandernagore in West Bengal gave directions to the police to investigate a matter under Section 66A in an FIR registered under Sections 500 (defamation) and 505 (statements conducing to public mischief) of the IPC. This order was issued on 4 June 2016, almost a year after the Shreya Singhal verdict, according to the PUCL petition. Even though the police chose not to file a charge sheet in the case, the matter is still pending before the trial court.

Maharashtra tops the list of violators

In the absence of any official data by any government agency, including the National Crime Records Bureau (NCRB), PUCL has relied upon the data regarding the 11 states collated by the think-tank, Internet Freedom Foundation (IIF).

The IIF gathered its data using the e-Courts portal, which is a dynamic website that records the status of pending cases in all district courts and high courts.

The 11 states where it found cases still being tried under the defunct Section 66A of the IT Act are Andhra Pradesh, Assam, Delhi, Jharkhand, Karnataka, Maharashtra, Rajasthan, Telangana, Tamil Nadu, Uttar Pradesh, and West Bengal.

According to the petition, 1,307 cases were registered under the section in these 11 states after the pronouncement of the Shreya Singhal judgment in March 2015. Maharashtra tops the list of violators with 381 cases, followed by Jharkhand with 291 and Uttar Pradesh at 245.

Similarly, the maximum number of cases pending trial under Section 66A in courts is the highest in Maharashtra, which is 196. UP has 116 cases pending in its courts, while Jharkhand has 99 and Rajasthan 77.

(Edited by Poulomi Banerjee)