No Citizen Should be Prosecuted Under Section 66A of the Information Technology Act: Supreme Court

Once again, the Supreme Court reiterated that no citizen can be prosecuted under section 66A of the Information Technology (IT) Act, 2000, which it had scrapped way back in 2015, reported LiveLaw. Under the annulled section, a person posting offensive content could be imprisoned for up to three years and also fined. A bench headed by the Chief Justice of India (CJI) U.U. Lalit said in all cases where citizens are facing prosecution for alleged violation of section 66A of the Act, the reference and reliance upon the said provision shall stand deleted. This order was passed on Wednesday, October 12.

Emphasising that that liberty of thought and expression is of “cardinal” significance, the top court had on March 24, 2015 done away with the provision, saying “the public’s right to know is directly affected” by Section 66A of the IT Act.

“We direct all Director General of Police as well as Home Secretaries of the states and competent officers in Union Territories to instruct the entire police force in their respective states/Union Territories not to register any complaint of crime with respect to alleged violation of section 66A,” said the bench, also comprising Justices Ajay Rastogi and S.R. Bhat.

The apex court also clarified that this direction shall apply only with respect to offences punishable under section 66A, and if in the crime in question, other offences are also alleged, then the reference and reliance upon section 66A alone shall be deleted.

The bench  further also observed the counsel appearing for the Centre has placed on record an all-India status report with regard to pending cases under section 66A. It observed the information given in a tabular form does suggest that despite the issue regarding the validity of section 66A of the Act having been decided by the apex court, a number of criminal proceedings still rely upon this provision and citizens are still facing prosecution.

“Such criminal proceedings, in our view, are directly in the teeth of the directions issued by this court in Shreya Singhal vs Union of India (March 2015 judgment) and consequently, we issue following directions,” the bench said.

“It needs no reiteration that section 66A of the 2000 Act has been found by this court in Shreya Singhal vs Union of India to be violative of the Constitution and as such, no citizen can be prosecuted … [under] said section 66A,” it said.

The bench also said whenever any publication, whether government, semi-government or private, about the IT Act is published and section 66A is quoted as part of the statute book, the reader must adequately be informed that section 66A has already been pronounced upon by the apex court to be violative of the constitution.

Calling a “matter of serious concern” the registration of FIRs under section 66A of the Act which was scrapped in 2015, the apex court had last month asked the chief secretaries of the states concerned to take back the cases within three weeks.

The bench was hearing a miscellaneous application of the civil liberties organisation, People’s Union for Civil Liberties (PUCL) alleging prosecution of people under the scrapped provision. PUCL claimed that despite express directions of the court in 2019 that all state governments sensitise police personnel about the March 24, 2015 judgment, thousands of cases have been registered under the section.

It sought direction to the Centre to collect all data/ information regarding FIRs/investigations where section 66A has been invoked as well as pendency of cases in the courts throughout the country where proceedings under the provision are continuing in violation of the 2015 judgment.

On February 15, 2019, the top court directed all state governments to sensitise their police personnel about its March 24, 2015 verdict, which had scrapped section 66A of the Act, so people are not unnecessarily arrested under the struck-down provision.

The first PIL on the issue was filed in 2012 by law student Shreya Singhal who sought an amendment to section 66A of the Act after two girls – Shaheen Dhada and Rinu Shrinivasan – were arrested in Palghar in Maharashtra’s Thane district. While one had posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death, the other had ‘liked’ it. PUCL was also one of the petitioners in the earlier case and had challenged the constitutional validity of Section 66A of the Act.