'Shocking': SC on Section 66A Still Being Used to Book People

Six years ago, the Supreme Court had struck down the provision as unconstitutional and a violation of free speech.

The top court had ruled Section 66A IT Act in 2015.

(Photo: iStockPhoto)

The Supreme Court was taken aback on Monday, 5 July, after learning that people are still being booked and tried under Section 66A of the Information Technology Act, even six years after the top court struck down the provision as "unconstitutional and a violation of free speech".

A bench, headed by Justice RF Nariman and comprising Justices KM Joseph and BR Gavai, said: "It is still going on, amazing... What is going on is terrible, distressing."

The bench noted that the judgment in the Shreya Singhal case was delivered on 24 March 2015. Section 66A of the IT Act, 2000, made posting "offensive" comments online a crime punishable by a jail term of three years.

Justice Nariman noted, "Please read my dissent in the Sabarimala case for Article 144".

The top court's observation came on a plea by NGO PUCL seeking a direction to the Centre to issue advisory to all police stations against registering of FIR under Section 66A of the Information Technology Act, which was declared unconstitutional by the top court on 24 March 24 2015.

Senior advocate Sanjay Parikh, representing the NGO, submitted that before Section 66A was struck down, there were 687 cases under it.

"However, after the section was struck down, there are as many as 1,307 cases...It is shocking."

Sanjay Parikh, Senior Advocate

Attorney General Venugopal, appearing for the Centre, contended that even if it is struck down by the division bench, Section 66A is still there. He added that when police have to register a case, the section is still there and it only has a footnote that the top court has struck down. "There has to be a bracket in 66A with words struck down," said the AG.

The bench responded, "You file a counter as it is a shocking state of affairs."

After hearing the arguments, the top court issued a notice and scheduled the matter for further hearing after two weeks.

The NGO argued that Section 66A of the IT Act is still in use not only within police stations but also in cases before trial courts across the country.

On 24 March 2015, in a judgment, the top court had held, "Section 66A is struck down in its entirety being violative of Article 19(1)(a) (freedom of speech) and not saved under Article 19(2) (reasonable restrictions)."

The NGO, in its plea, said: "The findings of the Zombie Tracker Website reveal that as on 10 March 2021, as many as a total of 745 cases are still pending and active before the districts courts in 11 states, wherein the accused persons are being prosecuted for offences under Section 66A of the IT Act."

The plea urged the top court to direct the Centre to gather data in connection with the FIRs or investigations where Section 66A has been invoked as well as pendency of cases in the courts throughout the country. The NGO contended that the top court should issue directions to all the High Courts to ensure due compliance of the judgment.