Calling a "matter of serious concern" the registration of First Information Reports (FIRs) under Section 66A of the Information Technology Act (IT Act) it had scrapped in 2015, The Supreme Court on Tuesday, 6 September, asked the chief secretaries of states concerned to take back the cases within three weeks.
Under the scrapped section 66A of the IT Act, a person posting offensive content could be imprisoned for up to three years and also fined.
Terming liberty of thought and expression "cardinal", the top court had on 24 March 2015 done away with the provision, saying "the public's right to know is directly affected by Section 66A of the Information Technology Act”.
Later, it took a serious note of the use of the scrapped provision by the law enforcement agencies and issued notices to states and high court registries.
“It is the matter of serious concern that despite an authoritative pronouncement of this court by which the validity of the provision was set aside, the cases are still being registered,” a bench comprising Chief justice Uday Umesh Lalit and Justice S Ravindra Bhat said on Tuesday.
The top court directed the chief secretaries of the states concerned to take remedial measures as early as possible and complete the exercise of taking back the cases in three weeks.
“In the circumstances, we have asked Zoheb Hossain, the counsel for the Centre, to communicate with the concerned chief secretaries of the respective states where the offences are still being registered or stand registered and impress upon them to take remedial measures as early as possible,” it said.
The court said the counsel for the Central government, who will be free to communicate with the chief secretaries for seeking relevant information, would be assisted by lawyers representing state governments.
“Let the entire exercise be completed in three weeks from today. List the matter for consideration after three weeks,” it ordered.
Thousands of Cases Registered Under Struck Down Provision
The bench was hearing a miscellaneous application of NGO 'People's Union for Civil Liberties' (PUCL) alleging prosecution of perople under the scrapped provision.
Senior advocate Sanjay Parikh, appearing for PUCL, submitted that Jharkhand has said 40 cases under the provision are pending before courts in the state. In Madhya Pradesh, the state machinery has taken cognizance of 145 cases and out of these, 113 are pending in courts.
The top court had on 5 July last year taken note of the plea of the NGO, saying it was “amazing” and “shocking” that people are still being booked under the provision which was trashed in 2015. Later on 2 August 2021 it had issued notices to all states, Union Territories and high courts on the plea.
The NGO claimed that despite express directions of the court in 2019 that all state governments sensitise police personnel about the 24 March 2015 judgement, thousands of cases have been registered under the section.
Attorney General KK Venugopal, appearing for the Centre, had earlier said on perusal of the IT Act it can be seen that Section 66A features in it, but in the footnote it is written that the provision has been scrapped.
The NGO said, “That, shockingly, despite the order dated 15 February 2019 and steps taken towards compliance thereof, the Applicant discovered that Section 66A of the IT Act has continued to be in use not only within police stations but also in cases before trial courts across India”.
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 15 February 2019, the top court had directed all state governments to sensitise their police personnel about its 24 March 2015 verdict, which had scrapped Section 66A of Information Technology Act, so people are not unnecessarily arrested under the struck-down provision.
It had also asked all high courts to send copies of the verdict to all trial courts to avoid people being prosecuted under the scrapped provision.
The first PIL on the issue was filed in 2012 by a 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 challenged the constitutional validity of Section 66A of the Act.
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