SECTION 66-A OF THE IT ACT: AN UNDEAD SCRAPED PROVISION

INTRODUCTION

Section 66A had been inserted into the Information Technology Act, 2000 via an amendment of 2008. It provided punishment for sending, through online communication services, grossly offensive messages.[1] However, owing to the vagueness of the language used in this provision, it had been criticized since its very introduction as being violative of the fundamental right to freedom of speech and expression guaranteed under Article 19(1) (a)[2] of the Constitution.

The provision was consequently struck down in 2015 in the landmark judgment of Shreya Singhal v. Union of India[3] wherein the Supreme Court held the law to be “vague”, “overbroad” and not falling within the reasonable restriction imposed on the freedom to speech under Article 19(2)[4] of the Constitution.  However, despite its scrapping off six years ago, Section 66A of the IT Act continues to be used by the police, trial courts, and even the High Courts to an extent to penalize innocent people.

ORIGIN

The advent of the twenty-first century saw the enactment of the Information Technology Act, 2000 that aimed at regulating the evolving sectors of e-commerce and e-transactions in India. A few years down the line, our country witnessed a surge in social media platforms and a need was felt to address the issues of cyber-crime and cyber-forensics that emanated from the said development.[5] The aforementioned resulted in the introduction of the Information Technology (Amendment) Act, 2008 that, inter alia, inserted Section 66A in the Statute. This Section penalized sending, through online communication, messages that were grossly offensive, menacing, or caused inconvenience, danger, obstruction, insult, criminal intimidation, enmity, hatred, etc.[6]

SHREYA SINGHAL v. UNION OF INDIA

While the object behind the insertion of Section 66A was to address the increasing instances of abuse and misuse of social media platforms, usage of vague terms like “grossly offensive”, “insult”, and “annoyance” that the government did not even attempt to define in the section or elsewhere, made it vulnerable to exploitation. The police officials were indirectly conferred with significantly wide discretion to penalize anyone under the said provision based on their highly subjective notion of what would qualify as offensive and what would not. The said irregularity made this provision a powerful tool in the hands of the executive to suppress political dissent.

The provision was ultimately challenged in 2012 in a writ petition filed by Shreya Singhal, a 21-year-old law student, following a controversial incident of the arrest of two women under Section 66A for merely expressing on the internet their unease with the decision to shut down  Mumbai on account of a prominent Shiv Sena leader’s death.[7]

In the judgment authored by Justice R. F Nariman, on behalf of former Justice J. Chelameshwar and himself, it was observed that Section 66A is violative of Article 19(1)(a), and not saved under Article 19(2), and Article 14[8] of the Constitution as it suffers from over-breadth and arbitrariness. It was held that terms like grossly offensive, menacing, annoying, inconvenient, dangerous, insulting, intimidatory were void for their vagueness as such vagueness encompasses even protected speech that is innocent in nature and thus, causes a chilling effect on the freedom of speech and expression.[9] The SC, therefore, struck down this arbitrary provision in its entirety, declaring it unconstitutional.

SECTION 66A: A LEGAL ZOMBIE[10]

Sadly, the law continues to be slapped on innocents as if it were never challenged and scraped off in its entirety. It is a very sorry state of affairs that a law that was declared ultra vires the constitution continues to prevent citizens from exercising their constitutionally guaranteed fundamental right to freedom of speech and expression.

 According to the statistics presented ) in a writ petition filed before the Supreme Court by the Peoples’ Union for Civil Liberties (hereinafter referred to as PUCL) the total number of cases registered under Section 66-A as of 2nd August 2021, stood at 1, 988 wherein 1, 307 cases were filed after the Shreya Singhal judgment and 681 before it.[11] The aforementioned brings out a double irony. It entails that Section 66- A, which should not be used to penalize anyone in the first place, is not only in continued operation but also the rate at which this struck-down provision is being slapped has increased manifold.

An instance of the arbitrary continuance of section 66A could be the one involving Rahat Khan, a 22-year old man, who was arrested in 2017 by the Greater Noida police under section 66 A of the IT Act for posting a morphed picture of Yogi Aditya Nath, the Chief Minister of the State of Uttar Pradesh.[12] After the much-publicized reporting of the case, the police converted the charges to section 66 of the same act.[13]

WHAT MAKES SECTION 66A UNDEAD?

A note must be taken of the fact that Section 66A of the Information Technology Act 2000 is not the sole provision that is in continued use even after having been struck down by the Apex court. Sections 303, 377, 497 of the IPC 1860 dealing with capital punishment for murder by a life convict, punishment for unnatural sex, and punishment for the offense of adultery, respectively, that have also been struck down by the Supreme Court through various landmark judgments are some of the other examples of undead scraped provisions.[14]

The moot problem lies in the negligence of the police and sometimes even judicial authorities. In an application filed by PUCL in the Supreme Court, K.K. Venugopal, the Current Attorney General of India, recently observed, “If a provision has been struck down, it is still there in the bare act. Only in the footnote, it is mentioned that the SC has struck down.”[15] The police officers negligently, and sometimes even intentionally, overlook the footnotes and thus end up violating the Court’s judgments.

RESPONSE OF THE SUPREME COURT

In 2019, taking cognizance of the serious issue of the illegal continuity in the usage of Section 66A, accepted the suggestion given by the then-Attorney General of India and passed an order directing all High Courts to make available the copies of the Supreme Court judgment in Shreya Singhal v. Union of India to all the District Courts within eight weeks.[16]

However, the instances of the invocation of this struck-down provision have not been discontinued to date. In the case of Nand Lal Singh Yadav vs State Of U.P.,[17] the petitioner approached the Allahabad High Court to quash an FIR lodged against him as recently as in April 2020 under Section 66A. The High Court relied upon the Shreya Singhal judgment and the PUCL order of 2019 to quash the FIR and express its amazement at the continued use of this unconstitutional section.[18]

Since the 2019 SC order dealt with regulating High Courts and Trial Courts insofar as the continued use of Section 66A was concerned, the PUCL has again approached the Apex Court this year and this time with a plea seeking formulation of guidelines against FIRs registered under this struck down provision by the UOI[19] so that the problem could be curbed at its roots.

The Supreme Court, in this petition that is currently being heard, has expressed its intention to make a “comprehensive proper order” to curb this malice as it cannot be allowed to continue.[20] In pursuance of passing an effective order, it has asked the petitioners to add states as parties since police and police order are state subjects.

SUGGESTIONS

Going by the popular legal maxim, ignorantia Juris non- excusat, meaning- ignorance of the law is no excuse, it can be stated that ignorance of law even by police officers cannot be entertained and every affordable action needs to be taken against them to prevent such mishap of justice. We need to understand that ignorance on the part of police officers leads to the harassment of citizens. To prevent such harassment many are forced to resort to self-censorship that defeats their inherent right to freedom of speech and expression. In the words of the Supreme Court, instances of the continued use of Section 66A that has been declared unconstitutional are “a shocking state of affairs”.

With the hope that the SC, which is currently hearing the writ petition filed by the PUCL, puts this ignominy to the citizens to an end by passing a comprehensive order on the same, let us examine some of the ways in which this could be done. 

The organization of police training camps at regular intervals to inform the police officers about such developments is one of the basic ways of prevention of registration of FIRs under Section 66A or any provision declared unconstitutional by the SC for that matter. Further, the Attorney General recently suggested the insertion of a bracket beside the struck down provision informing the readers about the same.[21] This could be yet another useful step in ensuring the aforementioned.

Author(s) Name: Sakshi Srivastav (Rajiv Gandhi National University of Law, Patiala)

References:

[1] Information Technology Act 2000, s 66A

[2] The Constitution of India, Art. 19(1)(a)

[3]  Shreya Singhal v. UOI AIR 2015 SC 1523

[4] The Constitution of India, Art. 19(2)

[5] Sonalakshi Naidu, ‘How A Bill Becomes A Zombie? The Journey of Section 66A of the Information Technology Act, 2000’ ( Internet Freedom Foundation, 18 May 2020)  <https://internetfreedom.in/how-a-bill-becomes-a-zombie-the-journey-of-section-66a-of-the-information-technology-act-2000/> accessed 6 August 2021

[6] Information Technology Act 2000, s 66A

[7]  Arvind Gunasekar, ‘”Shocking”: Supreme Court Notice To Centre On Cases Under Scrapped Law’ NDTV (All India, 5 July 2021) <https://www.ndtv.com/india-news/shocking-supreme-court-notice-to-centre-over-filing-of-more-than-1-000-cases-under-section-66a-of-it-act-scrapped-by-it-in-2015-2479445> accessed 7 August 2021

[8] The Constitution of India, Art. 14

[9] Shreya Singhal v. UOI AIR 2015 SC 1523

[10] Abhinav Sekhri and Apar Gupta, ‘Section 66A and Other Legal Zombies’ (2018) Internet Freedom Foundation Working Paper No. 2/2018, 3 <https://ssrn.com/abstract=3275893> accessed 6 August 2021

[11] Legal Correspondent, ‘SC questions States on cases under 66A’ The Hindu (Lucknow, 3 August 2021) 1

[12] Vinit, ‘Offensive Facebook Post on Yogi: Rahat Khan’s Bail Plea Will be Heard on Monday’ Hindustan Times (Delhi, 25 March 2017) <https://www.hindustantimes.com/noida/offensive-facebook-post-on-yogi-rahat-khans-bail-plea-will-be-heard-on-monday/story-PBQD9y05GB9iXui2veWYgJ.html> accessed 7 August 2021

[13] Nimisha Jaiswal, ‘Are Police Misusing Laws to Punish Social Media Users? NDTV Investigates’, NDTV (All India, 12 December 2017) <https://www.ndtv.com/india-news/are-police-misusing-laws-to-punish-social-media-postsndtv-investigates-1786515> accessed 8 August 2021.\

[14] R.K Vij, ‘Disable Unconstitutional Provisions’ The Hindu ( Lucknow, 14 July 2021) 7

[15] Srishti Ojha,‘Shocking’ : Supreme Court On Registering FIRs Under Struck Down Section 66A IT Act; Issues Notice On Plea Seeking Action’ (Live Law, 5 July 2021) <https://www.livelaw.in/top-stories/section-66a-it-act-supreme-court-shocked-at-firs-being-registered-under-struck-down-provision-pucl176881?infinitescroll=1> accessed 8 August 2021

[16] Peoples’ Union For Civil Liberties vs. Union of India and Others, W.P. (Crl) No.199/2013

[17] Nand Lal Singh Yadav vs State Of U.P. CRIMINAL MISC. WRIT PETITION No. 6684 of 2020

[18] Live Law News Network, ‘Amazed That FIRs Under ‘Unconstitutional’ Section 66A IT Act Are Still Being Registered In UP: Allahabad HC Quashes FIR’ (Live Law, 12 September 2020) <https://www.livelaw.in/news-updates/allahabad-hc-quashes-fir-under-section-66a-it-act-162838?infinitescroll=1> accessed 8 August 2021

[19] Srishti Ojha,66A IT Act- ‘Primary Responsibility To Implement Shreya Singhal Judgement Rests With States : Centre Tells Supreme Court’ ( Live Law, 1 August 2021) <https://www.livelaw.in/top-stories/supreme-court-66a-it-act-shreya-singhal-judgment-implementation-pucl-police-178598?infinitescroll=1> accessed 8 August 2021

[20] Srishti Ojha,“This Cannot Continue”- Supreme Court Issues Notice To States, UTs, High Court Registrars On Plea Against Continued Use Of 66A IT Act’ (Live Law, 2 August 2021) <https://www.livelaw.in/top-stories/66a-it-act-supreme-court-shreya-singhal-judgment-continued-use-pucl-contempt-police-judiciary-178623?infinitescroll=1> accessed 8 August 2021

[21] Ibid