No more prosecutions under Section 66A, says Supreme Court

The draconian Section of the Information Technology Act was declared unconstitutional by the court seven years ago

October 12, 2022 10:30 pm | Updated 10:30 pm IST - NEW DELHI

The court found it both “distressing” and “terrible” that the police had continued to pick out people and prosecute them under Section 66A.

The court found it both “distressing” and “terrible” that the police had continued to pick out people and prosecute them under Section 66A. | Photo Credit: The Hindu

The Supreme Court on Wednesday ordered States and their police forces to stop prosecuting free speech on social media under Section 66A of the Information Technology Act which was declared unconstitutional by the court in a judgment seven years ago.

The court found it both “distressing” and “terrible” that the police had continued to pick out people and prosecute them under the draconian Section regardless of the fact that the highest court in the country had struck down the law as “vague” and “chilling”.

A Bench led by Chief Justice of India U.U. Lalit directed “all Directors General of Police as well as Home Secretaries of the States and competent officers in Union Territories to instruct their entire police force in their respective States/Union Territories not to register any complaint of crime with respect to alleged violation of Section 66A”.

However, the court clarified that this direction would apply only to a charge under Section 66A and not extend to other offences in a case.

The court, in order to make sure that no trace of doubt was left that Section 66A had been wiped off the statute book, directed that law books should contain a short note that the provision was struck down by the Supreme Court as violative of the Constitution.

Police powers

In March 2015, the Supreme Court had found the police powers of Section 66A too wide with scant respect for individual liberty and free expression on the Internet.

“Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total,” Justice (now retired) Rohinton F. Nariman had written in his 2015 judgment for the court.

The judgment had come on the basis of a petition filed by law student Shreya Singhal, who had highlighted cases of young people being arrested and charged under the ambiguous provision for their social media posts.

Section 66A had prescribed three years' imprisonment if a social media message caused "annoyance" or was found "grossly offensive". The Supreme Court had concluded the provision to be vague and worded arbitrarily.

Three years after the judgment, an NGO, People's Union for Civil Liberties, represented by senior advocate Sanjay Parikh and advocate Aparna Bhat, had drawn the court's attention to the violations. The NGO’s petition had first come up before Justice Nariman’s court. The judge had said in court that he was “shocked” by the blatant violation on the part of the police. The Centre had maintained a distance by filing an affidavit saying that “prevention, detection, investigation and prosecution of crimes and capacity-building of the police are primarily the responsibility of the States". But the court had asked the Centre to submit a tabulated list of the cases in which people were booked under Section 66A.

Mr. Parikh, in a hearing last year, had submitted that as many as 745 cases were still pending and active before the district courts in 11 States under Section 66A.

On Wednesday, Chief Justice Lalit examined the list of such cases provided by the Centre and confirmed that a number of prosecutions under Section 66A were indeed pending across various parts of the country.

“Such criminal proceedings, in our view, are directly in the teeth of the directions issued by this court in Shreya Singhal judgment,” the apex court said in the order, annulling all prosecutions under Section 66A.

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