Over three years after it struck down Section 66A of the Information Technology Act as unconstitutional, the Supreme Court on Monday said it was shocked to hear that authorities still continue to book people under the now extinct and draconian provision.
A Bench led by Justice Rohinton F. Nariman, who wrote the judgment in March 2015 upholding online free speech against Section 66A, said “strict action” would follow if the claims in the petition filed by the People’s Union for Civil Liberties (PUCL) were found true.
The court ordered the Centre to respond to the petition in four weeks.
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The PUCL said Section 66A, which restricted free expression online, continued to survive and occasionally found a place in the FIRs registered by the police in complete contravention of the Supreme Court judgment in the Shreya Singhal case.
The judgment had found that Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution. The entire provision was struck down by the court.
The petition said the judgment rendered Section 66A extinct from the very date of its insertion into the IT Act, i.e. October 27, 2009.
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“Further, the judgment and final order in the Shreya Singhal case had rendered all investigations, prosecutions, and convictions based on Section 66-A IT Act illegal, and it forestalled any use of Section 66-A IT Act after the decision was rendered.
“Despite the clear and unequivocal holding of this court in the Shreya Singhal case, Section 66A of the IT Act continues to be applied in the legal system,” the petition said.
It said a recent working paper by the Internet Freedom Foundation demonstrated that pending prosecutions under Section 66A had not been terminated, and further it continued to be invoked by police across India in FIRs registered after the 2015 judgment.
The petition said there had been a huge communication gap at the ground level and many officials may not even know about the Supreme Court verdict.
It said trial courts and prosecutors were not actively implementing the verdict and the burden of terminating illegal prosecutions based on Section 66A fell on the accused persons.
“Thus, compliance with the Constitution has been made primarily dependent on the means of individual accused persons, potentially rendering justice beyond the reach of accused persons without the means to afford quality legal counsel…It is humbly submitted that the harm emanating from this state of affairs is enormous,” the petition said.
These unwarranted prosecutions amount to wastage of precious public resources in a criminal justice system which is already reeling under heavy pendency.
The petition urged the court to direct Chief Secretaries of States and Union Territories and Directors- General of Police to circulate or inform police stations and officials about the March 2015 verdict. In turn, the State High Courts should bring the judgment to the notice of district courts within their jurisdiction to prevent failures of justice.