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SC to Centre: Why the continued use of the dead Section 66A of the IT Act?

The Supreme Court has issued a notice to the Centre in the application filed by People’s Union for Civil Liberties (PUCL) about the continued use of Section 66A of the Information and Technology Act, reports PTI.  In its PIL, PUCL said that 48 separate FIR cases were registered under the Section 66A of the IT Act which was struck down by the Court in March 2015.

The apex court said that the responsible officials for this will be arrested if the Court’s order of scrapping the Section 66A of IT Act is violated.

Sanjay Parikh, the petitioner’s lawyer, told MediaNama, “The judgement was already delivered where Section 66A was struck down. Once you strike down the provision then you can’t prosecute people for that particular offence. So, we had given the collected information and said that people are being charged under Section 66A. And we had collected some 48 cases along with the petition.”

Parikh added that, “We had asked that some direction should be given to the Chief Secretaries, all the authorities and the police that this has been struck down and people should not be harassed. The other one was to send a copy to all the High Courts. The High Court can send it to all the respective district judges. So somebody remains in jail for 40 days and then applies (for bail) and then it comes out that the provision has been struck down. This was the main thing. The non-implementation of the judgement. The court issued notice, gave four weeks for reply and one week for rejoinder.

The judgment

In 2015, the Supreme Court ruled on a series of cases challenging the IT Act, including Section 66A (3 years in prison for offensive statements online), Section 79 and its rules (forcing intermediaries to take down online content) and Section 69 (blocking of online content).

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The bench, consisting of Justices Chelameswar and Rohinton Fali Nariman struck down Section 66A of the IT Act, ruling against the Central government, which had defended the section. Reading the judgement, Justice Nariman said that there are “three aspects of freedom of expression: discussion, advocacy and incitement. Only when discussion and advocacy reach the level of incitement, is Article 19 (2) (of the Constitution of India), which puts reasonable restrictions on freedom of speech, applicable.

He also said that Section 66A made no distinction on whether the communication had any impact on public order. The clear and present danger test and the public disorder test ought to be a prerequisite. What may be offensive to one may not be to another, what may be annoying to one may not be to another. That is what renders 66a unconstitutional and vague. “Governments come and governments go, the law persists. And the law must be judged on its own merit. 66A is invalid and it cannot be saved even if the government says it wont abuse the law,” he added.

The Court also struck down section 118 (D) of the Kerala Police Act on the same grounds.

No data on Section 66A since 2016

Last month, the Ministry of Electronics, Information and Technology had informed the Lok Sabha that the National Crime Records Bureau (NCRB) has not been collecting data on section 66A of IT Act since 2016 “as per the data maintained by National Crime Records Bureau (NCRB), a total of 2,423 persons in 2014 and 3,137 persons in 2015 were arrested under combined sections of 66 & 66A of IT Act.”

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