Author: Saloni Somya
Institute of Affiliation: Bharati Vidyapeeth New Law College, Pune
This article explains how a law becomes “draconian”. A law that was held unconstitutional by the Supreme court to protect the Right to freedom of speech and expression after a PIL was filed by Shreya Singhal challenging the constitutionality of the section has life after judicial death. It is like zombie dead … but not really. This article shows that section 66A is still being used by the police to book people under this provision and how there is a signal failure on the part of different branches of government. How peoples fundamental rights are being violated and have to suffer just for expressing their views and under the law which dose not exist anymore. The issues related to section 66A which led to its removal Aare discussed. This article highlights key questions about the gap between judicial decisions and real-life outcomes. What is the current status of section 66A is discussed in this article.
Section 66A, Freedom of Speech and Expression, Zombie law, Information Technology Act, 2000,
The legislature’s aim in enacting legislation has always been to keep people safe from criminal activity. However, some of the laws enacted by the legislative body may be used for personal gain by some individuals. Criminals often take advantage of legal loopholes to impede justice or harass victims and section 66A is one such section which was arguably the most misused of all. On 24th March 2021, marked the sixth anniversary of the Supreme Court of India landmark ruling in the Shreya Singhal v Union of India [AIR 2015 SC 1523] case where it held Section 66A of the Information Technology Act 2000, as constitutionally invalid. One of the most cherished fundamental rights granted by our Constitution is freedom of expression. This section used to affect the freedom of speech and expression online and was ultra vires of the constitution, therefore it was scrapped by the Supreme Court. But even after declaring section 66A unconstitutional, it is still being applied by police and lower courts. This is still being invoked for legal prosecution across the country. This shows how the government failed in disseminating information in their own institution and convey information to their branch. Because of the failure on the part of the government people are being tormented. Recently 27-year-old Souradeep Sengupta from Assam spent 3 days in jail in March 2020 over a Facebook post against Narendra Modi for being accused under Section 66A of the Information Technology Act, a ” zombie law” which was struck down in 2015.
WHAT IS SECTION 66A OF THE INFORMATION TECHNOLOGY ACT, 2000
In 2008, through an amendment Section, 66A was inserted in Information Technology Act, 2000. The bill was passed in both the houses without any discussion. Section 66A was aimed to deal with new forms of cyber crimes against women, especially to punish those sending ‘vulgar mobile phone SMSes to women’. Anyone who uses a computer resource or communication device to disseminate ‘grossly offensive’ or’ menacing’ information is punishable under Section 66A of the Information Technology Act of 2000. Sending an ‘electronic mail message’ to cause annoyance or inconvenience, or to deceive or mislead the receiver about the communication’s origin, was made illegal under Section 66A and conviction can fetch a maximum of 3 years in jail.
WHAT ARE THE ISSUES RELATED TO SECTION 66A
- It was being violative of Articles 19 (freedom of speech and expression) and 21 (right to life) of the Constitution.
- The expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offense or not to have committed an offense.
- Since the enactment of Section 66A, the section’s extensive powers have repeatedly being misused to suppress opposition
- It gave policemen the right to make arrests based on what they considered “offensive” or “menacing” or to cause annoyance, inconvenience, or other forms of harassment.
- The law is said to have a “chilling impact” on the right to freedom of expression.
SHREYA SINGHAL VS UOI CASE – A RAY OF HOPE
In the Indian legal system, the landmark case of Shreya Singhal v Union of India (2015) is very crucial. In 2012, two girls were arrested by Mumbai police for criticizing a bandh imposed in the aftermath of Shiv Sena president Bal Thackery’s death. The girls were arrested after they posted comments on Facebook. The arrests attracted widespread public protest and the cases against them were later closed by the police. Police said that it violated their right to freedom of speech and expression under Section 66A of the Constitution.
Following the arrest of two girls, Shreya Singhal, a law student, challenged the “draconian law” in the Supreme Court of India in 2012. One girl wrote the post and the other merely liked the post. The court said: “Every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.”
It was determined that the interpretation was subjective. As a result, the court ruled that 66A is a violation of Article 19 (1)(a) the right to freedom of speech and expression and that it is not protected by reasonable restrictions given under Article 19(2). This provision was vague and arbitrary in nature, therefore, struck down by the court.
RETURN OF THE ZOMBIE- 66A HAS LIFE AFTER JUDICIAL DEATH
It was a moment of celebration for advocates of free speech when the Supreme Court struck down Section 66A of the Information Technology Act, 2000. The story of section 66A should have ended here but in 2018, a research conducted by Abhinav Sekhir and Apar Gupta, which pointed out the continuous use of section 66A and called it a ” Legal Zombie”.
“Right from the police station, to trial courts, and all the way to High Courts, one finds that Section 66-A is still in use despite it being denied a place on the statute book,” the study had said.
In January 2019 People’s Union for Civil Liberties (PUCL), who was the original petitioner in the Shreya Singhal case, filed a petition in the apex court. The petition was filed based on data collected by the Internet Freedom Foundation, in collaboration with CivicData Lab, which showed that 745 cases are still pending in the district court of 11 states. The data showed that the law is still invoked by the police across the country. The Directions were given by the Supreme Court to provide copies of the scrapping section 66A judgment to every district court via the concerned High Court and directed state chief secretaries and director generals, that police personnel should be sensitized about March 24, 2015 judgment.
Two police personnel were castigated by the Karnataka High Court and were imposed with Rs. 10,000 as fine for registering FIR under this scrapped law.
Recently in 2021 PUCL again move to SC court against the continuous use of section 66A even after the above order ( Feb 15, 2019) and for directions to ensure implementation of the Court’s decision. PUCL said that after the legislation was repealed, at least 22 new cases under Section 66A had been filed in various states, and that previous cases had not been dismissed. According to the appeal, there was a significant communication breakdown in transmitting the Supreme Court decision to ground-level police personnel. The petitioner said, that many of them were unaware that Section 66A had been ruled down by the Supreme Court, even trial courts were not properly enforcing the judgment, implying that even lower court judges were unaware of the landmark Supreme Court decision. The Supreme Court bench, chaired by Justice RF Nariman, termed the continuous usage by law enforcement agencies a “shocking” and ” terrible”. A notice was issued by the court to the Union government asking to file a counter-affidavit within four weeks.
States were asked by the Centre not to register new cases under this repealed provision and to withdraw any such case that may have been filed. The Union Ministry of Home Affairs (MHA) requested States and Union Territories (UTs) to direct police under their jurisdiction not to register any cases under this provision.
According to a report by NDTV, have shown that Maharashtra (381), followed by Jharkhand (291), Uttar Pradesh (245), and Rajasthan (192) have registered majority of these cases.
The reason behind calling this provision “draconian” is because several innocent people were arrested and triggered public outrage over its repeal. This jeopardizes the Supreme Court’s freedom of expression, rule of law, and institutional integrity. No one shall be subjected to or incur any adverse consequences as a result of exercising his fundamental rights as guaranteed by Article 21 of the Constitution. In this day and age, when information spreads like wildfire, the Indian police appear to be unaware, that Section 66A does not exist in the law books and that it is illegal, if not downright contemptuous, to charge and arrest people under this non-existent section. Why is it so difficult for them to know and follow the legislation laid by the supreme court? If the police are themselves not aware of the law how would they maintain law and order in our country? Even after section 66A held unconstitutionally it was there in the statute book because it is can not be removed automatically. If parliament does not approve an enabling amendment to give effect to the Supreme Court’s decision, the unlawful clause will remain in the text. This shows lethargy on the part of Parliament in carrying out the Supreme Court’s ruling has resulted in the loss of liberty and harassment of numerous persons for exercising their right to freedom of speech and expression. And Finally, the Supreme Court’s supervisory role in ensuring that lower courts were informed proved unsuccessful. The Court had also failed to give specific instructions on how the verdict should be disseminated.
- “Spooked by the Zombie? Ministry of Home Affairs issues notification directing all S.66A cases to stop” Internet Freedom Foundation ( 15 July 2021) <internetfreedom.in/spooked-by-the-zombie-ministry-of-home-affairs-issues-notification-directing-all-s-66a-cases-to-stop/ > accessed 25 July 2021
- Abhinav Sekhri & Apar Gupta, “ Section 66A and other legal zombies” (2018) 2 IFF <https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2015/06/Sec.-66A-and-Other-Legal-Zombies.pdf> accessed 25 July 2021
- Apoorva Mandhani, “Continued Use of Unconstitutional Section 66A IT Act: Sc Assures Strict Action Against Officials, Issues Notice To Centre” Live Law ( 7 Jan 2019) <https://www.livelaw.in/top-stories/abuse-of-section-66a-unconstitutional-sc-141911> accessed 29 July 2021
- “How A Bill Becomes A Zombie? The Journey of Section 66A of the Information Technology Act, 2000” Internet Freedom Foundation ( 18 May 2020) <internetfreedom.in/how-a-bill-becomes-a-zombie-the-journey-of-section-66a-of-the-information-technology-act-2000/ > 24 July 2021
- Shobha Gupta, “ Section 66A: When a celebrated judgment cannot be implemented by the police” Bar and Bench ( 30 June 2019)