The continued practice of registering cases under Section 66A of the Information Technology Act, despite it being scrapped by the Supreme Court six years ago, is quite shocking. What is more distressing is that there has been a fivefold increase in the number of police cases filed invoking this provision since it was quashed in 2015. No wonder that the Supreme Court has expressed displeasure over the development. The apex court’s ruling must be treated as final and all the judicial and non-judicial authorities who exercise powers over citizens must abide by the SC’s order on Section 66A, declaring the provision as unconstitutional. The SC judgment had barred investigating agencies from registering fresh cases under the law and mandated suspension of all prosecutions pending before the trial court. Alarmingly, as many as 745 cases, being tried under the now defunct section, are still pending before trial courts spread across 11 States. It has also emerged that in some cases, trial courts went ahead with framing charges under the scrapped IT provision, even after taking cognisance of the apex court’s judgment. The controversial section prescribed punishment for sending messages through computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail. The registration of cases under the section is bizarre and could not have continued without the indirect support of the top state authorities.
In 2019, the SC had asked the chief secretaries and director generals of police of all States and Union Territories to publicise the judgment scrapping the section. But the Act continued to be used to deny citizens their constitutional right of free speech. While striking down Section 66A, the court had ruled that a distinction must be made between speech that is simply offensive or annoying and that which is guilty of inciting disruption of public order, or violence. In a way, it was a landmark judgment that expanded the contours of free speech to the internet. The court had declared that the section was violative of Article 19(2) of the Constitution, which guarantees freedom of speech and expression, and thus had to be struck down in its entirety. According to the data collated by Internet Freedom Foundation (IIF), an independent think tank, Maharashtra accounts for the highest number of cases pending trial under Section 66A, followed by Uttar Pradesh, Jharkhand and Rajasthan. Over the years, police have invoked this provision to arrest several people, particularly when they posted content against politicians. The main criticism against 66A is that its terminology being deliberately ambiguous and broad made it susceptible to misuse by those seeking to impose blanket gag orders on online criticism.
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