A three-judge Bench will issue further directions to ensure implementation of the judgment in Shreya Singhal v. Union of India, declaring Section 66(A) of the Information Technology Act, 2000 (henceforth, IT Act) unconstitutional.
The Information Technology (Amendment) Act, 2008 was passed to deal with new internet crimes, such as child pornography, identity theft, cyber-terrorism, etc. This Amendment introduced Section 66A into the IT Act. This provision was intended to protect women from cyber crimes such as vulgar mobile phone messages. In effect, it criminalized “offensive speech” online.
Section 66A granted wide powers to the government to make arrests to protect against annoyance, inconvenience, danger, obstruction, insult, injury, criminal, intimidation, or ill-will from information shared online. Section 66A was heavily criticised for endangering civil and political liberties. A circular was issued in January 2013, which made arrests under Section 66A subject to the approval of senior police officers. This was done because the government believed that the provision was not unconstitutional, but was being misused.
In March 2015, the Supreme Court delivered its judgment in Shreya Singhal v. Union of India, declaring that Section 66A was “constitutionally vague”, for it failed to provide limits on the government’s power. The Court held that the provision did not fall within the reasonable exceptions of the freedom of speech and expression. It declared the provision to be “void ab initio”- meaning it should be treated as though it never existed.
The Shreya Singhal judgment stated that all pending cases under the provision would be dismissed, and no new provisions would be implemented. In 2018, it was observed that Section 66A continued to exist as a “legal zombie”- new FIRs were still being filed under the provision.
In 2019, the NGO People’s Union for Civil Liberties (PUCL) approached the Supreme Court, seeking directions for compliance with the Court’s judgment in Shreya Singhal v. UOI. The Court directed that copies of the judgment should be made available to the Chief Secretaries of all states, who in turn would educate the police about the development.
Despite the 2019 order from the Court, Section 66A continues to be used to file FIRs and make arrests across the country. No amendment has been enacted to remove it from the IT Act.
PUCL has filed the present petition as a Miscellaneous Application in the Shreya Singhal case. It seeks further directions from the Court to ensure that Section 66A is not used to make unconstitutional arrests.
On 14 July, the Ministry of Home Affairs issued an advisory to States and Union Territories to direct all police stations not to register cases under the 'repealed' section 66A.