Legality of Section 66A of the Information Technology Act was challenged in the Shreya Singhal case and the law was struck down as “vague” and “arbitrary”. But spate of cases over alleged offensive content posted on social media were being filed under the void provision.
Attorney General KK Venugopal blamed this on absence of a specific provision drawing police attention to the fact that the provision was struck down in 2015. The fact is only alluded to in a footnote. That is often overlooked, the AG said and suggested inclusion of a specific provision in the law stating that the provision stands deleted under a court order.
The bench asked the Centre to file a counter explaining its legal position on the issue as it was a “shocking state of affairs”. The case will now be heard after two weeks.
The People’s Union for Civil Liberties through advocate Sanjay Parikh argued that the cases registered under the provision had increased since the law was struck down. Advocate Aparna Bhatt represented the petitioner. “There has to be some kind of method. People are suffering,” she said. “It is shocking,” Justice Nariman agreed. “What is going on is terrible,” he said, alluding to the non-implementation of laws as interpreted by the courts. “Read my dissent in Sabarimala,” he observed. Kerala has refused to implement the court’s Sabarimala judgement despite there being no stay on it on the grounds that the issue was pending before the top court. Justice Nariman had written a scathing dissent on this.
Section 66A was struck down by the top court in 2015. At that time, there were over 200 such cases pending in courts. Since then number of cases under the provision has risen to over a 1000. Over 500 of them are still pending in the courts. In 2019 too, the bench acting on a similar petition asked the government to have its judgement circulated to all states. In 2015, the SC ruled that the provision would be deemed to have never existed in the statute book. That should have brought these cases to an end. But a 2018 research paper by Internet Freedom Foundation’s Abhinav Sekhri and Apar Gupta showed that the provision was still being used to prosecute people across the country. PUCL then with assistance of IFF moved the court for implementation of the court judgement.