GOVERNMENT DIRECTS STATES TO REFRAIN FROM CRIMINALIZING OFFENSIVE SPEECH OVER INTERNET

Recently, the 3-Judge Bench of the Hon’ble #SupremeCourt in the case of the People’s Union for Civil Liberties (PUCL) vs. Union of India and others (2021), issued a notice to the Ministry of Home Affairs, Government of India with respect to the compliance of the Judgment dated 24-03-2015 in the case of Shreya Singhal vs Union of India & Ors., [(2015) 5 SCC 1], which struck down Section 66A of the Information Technology Act, 2000 (“#ITAct”) that #criminalizes #offensive #speech over #internet.

In this regard, recently, the Ministry of Home Affairs, Government of India (“#MHA”) has issued an advisory to the Chief Secretaries and Director Generals of Police of all States vide Notification No. 21021/46/2016-1S-II/M dated 14-07-2021 (“Notification”). The Notification requested the Chief Secretaries and Director Generals of Police of all States, to direct all the police stations not to register cases under the repealed Section 66A of the IT Act. It further directed all the States and Union Territories to immediately withdraw all such cases that have been filed under Section 66A of the IT Act.

Background

The People’s Union for Civil Liberties (PUCL) (the “Petitioner”) filed a Miscellaneous Application (2021) before the Supreme Court of India seeking directions to ensure that individuals are not prosecuted under Section 66A of the IT Act, as the said provision was struck down by the Apex Court in its entirety for being violative of Article 19(1)(a) of the Constitution in the case of Shreya Singhal vs Union of India & Ors., [(2015) 5 SCC 1] vide its Judgment dated 24-03-2015 (“#ShreyaSinghalCase”).

Section 66A of the IT Act criminalizes “offensive speech” over the internet. This provision was used to suppress dissent across the political spectrum. In March 2015, the Supreme Court in Shreya Singhal Case declared this provision as void ab initio for being violative of Article 19(1)(a) of the Constitution, i.e. this provision would be deemed to have never existed in the statute.

As a result of this Judgment, all pending cases should have been dismissed, and no new cases should have been instituted under Section 66A of the IT Act. Despite the Supreme Court Judgment and directions for compliance, the same was not implemented by the State Authorities, as a result of which the cases under Section 66A of the IT Act are still being reported and prosecuted.

The Petitioner referred to a research paper titled ‘Section 66A and other Legal Zombies’ by Apar Gupta and Abhinav Sekhri, which demonstrated widespread abuse of the Section 66A of the IT Act even after the Judgment in Shreya Singhal Case.

The Petitioner pointed out in its Application that as on 10.03.2021, as many as 745 cases were still pending and active before the Districts Courts in 11 States, wherein accused persons were being prosecuted for offences under Section 66A of the IT Act.

The Petitioner prayed before the Supreme Court that the Union of India and others (“Respondents”) should put on record the present situation and data with regard to invocation of Section 66A by the police during registration of FIR/investigation as well as in pending trials.

The Hon’ble Supreme Court was pleased to issue a notice and directed the Respondents to file their Counter Affidavit in the matter.

The recent Notification issued by the Ministry of Home Affairs, Government of India is an attempt to ensure implementation of the Supreme Court Judgment in Shreya Singhal Case and to restrict the registration of new cases under Section 66A of the IT Act and to refrain from criminalizing offensive speech over internet, in view of the pending Application before the Supreme Court.

Lakshmi Vishwakarma

Senior Legal Associate

The Indian Lawyer & Allied Services