Section 66A of IT Act | 08 Jan 2019

The Supreme Court sought the Centre’s response to a plea alleging that despite the striking down of draconian Section 66A of the IT Act in 2015 by the apex court, police in various states were still invoking it in FIRs to clamp down on free speech on social media platforms.

• The petition said a recent working paper by the Internet Freedom Foundation demonstrated that pending prosecutions under Section 66A had not been terminated, and further it continued to be invoked by police across India in FIRs registered after the 2015 judgment.
• The petition said there had been a huge communication gap at the ground level and many officials may not even know about the Supreme Court verdict.
• It said trial courts and prosecutors were not actively implementing the verdict and the burden of terminating illegal prosecutions based on Section 66A fell on the accused persons.

Background

• Section 66A dealt with information related crimes in which sending information, by means of a computer resource or a communication device, which is inter alia offensive, derogatory and menacing is made a punishable offence.
• In Shreya Singhal v. Union of India judgement, Justices Rohinton F. Nariman and J. Chelameswar had observed that the weakness of Section 66A lay in the fact that it had created an offence on the basis of undefined actions: such as causing “inconvenience, danger, obstruction and insult”, which do not fall among the exceptions granted under Article 19 of the Constitution, which guarantees the freedom of speech.
• The court also observed that the challenge was to identify where to draw the line. Traditionally, it has been drawn at incitement while terms like obstruction and insult remain subjective.
• In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as :
  • The need to obtain the concurrence of the Centre before action can be taken.
  • Local authorities could proceed autonomously, literally on the whim of their political masters.
• The judgment had found that Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution. The entire provision was struck down by the court.
• After that government had appointed an expert committee (T.K. Viswanathan committee) which proposed a legislation to meet the challenge of hate speech online.