Centre says states should implement 2015 judgement scrapping Section 66A of IT Act

Under the scrapped Section a person posting offensive messages could be imprisoned for up to three years as also fined

New Delhi: As ‘police’ and ‘public order’ are state subjects under the Constitution, the primary responsibility for implementing the 2015 judgement which scrapped Section 66A of the IT Act lay with them and their law enforcement agencies, the Centre has told the Supreme Court.

The Centre has stated this in an affidavit to the apex court in response to a plea of an NGO, ‘People’s Union for Civil Liberties’ (PUCL), alleging that the steps taken by the Central government for ensuring effective implementation of the verdict “far from adequate”.

Under the scrapped Section a person posting offensive messages could be imprisoned for up to three years as also fined.

In the affidavit filed before a bench headed by Justice R F Nariman, the Centre said that state law enforcement agencies are responsible for taking action against offenders related to cyber crime.

“Police and public order are State Subjects as per Constitution of India and prevention, detection, investigation and prosecution of crimes, and capacity building of police personnel is primary responsibility of States.

“The law enforcement agencies take legal action as per provisions of law against the cyber crime offenders and accordingly the law enforcement agencies share equal responsibility to comply with the said judgement,” the Centre said.

The government also told the top court that it has directed the Chief Secretaries and Administrators of all states and UTs to direct all police stations not to register cases under Section 66A to ensure compliance with the top court’s judgement in the Shreya Singhal case.

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The Centre said it has also requested them for submission of reports to the IT ministry on the number of cases booked under Section 66A of the IT Act, and directing them to withdraw any prosecution invoking 66A.

Responding to the Centre’s affidavit PUCL told the apex court that the steps taken by the Centre for ensuring effective implementation of the historic 2015 judgement, scrapping Section 66A of the Information Technology Act, which has still been used for arresting persons for offensive social media posts, are “far from adequate”.

The bench, which scrapped the controversial provision from statute book by its verdict in the Shreya Singhal case, had on July 5 expressed shock after PUCL filed an application alleging misuse of the scrapped provision by authorities across the nation.

“Don’t you think this is amazing and shocking? Shreya Singhal judgement is of 2015. It’s really shocking. What is going on is terrible,” the bench, also comprising K M Joseph and B R Gava, had said while issuing notice to the Centre on the NGO’s plea.

The NGO, in its rejoinder affidavit filed through National General Secretary V Suresh, dealt with the steps taken by the Centre to implement the verdict and gave a slew of suggestions for its effective implementation.

“The steps taken by the Ministry of Electronics and Information Technology (MeitY ) towards ensuring effective implementation of this Court’s Judgment in Shreya Singhal v. Union of India… are far from adequate,” the affidavit said.

It has suggested that the authorities be asked to collect “the details of the cases registered by the Police/Law Enforcement Agencies under Section 66A of the IT Act since the pronouncement of the Judgment in Shreya Singhal by co-ordinating with the Chief Secretaries/DGPs of the States and Union Territories.”

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Where the case is at the stage of investigation, direct the DGP in states and the Administrators/ Lieutenant Governors in the cases of UTs to forthwith drop further investigation under Section 66A, it said.

It has also sought a direction from all High Courts to all the District Courts and Magistrates that no cognisance of offence under the provision be taken.

The NGO said the Centre be directed to issue an advisory to all police stations not to register cases under the repealed Section 66A.

The top court was hearing a fresh application of PUCL saying, “That, shockingly, despite the order dated February 15, 2019 and steps taken towards compliance thereof, the Applicant discovered that Section 66A of the IT Act has continued to be in use not only within police stations but also in cases before trial courts across India”.

It had sought replies from the Centre.

Attorney General K K Venugopal, appearing for the Centre, had said that on perusal of the IT Act it can be seen that section 66A features in it, but in the footnote it is written that the provision has been scrapped.

On February 15, 2019, the top court had directed all state governments to sensitise their police personnel about its March 24, 2015 verdict which had scrapped Section 66A, so that people are not unnecessarily arrested under the struck down provision.

It also asked all the high courts to send the copy of the verdict to all the trial court to avoid people being prosecuted under the scrapped provision which provided for jail term to people who posted offensive content online.

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Terming liberty of thought and expression “cardinal”, the top court had on March 24, 2015, scrapped the provision saying that “the public’s right to know is directly affected by Section 66A of the Information Technology Act”.

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