Supreme Court of India
Supreme Court of India

New Delhi: The Supreme Court Monday said it is "amazing" and "shocking" that people are still being booked under Section 66A of the Information Technology Act that was scrapped by the apex court verdict in 2015.

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

A bench of Justices R F Nariman, K M Joseph and B R Gavai issued notice to the Centre on an application filed by an NGO, 'People's Union for Civil Liberties' (PUCL).

"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 told senior advocate Sanjay Parikh, appearing for PUCL.

Parikh said that despite express directions of the court in 2019 that all state governments should sensitise police personnel about the March 24, 2015 judgement, thousands of cases have been registered under the section.

The bench said, "Yes, we have seen those figures. Don't worry we will do something".

Attorney General K K Venugopal, appearing for the Centre, 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.

"Now when a police officer has to register a case, he sees the section and registers the case without going through the footnote. Instead what can be done is that we can put a bracket just after section 66A and mention that it has been scrapped. We can in the footnote put the entire extract of the verdict," Venugopal said.

Justice Nariman said, "You please file counter in two weeks. We have issued a notice. List the matter after two weeks".

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 sought direction to the Centre to collect all data/ information regarding FIRs/ investigations where Section 66A has been invoked as well as pendency of cases in the courts throughout the country where proceedings under the provision are continuing in violation of the 2015 judgment.

The PUCL also sought direction to top court registry to communicate to all the District Courts throughout the country (through respective High Courts) to take cognizance of the 2015 judgment, so that no person should suffer or face any adverse consequences which violate his fundamental rights under Article 21 of the Constitution.

What is section 66A of the IT Act?

Section 66A was designed to define how criminal activity might be conducted by a person or persons on digital mediums. It penalized a considerable portion of such action by laying out a broad definition. Any person who communicated the following with her/his computer or another digital device was subjected to a criminal activity under the Section 66A of the IT Act:

  1. The content shared by the person was considered grossly offensive.

  2. The content carried false information and was deliberately created for annoying, putting in danger, making it inconvenient for, insulting, injuring, criminally intimidating, obstructing, people or treating them with enmity, hatred, or ill will.

  3. The content was created to create a deception about the source of the messages.

Any person or persons found carrying out such activities were treated with criminal charges and could receive three years of imprisonment and a fine.

Why Was Section 66A IT Act Repealed?

  1. Vague Descriptions of Key Terms: One of the primary challenges with the act was how it defined several key terms like grossly offensive. While the term communicates what the law might have intended, it does not lay out a framework for identifying something as grossly offensive. Such expressions can be open to interpretations.

  2. Overlapping with Indian Penal Code, 1860: For several parts of criminal conduct, intimidating, harassing, and other such cases, the section overlapped with the Indian Penal Code, 1860. Moreover, both the laws were giving out different punishments for apparently identical offenses.

  3. Defining the Perpetrators and the Victims: One key area where the law did not mention some critical criteria was – how did it define the number of perpetrators and victims.

  4. Abused Across the Country: In its nearly 15 years of enactment, the law was misused by several facets across the country. The particular PIL that led to the section's removal was motivated by the punishment sentenced to two girls in Maharashtra who communicated their dissatisfaction against the local government when it declared a shutdown on a significant political leader's demise.

After the section was removed, no new sections were created, consequentially to replace it. That does not mean there isn’t a legal structure surrounding cybercrime in India. The Indian Penal Code, 1860, and the Companies (Management and Administration) Rules 2014, working with the Companies Act 2013, are the commonly used directive laws in cases dealing with cybercrime.

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