SC notice to states on use of scrapped IT law

NEW DELHI: The Supreme Court on Monday observed that police cannot continue to lodge cases under the scrapped Section 66A of the Information Technology Act, seeking an explanation from all states and Union territories on steps taken by them to comply with the court’s March 2015 judgment which declared the provision null and void.

A bench of justices Rohinton F Nariman and BR Gavai accepted the central government’s argument that the states were issued repeated reminders by the Union ministry of home affairs, and that the onus was on them and their police departments to stop lodging fresh cases under the scrapped provision.

“Ultimately, police is a state subject. States will have to be put on notice...this (registration of cases) cannot continue,” said the bench while seeking replies from states and UTS in four weeks.

Earlier this month (on July 5), the bench said it was “shocking” and “distressing” that there was a fivefold increase in the registration of cases under Section 66A though the provision was quashed as it heard an application by NGO People’s Union for Civil Liberties (PUCL). The NGO highlighted that the situation on the ground did not change even after the Supreme Court in February 2019 asked the chief secretaries and directors general of police of all states and UTS to ensure that the 2015 judgment was widely publicised.

On Monday, attorney general

KK Venugopal and solicitor general Tushar Mehta appeared for the Union government and pointed out that the MHA has been sending letters to the states to instruct their police departments to stop registering cases under Section 66A, and that the latest communication to this effect was on July 13. The SG added that the police and law and order were state subjects.

On his part, senior counsel Sanjay Parikh, representing the NGO, submitted that apart from the police departments, directions will have to be issued to the district judiciary as well to ensure that whenever such cases are brought before the trial courts, they dropped the charges under the said provision.

The court acknowledged this problem. “Yes, you are right. We will take the issue of judiciary independently and will also ask registrar generals of the high courts,” responded the bench, also issuing notices to the registrar generals of all the 24 high courts.

“We want to pass a concrete order after hearing all of them,” emphasised the bench while directing that along with the notices, states and the registrar generals of the HCS should also be sent PUCL’S application and the affidavit filed by the Union government.

The bench was hearing PUCL’S application that revealed that after the law was quashed by the SC in 2015, the police in different states went on to lodge 1,307 new cases under the same provision. This demonstrated a fivefold hike as there were only 229 cases pending in 11 states when the Supreme Court struck down the provision that authorised police to arrest people for social media posts construed as “offensive” or “menacing”.

On July 5, the bench sought a reply from the Union government on measures undertaken to ensure implementation of its 2015 judgment. In its reply, the Centre maintained that it was the primary duty of states and UTS to desist from lodging any fresh cases under Section 66A of the IT Act and withdraw prosecutions from all such cases. It said that 21 states wrote to the IT ministry between January and April of 2019, saying they issued suitable directions to the police departments and complied with the 2015 verdict.

The Centre’s affidavit, however, disclosed that these 21 states did not include Maharashtra, which topped the list in registration of cases after the judgment with 381 cases, followed by Jharkhand (291), and Uttar Pradesh (245). Also, while the Rajasthan government reported compliance with the 2015 verdict, the NGO’S application stated that there were more than 70 cases still pending prosecution in the state under the scrapped provision.

CENTRE TOLD SC THAT IT WAS THE PRIMARY DUTY OF STATES AND UTS TO DESIST FROM LODGING ANY FRESH CASES UNDER THE LAW