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  • A Supreme Court bench comprising Chief Justice U U Lalit and Justice S Ravindra Bhat heard a writ petition filed by an NGO Peoples Union for Civil Liberties (PUCL) [PEOPLES UNION FOR CIVIL LIBERTIES Versus UNION OF INDIA MA 901/2021 in W.P.(Crl.) No. 199/2013]regarding invoking Section 66 (A) of the Income Tax Act despite the judgment passed in Shreya Singhal Vs UOI (2015) 5 SCC 1.
  • The petition seeks the apex court to respond on a matter where the citizens had been charged and prosecuted under Section 66(A) of the IT Act which was repealed, for freely expressing themselves on social media.
  • The Supreme Court directed the Union Government’s representative Advocate Zoheb Hossain, on 1 September, 2022 to meet with the Chief Secretaries of the States, where FIRs are filed under Section 66 (A) of the Information Technology Act are still being registered although the provision was declared unconstitutional and invalid in 2015 by the Court.
  • The Court ordered the Centre to impress upon States to take remedies and steps
  • “as soon as possible”. The Bench stated that the matter was quite serious and had issued notice to States and High Courts.
  • The Bench said, "In the circumstances we have asked Mr. Hossain, on behalf of UOI to get in touch with Chief Secretary of States where offences are still being registered and impress upon them to take remedial measures as early as possible. Mr. Hossain shall be rendered due assistance by the concerned advocates appearing for the State. In order to have complete assistance, he will have liberty to write to Chief Secretaries asking for required information. States are directed to supply all information as required by Mr. Hossain. Let the entire exercise be finished in 3 weeks."
  • Senior Advocate Sanjay Parikh appearing for the petitioner had submitted a detailed case to be registered by the police under Section 66(A) of the IT Act despite of the Shreya Singhal Vs UOI verdict which declared Section 66(A) to be unconstitutional.
  • The Bench retorted saying, "The grievance based in this application is about the non-implementation of directions issued by this court in Shreya Singhal v. UOI striking down Section66A of IT Act. It is submitted that despite the directions of this court, in various crimes, offences regarding violation of 66A are still being projected. Instances on that behalf have been given. This court, therefore, issues notices to all the states. All states are before us."
  • In March 2015, a bench comprising Justice J Chelameswar and R F Nariman held in the matters of the issue of free online speech and intermediary liability of India that Section 66A is unconstitutional for “being violative of Article 19(1) (a) and not saved under Article 19(2).”
  • Section 66(A) of the Information Technology Act, 200 was struck down as unconstitutional as it violated Article 19 (1) (a) that guaranteed freedom of speech, and the section cannot be claimed as a reasonable restriction under Article 19(2) of the Indian Constitution. Freedom of online speech against any arbitrary restrictions was upheld by the apex court.
  • The court in the PUCL case observed that though many states including Uttar Pradesh, Himachal Pradesh, Sikkim, West Bengal, and Meghalaya had unanimously reported following the instructions delivered by the court and no case lies pending in the issue of offences under Section 66 (A), but there still seems to persist some instances where the sections are being invoked and offences being charged.
  • The matter was adjudged three weeks later from the date of order. PUCL along with Internet Freedom Foundation raised some questions in the court :
  1. Whether Shreya Singhal Vs UOI judgment has strict compliance?
  2. What measures need to be taken for effective implementation of the judgment to avoid arbitrary investigation or prosecution?
  3. What steps need to be taken to ensure that the judgments passed related to the protection of legal and constitutional rights are being properly enforced?
  4. Whether UOI has taken the necessary steps?
  • It was contended that the steps taken by the Ministry of Electronics and Information Technology (MeitY) were inadequate as per the application.
  • Union of India rather than implementing the judgment, dodged its liability stating that the implementation rests with the states and other law enforcement agencies.
  • An application had a prayer in the Court to direct the Centre to list the cases registered by the police under the repealed section, Section 66(A) of the IT Act since the judgment was pronounced. In case the case was at the investigation stage, the director general of police will be instructed to drop further investigations under that section.
  • The prayers also included for the Chief Justices of High Courts to advise the Sessions and Magistrate Courts to drop all trials under the section and discharge anyone accused related in that case. There must be no cognizance of the repealed section.
  • It was also further prayed for DGP’S of all states and Union Territories to formulate disciplinary action against those who have registered cases under the repealed section of the IT Act and for High Courts to have suo moto cognizance against those registering, investigating, or prosecuting cases under Section 66(A) of IT Act.
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