Section 66A of the Information Technology Act, 2000, has long been dead. It was struck down as unconstitutional six years ago by the Supreme Court, which found that it “arbitrarily, excessively and disproportionately invades the right of free speech”. And yet, this draconian piece of dead law has had an astonishing afterlife in police stations across the country, leading to the persecution of several citizens for “menacing” or “offensive” online posts. According to a plea filed by an NGO in the Supreme Court, as many as 745 cases are active before district courts in 11 states, with the accused being prosecuted for offences under the invalid law.
Early this month, the Supreme Court bench hearing the plea was moved to seek a response from the Centre on what it called a “shocking state of affairs”. The Centre has written to state governments, asking them to pass on the memo to the police force — and withdraw all cases that may have been filed under Section 66A. Introduced by the UPA government in 2008, the amendment to the IT Act gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament. The court’s 2015 decision in Shreya Singhal vs Union of India was a landmark judicial pushback against state encroachment on freedom of speech and expression. “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it …and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total,” it said.
The gap between the court’s judgment and the pile of Section 66A cases is, perhaps, explained by a political climate in which free speech, dissent and legitimate criticism are seen as exercises in bad faith, and existing laws are wielded as weapons to arrest journalists and citizens for a tweet or a slogan or a Facebook post. Even a large body of progressive judgments by constitutional courts has not prevented the blatant misuse of the law of sedition or come in the way of courts’ reluctance to grant bail to accused. In the face of a political class that does not shrink from arrogating more powers to regulate speech, the police marches to the tune of vendetta, and even judicial wisdom is ignored. The Centre’s note to the states is welcome — but regular monitoring is the only way to ensure that the law is implemented in letter and spirit.