Section 66A: When a celebrated judgment cannot be implemented by the police

Shobha Gupta

Freedom of speech is one of the most cherished fundamental right guaranteed by our Constitution. The Supreme Court of India has reiterated the importance of freedom of speech and expression both from the point of view of the liberty of the individual, and from the point of view of our democratic form of government in various judgments. 

To name a few, Romesh Thappar v. State of Madras (1950), Sakal Papers (P) Ltd. v. Union of India (1962), Bennett Coleman & Co. v. Union of India (1972), etc. The list is endless. One of the more recent ones is the landmark decision in the matter of Shreya Singhal v. UOI (2015), wherein the Apex Court, while reaffirming the importance of the fundamental right of freedom of speech and expression, declared the draconian Section 66A of the Information Technology Act, 2010 unconstitutional for excessively and disproportionately invading the right of free speech and expression. 

It has been four years since this section was struck down, but the police in various states are still booking people under this provision. In the present era, when information disseminates like fire, the Indian police still seem to have no information that Section 66A does not survive in the law books and that it is illegal, rather contemptuous, to book and arrest people under this non-existent section.    

In March 2017, two years after the judgment, one Zakir Ali Tyagi, an 18-year-old from Muzaffarnagar, Uttar Pradesh was booked and arrested under Section 66A of the IT Act for posting a comment on Uttar Pradesh Chief Minister Yogi Adityanath. 

A Chemistry professor of Jadavpur University, Prof. Ambikesh Mahapatra, was booked under Section 66 A of IT Act in 2012. The trial in his case is still going on under Section 66 A of the IT Act, while charges under all other provisions have been dropped. 

Three years down the line since the judgment, in October 2018, one Veeramreddy Suman Reddy was booked under Section 66A in Guntur, Andhra Pradesh. 

As recently as May 2019, BJP worker Priyanka Sharma was arrested and remanded to judicial custody. The charges against her include one under Section 66A. The Supreme Court had to intervene in this matter as well to ensure her immediate release.

Disturbed by the rampant and continued use of the struck down provision by police all over the country, the Supreme Court in January this year observed that it would send the erring officials to jail. The Bench of Justices Rohinton Nariman and Vineet Saran also directed that a copy of the judgment be sent to all district courts. 

I wonder why it is so difficult for our police to know and follow the law laid down by the highest court of the country, or for that matter any court. Is it a case of legal illiteracy, where unless they are not apprised of judgments of the courts by official communications, they can’t take notice of the same?

It is again a matter of serious concern if no official communication is issued by the Central Government and circulated to all police stations immediately after the judgment. How would the police maintain law and order if they themselves are not aware of the same? Why should a common man who is guaranteed various fundamental rights including the Right of Freedom of Speech suffer confinement in a police station even for a moment simply because our police is ill-informed or least bothered with the change of legal position?

Do the governments need a specific order by the courts to circulate the order? Isn’t it the obligation of the government to ensure compliance of the law laid down by the court in letter and spirit? It is high time that the issue is deliberated upon and requisite steps are taken to ensure that no one suffers any police action under Section 66A of the IT Act, which was declared unconstitutional some four years back. 

The following measures needs to be adopted to put things in order:

(i) The Ministry of Home Affairs, UOI must issue necessary advisories with immediate effect to all States/ UTs and through them to all police stations.

(ii) Wide publicity of the advisory be done so that the public at large is also informed of the steps taken by the governments.

(iii) Immediate action must be taken against the erring police personnel and such action must also be widely publicized.

(iv) The government must take all necessary steps to ensure that the public at large does not live in fear.

The author is an advocate practicing at the Supreme Court of India.