UP Police Continues To Register FIR Under 'Unconstitutional' Section 66A IT Act ; Allahabad HC Refuses To Quash It [Read Orders]

The Supreme Court had struck down Section 66A of the Information Technology Act in its entirety in a judgment delivered in 2015 (Shreya Singhal vs. Union of India). Last year, the Apex Court had expressed its concern and displeasure about the continued use of this 'unconstitutional' Section 66A of the IT Act.

Recently, a person named Rohit Singhal approached the High Court seeking to quash the F.I.R.registered against him under Sections 3/7 Essential Commodities Act, and Section 66A Information Technology Act. Before the Division Bench of the High Court, the counsel for the petitioner cited the Supreme Court judgment in Shreya Singhal.

However, the Court refused to quash the FIR under Section 66A and instead directed that the petitioner shall not be arrested in above mentioned case, till the submission of the police report under section 173(2) Cr.P.C., if any, before the competent court. The petitioner was also directed to cooperate with the investigation of the case.

More recently, a Journalist Shiv Kumar (Amar Ujala), approached the High Court seeking to quash the FIR registered against him under section 188 and 505  of Indian Penal Code read with section 3 of Epidemic Act and Section 66A of Information Technology Act.  Disposing of his petition, the Court found that 'it is apparent that cognizable offence is there for which investigation is in process, hence no ground for indulgence is made out.' The Court however granted protection to the petitioner until filing of Police Report. 

The Court could have quashed the FIR in so far as Section 66A is concerned, but it did not.

The Supreme Court had struck down Section 66A of the Information Technology Act, for being violative of Article 19(1)(a) and not saved under Article 19(2). Section 66A was introduced in the Information Technology Act by virtue of an Amendment Act of 2009. The said provision penalised any person who sends, by means of a computer resource or a communication device,— (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages. The offence was made punishable with imprisonment for a term which may extend to three years and with fine.

The Internet Freedom Foundation had released a paper two years ago, claiming that Section 66A continued to be used across India, despite the judgement. The paper, co-authored by Abhinav Sekhri and Apar Gupta, had called Section 66A a "legal zombie", asserting that it haunts to Indian criminal process, despite more than three years having passed since the judgment. It had argued that this was because of deeper institutional problems which resulted in judicial decisions not reaching state actors at the ground level. "Right from the police station, to trial courts, and all the way to High Courts, one finds that Section 66-A is still in use despite it being denied a place on the statute book," the study had said.

In January 2019, the People's Union for Civil Liberties (PUCL), approached the Apex Court highlighting the continued use of Section 66A of the Information Technology Act. Agreeing with the suggestion mooted by the Attorney General of India, the Supreme Court disposed of this application by directing all High Courts to make available the copies of the Supreme Court judgment in 'Shreya Singhal v. Union of India' to all the District Courts with eight weeks.

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