Section 66(A) of the IT Act, 2000 says, "Any individual who sends any grossly offensive message through a computer source or any information which is false and causes annoyance, danger, and obstruction will be punishable with imprisonment for three years or more with a fine". The provisions of Section 66A have been a part of the Zombie provisions which are used by the police for the prosecution of the people years laters which have been struck down and declared as invalid. According to Justice Nariman, "Implementation is a Problem", Section 66A of this Act unduly invaded the fundamental rights of the freedom to speech. This in turn created a negative effect on the balance between reasonable restrictions and said rights. This violated the fundamental rights under Section 14, Section 19(1)a, and Section 21 of the Indian Constitution.
Reasons behind scrapping of the Zombie Laws: Section 66A of the IT Act, 2000
The Supreme court of India had repealed this section in the year 2015 and made the following judgment while scraping the provisions of Section 66A:
1)The bench of judges observed that this particular section affects the citizen's freedom of speech and expression while identifying the liberty of thought as "cardinal". This contradicted Section 19(1) (a) of the Indian Constitution.
2)The bench held that the language used in the provisions of the 66A of the IT Act, 2000 was vague. Annoying, inconvenient, and grossly offensive are enshrined grounds that make a person accountable and deemed it unconstitutional. Two separate UK judgments were used by the bench to figure out whether the question was offensive or not to which two conclusions were listed down.
● The court also held regarding the above point that if lawyers derive two different conclusions, then how can others decide whether something is offensive or grossly offensive. It is also necessary to be noted that what may be offensive to one may not be offensive to the other person.
● The NDA government ensured that the provisions should not be misused after the introduction of some procedures which were quashed by the court. Based on this, the court issued a statement saying," Governments come and go, but section 66 (a) will remain forever" since the government cannot take an undertaking whether this provision will be misused or abused by the future government.
The Legal Zombie making the rounds of Supreme Court years after being repealed
The Supreme court showed its astonishment by seeing people registering FIRs under the repealed Section 66 A of the IT act, 2000 in July 2021. This was rescinded in the case of Shreya Singhal vs Union of India (2015). Justice Rohinton Fali was disappointed and shocked on seeing the guidelines on the FIR which were sought and filed by the PUCL (People's Union for Civil Liberties) under Section 66A of the IT Act, 2000.
Till today even after 7 long years of this particular section being repealed, there are many cases filed where the offenders are prosecuted under this provision of Zombie laws. This was stated by Adv Sanjay Parikh who appeared for the petitioner in the public interest litigation. This clearly shows the legal illiteracy amongst the law enforcers of the country showing its draconian nature. The solution to such illiteracy is keeping the police forces away from politics and professionalizing them. It was observed that they were working in favor of the parties and disregarding the public by recourse to the zombie provisions without realizing the validity and its scope.
India's Attorney General K.K Venugopal stated a very interesting observation that even though the provisions of Section 66A have been struck down by the division bench but the section is there in the bare act.
Violation of fundamental rights: Why is it happening?
The dire consequences of the provisions of Section 66A of the IT Act, 2000 violate Section 21 of the Indian constitution as it guarantees protection to life and personal liberty since those people are prosecuted under this scrapped provision. Hence, all high courts must communicate to the district courts that the entire Section 66A of the IT act has been struck down. Different inferences can be drawn from this particular act which is evident from the fact that the magistrates and prosecuting agencies are proactive in not giving effect to a landmark judgment of Shreya Singhal. A few inferences can also be drawn from the NCRB data which supports that even after Section 66A: Zombie laws facing a constitutional death continue to have a zombie-like undead application across the country in different courts and police stations. The court should have suo moto cognizance in light of this non-compliance of the failure of communication between states branches.
Just like Section 66 A which exists in society, there are many zombie provisions and an effective solution for this would be to make a procedure for the tabling of an amendment that gives effect to the supreme court decisions like the rules pushed under many statutes". If Zombie laws are not voted against, then they should be circulated in the Gazette of India. Besides, there should be debates on the change of the Gazette or the inclusion of other sections from the Supreme court judgments. We should put a full stop to such injustice and educate the public about the scope of such provisions so that from next time, no such individual is prosecuted under legal zombies.
Sharanya Chakraborty