In October 2018, we published a small study revealing how Section 66-A of the Information Technology Act 2000 [“IT Act”] continued to be used to prosecute persons despite being struck down by the Supreme Court as unconstitutional in Shreya Singhal (2015). We suggested that this afterlife was not merely wanton exercise of power by the police but symptomatic of a deeper malaise. Since declarations of unconstitutionality do not wipe out a provision from the statute book, it meant something more had to be done to ensure people know the provision is no longer valid. But we found that there were no systems in place to ensure that the news of judicial decisions reached all corners of the state machinery. Such signal failures between the judiciary and executive made it likely that news of a penal provision being struck down by the SC was not reaching the many police stations.
Based on our report, the People’s Union for Civil Liberties — one of the petitioners in the litigation that led to the provision being struck down — took 66-A back to the SC. Directions were sought for compliance with Shreya Singhal. Information was sought from the government on how many 66-A cases had been filed after it had been exorcised.
When the case came up for the first hearing in January, the bench was furious, promising strict action if in fact fresh cases had been filed after the Shreya Singhal judgment. On February 15, at the second hearing, the attorney general appeared to support a counter-affidavit filed by the Union of India. It showed that after the last hearing, the Union took steps to supply the publicity deficit which we had identified. It had written to states/union territories (UTs) reminding them about 66-A being struck down and sought data on pending cases, if any.
Only six responses had been received by the 15th, and not all of them provided the data sought. Out of these, Delhi and Manipur reported zero cases. Gujarat reported three cases filed after 66-A was struck down. Most notably, Kerala confirmed that 19 fresh cases had been filed after the Shreya Singhal judgment, with 15 at the investigation stage.
Despite the missing data from remaining states/UTs, the Court decided not to continue monitoring the issue. Instead, it chose to decide the application by allowing the prayers requested by PUCL: Directions were issued for the Shreya Singhal judgment to be circulated by all high courts among the subordinate judiciary, and directions were also issued to chief secretaries of all states/UTs to ensure the judgment is shared with the police. The orders in the PUCL v. Union of India application are welcome, and hopefully will help to end this particular legal zombie. Unfortunately, the good news ends there.
Replies by Kerala and the other states were an invaluable data source for how 66-A has been misused, since government statistics on criminal law have stopped carrying the numbers for 66-A. The fact that states took notice of the letters sent consequent to the PUCL application confirmed the impact of monitoring by the SC. However, in refusing to keep the application alive even when a majority of states/UTs had not yet furnished replies — including states such as Bihar and Jharkhand which we showed seemed to have many rogue 66-A cases — the Court has again made the afterlife of 66-A a non-transparent affair. This appears even more troubling in light of the news about persons being arrested for objectionable remarks online concerning the tragedy in Pulwama.
Because this ended as speedily as it did, the bench never bit into the larger issue of addressing signal failures. Non-compliance with 66-A is only the most visible symptom of a deeper malaise where one branch of the state is simply not being heard by the others. Bridging this communication gap requires a more sustainable solution than requiring someone — PUCL in this case — to knock on the Court’s doors.
This article first appeared in the print edition on February 25 under the title ‘Dishonouring the verdict’. Gupta is a lawyer and executive director of the Internet Freedom Foundation; Sekhri is a lawyer practising in Delhi. They conducted a study on Section 66A which led to PUCL’s application in which they appeared as lawyers.