66A

While we focus on actions and recommendations in the context of Section 66A of the Information Technology Act,  2000 (as amended in 2008), these recommendations may be applied where any provision of law is declared unconstitutional.

• 24th March 2020 marked the fifth anniversary of the Supreme Court of India’s landmark decision in Shreya Singhal v Union of India [AIR 2015 SC 1523], where it struck down Section 66-A of the Information Technology Act  2000 (as amended) (hereinafter referred to as “Section 66A”).
• As evidenced by our research, Section 66A is still being invoked to prosecute people.  This conclusion is also supported by decisions reported by legal databases and recent media reports which highlight that Section 66A is still being invoked at all levels from the police station to trial courts,  and all the way to the High  Courts. At this stage, we would once again like to clarify, as noted in our methodology, our research is based on cases at the district level.
• The continued use of Section 66A indicates a major signal failure between the branches of Government. In this sense, signal failure indicates the failure on part of each branch of the Government to convey information to the other branches as well as a failure to effectively disseminate information within their own institutions.

Legislature lethargy

• It is important to note that the declaration of unconstitutionality of a provision of law does not automatically lead to a deletion of the provision from that statute.
• In order to delete a provision from the statute, it needs to be amended. Such an amendment can only be made by the legislature. Therefore, to delete S66Aof the IT Act from the statute text, the Parliament needs to pass an enabling amendment to give effect to the  Supreme  Court decision.

• At the time of publication of Gupta and Sekhri’s study, Section 66A and Other Legal Zombies, India  Code  -  the official source for the text of central statutes, still contained the provision as it was enacted, without any indication of the declaration of its unconstitutionality. The version of the IT Act on India code has now been amended to include a footnote highlighting the Court's decision in Shreya Singhal v Union of India.
• A question pertaining to the Government's intention to amend or repeal Section 66A, in light of the judgement in Shreya Singhal v Union of India [AIR 2015 SC 1523], was posed before the Rajya Sabha in May 2015. The Hon'ble Minister,Shri Ravi Shankar Prasad, responded stating that there was no proposal to repeal the provision before the Government (at that time) and the Government was looking into bringing the provision in line with the Supreme Court's decision. More than 5 years later,  neither measure has been implemented and has resulted in the provision still being in place on statute books, albeit with a small asterisk drawing the users attention to the fine print highlighting the Supreme Court's decision.
• A bill to strike-off Section 66A from the statute,  introduced by a Private Member in 2018, lapsed without consideration.
• Because the use of this provision severely impinges on a person's fundamental right to freedom of speech and expression as guaranteed by the Constitution of India, more than fine print may be necessary to bring attention to the declaration of the provision as void. Knowledge and understanding of the fine print should be ensured by the Judiciary and the Executive, however, evidence shows that they have failed to do so.  While we expect the judiciary and executive to ensure knowledge and understanding of the fine print, our evidence highlights that this is often glossed over. Therefore, we recommend that the addition of a footnote is not satisfactory and further steps should be taken to ensure that the use of unconstitutional provisions is stopped. more needs to be done as compared to the addition of a footnote.
• This Parliamentary lethargy in giving effect to the Supreme Court's decision has resulted in the loss of liberty and harassment of several citizens for exercising their right to freedom of speech.We are hopeful that our efforts will bring to the notice of the Legislature the need to pass an amendment to give effect to the Supreme Court's decision in Shreya Singhal v Union of India [AIR 2015 SC 1523] and strike Section 66A off the statute books.

Executive (in)action

• The Gazette of India is an authorized legal document of the Government of India, published by the Department of Publication and is printed by the Government of India Printing Presses regularly. The Official Gazette published at the Central and State level carries announcements on new legislation,  rules,  notifications,  appointments etc.  that are passed. However, the Gazette does not provide updates carrying details of recent judicial decisions of constitutional import.
• Therefore, even though Section 66A was struck down and fettered police powers to arrest,  there were no official means to automatically get the message across to the police itself.  The communication to the police became a  depended on the decision of individual ministries issued a notification to that effect.
• At a departmental level, the  Department of  Electronics and  IT  (now called the  Ministry of  Electronics and  IT), had issued an advisory during the pendency of the proceedings addressed to all Chief Secretaries and the Director-General of Police for all States and Union  Territories,  called on them to use  Section  66A  with restraint and prior approval of administrative superiors. However, there is no official record of any advisory or notification issued by the Ministry informing the concerned stakeholders about the decision itself.
• In January 2019, People's Union for Civil Liberties (‘PUCL’), one of the original petitioners in the Shreya Singhal case, approached the Supreme Court highlighting the study and applying for directions to ensure implementation of the Court's original decision. In a counter-affidavit, the Union of India detailed steps it had taken to generate awareness on Section 66A. This included a letter the Government wrote on 11th January 2019 and then a reminder on 14th January 2019 to various state Governments asking them to furnish data on Section 66A cases and also asking them to close them. Some states responded. For instance, Kerala stated that 19 cases were filed after S. 66A was held to be unconstitutional and they would be closing all of them. The Court by judgement dated February 15, 2019, not only directed that all pending cases under S. 66A be closed but also that no fresh charges may be registered. The SC further directed that the Shreya Singhal judgement be sent to all courts in the country, to senior administrative officers and director generals of police. The evidence of fresh cases despite these directions reinforces our postulation of a severe signal failure.
• We recommend that the Ministry of  Electronics and  IT issue a specific advisory/notification highlighting the decision in Shreya Singhal v Union of India [AIR 2015 SC 1523]  and its effect, namely that Section 66A is void, no fresh cases may be registered under the provision and any pending case be closed. Copies of such advisory/notification should be forwarded to all District Courts, State Home Departments, senior administrative officers and Director Generals of Police. Such notification/Advisory must be supplemented by an updated version of the statue.
• A  more lasting solution would be to require  Parliament and the Executive to take action first.  For instance,  creating a  procedure for the automatic tabling of an amendment to give effect to the Supreme Court decision like the rules pushed through under many statutes by the executive. If not specifically voted against, the same becomes law that will then be circulated through the Gazette. Sekhri and Gupta put forth a suggestion to update the Gazette itself, “to include another section on Supreme Court judgments of constitutional import.” ( Abhinav Sekhri and Apar Gupta, ‘Section 66A and Other Legal Zombies’ (Social Science Research Network 2018) SSRN Scholarly Paper ID 3275893 accessed 8 April 2020.

Enforcing Justice

• Each State Home Department has authority over the state police force for that state. The State Police Force is headed by the Director-General of Police who is tasked with the responsibility to maintain law and order in the state. The state is divided into police districts where the officer in charge of the district, the Superintendent of Police, is responsible for, inter alia, the internal management of the force.
• We recommend that the State Home Departments recognise their accountability for the actions of the State Police Force. They must devise an oversight mechanism to ensure all Director Generals of Police receive regular updates about important judgements of the Supreme Court wherein a penal provision is rendered void, partially or completely.
• We call upon the Director Generals of Police of all States to ensure compliance within their state with decisions as set out in point 17 above. They may do this by calling for periodic information on cases registered under such a provision until they are satisfied that no fresh cases are or will be registered under the provision and no cases under the provision are pending.
• Further, the Director Generals of Police together with the Superintendents of Police must ensure such information is disseminated to the lowest level of the police force. Such information must be conveyed not only by notifications but be accompanied by periodic training/re-training sessions highlighting changes to the law.