The “Existence” of a Non-Existent Law and the Broader Issues it Raises
The Information Technology Act 2000 (hereinafter referred to as the “IT Act”), India’s nodal law on regulation of information technology, was significantly amended in 2008 in order to plug certain loopholes in the original Act as well as accommodate further technological development within its legal framework. Among other things, this 2008 amendment to the Act introduced Section 66A, which essentially made sharing of “grossly offensive”, “insulting” or “menacing” information (Read: criticism of political parties) through electronic media a criminal offence.
In its landmark 2015 judgment of Shreya Singhal v. The Union of India, the Supreme Court struck down Section 66A on the ground that it imposed an unreasonable restriction on the freedom of speech and expression guaranteed under Art 19(1)(a) of our Constitution, a fundamental right closely tied to the democratic ideal of constructive criticism of public authorities. In the Court’s own words, “(Section 66A) takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.” (paragraph 90, emphasis added). Needless to say, this judgment was widely celebrated as a victory for free speech in general and online free speech in particular.
Shockingly however, Section 66A is still in use. Most recently, Priyanka Sharma , BJP’s Youth Wing convenor from Howrah was booked under this Section for circulating a meme ridiculing Mamata Banerjee (Surprisingly, even her order for bail makes no mention of the fact that one of the Sections she was booked under is unconstitutional). In another instance, a man from Guntur was arrested under Section 66A for duping people on a dating app through impersonation. Further, in March last year, Lucknow citizen Rahat Khan was one among five people booked under this Section for allegedly making “offensive” comments against UP Chief Minister Yogi Adityanath. (Interestingly-, he was later offered the position of social media in-charge for AIMIM). The same story holds true for a Gujarat Based lawyer- activist who made allegedly “offensive” religious statements against a particular group, and for a teenager in Tamil Nadu who targeted Prime Minister Narendra Modi in a private Facebook chat. Appallingly, a Telangana man was even convicted under Section 66A by a local court for making derogatory comments on social media. The list is sadly unending. Thus, to cut a long story short, Section 66A is being used rampantly even today.
A recent Hindustan Times Report in fact indicates that more than 3,000 people have been booked under Section 66A after its declaration as unconstitutional. Ironically, this is about 500 people more than those who were booked under this Section in 2014 when there was no judgment pronouncing upon its unconstitutionality. In substantiation, another independent study found several Section 66A cases being listed on portals like Indian Kanoon and SCC Online (neither of which are exhaustive) post 2015, some even having even culminated in convictions. Further, National Crime Records Bureau (NCRB) data for 2015-16 also shows continued arrests under Section 66A. Thus, it is abundantly clear that Section 66A is enjoying a healthy life even four years after its judicial death. Such an extension of its lifespan is nothing short of a mockery of the Supreme Court, our country’s highest judicial body.
Such a mockery of the Supreme Court can be traced back to either the intentional use the Section or alternatively to its inadvertent use by the police and the judiciary. However, it is important to note that these reasons are not mutually exclusive. As also argued by Abhinav Sekhri and Apar Gupta, it is the combination of knowing misuse and inadvertent use of Section 66A which is proving to be deadly for free speech in India.
In substantiation of the first limb of this combination, there is ample evidence to show that the Government has done little to stop continued use of Section 66A despite having notice of the same. For instance, when NCRB data (which has been referred to above) was used to point out the Government’s failure to contain this Section’s use post Shreya Singhal, the NCRB (a government agency) amusingly issued a “corrigendum” which essentially stated that this data was incorrect. Even more amusingly, it stopped publishing data on Section 66A from then on!
In another instance, it was observed that since Section 66A was declared unconstitutional, there was increased cases under Section 66 and 67 of the IT Act. As also argued by several Reports, this shows that in instances where the police realise that Section 66A is unconstitutional, they cover up their mistake by merely changing the section numbers. As a result, citizens are essentially arrested and fit into Sections which prima facie are not applicable to their case. This not only harasses them and wastes public machinery, but also causes a chilling effect – the very thing Shreya Singhal intended to avoid.
In a third example, the Government took no action against a stern notice issued to it by the Supreme Court in response to a 2019 PIL filed before it by the PUCL highlighting the continued use of Section 66A. Notably, the official Ministry of Electronics and Information Technology page containing the IT Act contains no mention of Section 66A’s unconstitutionality till date.
Additionally, day in and day out, there are numerous reports about use of Section 66A in the press, and it is no coincidence that most of these reports concern statements against political leaders and their parties, including the ruling party. Thus, it is a stretch to believe that our leaders do not know about this unconstitutional use (news regarding Section 66A literally concerns themselves). Despite such knowledge (Read: Because of this knowledge), none of our legislators or executive officials have brought this issue to either the Parliament or the Executive. The Parliament can easily issue an enabling amendment to the Act scrapping the Section; alternatively, the Executive can very easily issue a notification to that effect. Sadly, it comes as no surprise that nether of these two things have been done till date. Thus, it is clear that the Government is knowingly turning a blind eye towards the unconstitutional use of Section 66A.
However (in substantiation of the second limb of the combination), it is important to note that not all use of Section 66A post Shreya Singhal is politically motivated or intentionally malicious. Many instances show that the police are simply not aware that the Section has been pronounced unconstitutional. Alternatively, there is no clarity as to the exact effect of Shreya Singhal, considering that Section 66A is still present in the bare text of the Statute. In a documented instance, a Police Inspector expressed complete ignorance about the unconstitutionality of Section 66A and when the same was pointed out to him, he said that “it was one particular case only” and that he had aptly booked the concerned accused. Even an officer as senior as Inspector General of Police and Commissioner of Police, Jalandhar was quoted as saying that nothing can be done until the “Government has issued a notification.” Thus, Section 66A is also being used inadvertently.
The effect of such its knowing and unknowing use is that the onus of enforcing the verdict in Shreya Singhal is put on defendants, who are not reasonably expected to know the details of which statutory provisions are unconstitutional. Additionally, as mentioned above, such use is a direct affront to the judiciary and renders its judgment effectively meaningless. Needless to add, every unconstitutional use of Section 66A is curtailing the constitutional right to freedom of speech and expression, which is the touchstone against which a democracy is judged. One can only imagine the chilling effect such a curtailment has had in present times against the backdrop of Lok Sabha elections in the country.
Thus, it is imperative to ensure that the Court’s verdict in Shreya Singhal is enforced at the earliest through any and all possible means such as amendment, notification and widespread promulgation to enforcement agencies and the general public.
On a broader note, the Section 66A story is a case in point – it points towards wider problems related to promulgation of judicial decisions and their enforcement. On this point, it is important to note that there is no written or institutionalized mechanism of making judgments of our courts (including the Supreme Court) known to even the police and the judiciary (let alone the general public). As is seen through the case of Section 66A illustrated above, lack of such a mechanism is questioning the very relevance of our judiciary on a daily basis. Against this backdrop, it is imperative that we deliberate to bring out better promulgation strategies in the near future. While this might not be practically possible for every case, we can atleast make a beginning by ensuring that there is a practice to promulgate bare text law-changing decisions of the Supreme Court to government institutions like the police and the judiciary. By doing so, we can at the very least attempt to ensure that a 66A-like situation does not arise again.