Dead and Alive: Affidavits filed by States and High Courts reveal 470 pending cases under the struck down S.66A

tl;dr

The People’s Union of Civil Liberties (PUCL), with IFF’s legal assistance, had filed an application in the Supreme Court (SC) seeking directions to ensure that authorities do not prosecute individuals under S.66A of the Information Technology Act, 2000 (IT Act, 2000), which the SC had struck down in Shreya Singhal vs Union of India (2015). On Aug 8th, 2021, SC issued notice to all States/UTs and High Courts. 8 HCs and 6 States have replied to the application and they demonstrate the widespread non-compliance with the decision in Shreya Singhal. We await responses from other States/UTs and High Courts.

Background

S. 66A of the IT Act penalized sending "offensive messages" via online communications. The wide powers of the section were frequently used to stifle political dissent.

In March 2015, S.66A was declared unconstitutional by the Hon’ble Supreme Court in Shreya Singhal v. Union Of India as it violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India. The Court found that S. 66A was vague and could be arbitrarily interpreted to penalize even innocent speech. Significantly, the Court found that the provision was not ‘severable’ i.e., no part of the section could be saved and the provision as a whole was declared unconstitutional. This means that the provision was void ab initio i.e was deemed to never have existed on the statute books. The effect should have been that Courts ought to have dismissed all pending cases under S.66A, and authorities ought not to have instituted fresh cases under S. 66A.

However, the story did not end there. In 2018, a study by Apar Gupta and Abhinav Sekhri highlighted that authorities continued to prosecute individuals under S.66A  even after Shreya Singhal. Subsequently, in 2019, PUCL, one of the original petitioners in Shreya Singhal, approached the Supreme Court seeking directions to ensure the implementation of Shreya Singhal. In February 2019, the Supreme Court directed the Union of India to ensure compliance with its decision by making available copies of the judgment to Chief Secretaries of States/UTs across the country. The Chief Secretaries, in turn, were directed to sensitise police departments across the country.

PUCL approached the Supreme Court again

Despite the Supreme Court’s direction in February 2019, findings on Zombie Tracker - a platform built by IFF in collaboration with Civic Data Labs (CDL) - indicated that in 2020, as many as 810 cases under S.66A were pending before the district courts in 11 States. These findings prompted PUCL to approach the Supreme Court again in April 2021 to prevent continued enforcement of this provision. Here’s a brief timeline of the hearing:

Date

Event

April 13th, 2021

PUCL approached the Supreme Court again to prevent continued enforcement of the provision

July 5th, 2021

PUCL’s application came up for hearing, and the Court directed the Union of India to reply to PUCL’s application by July 19th, 2021

July 14th, 2021

The Ministry of Home Affairs (MHA) issued a notification marked “Most Immediate: Supreme Court Matter” directing all law enforcement authorities to stop registering new cases under S.66A of the IT Act and to withdraw all pending cases immediately.

July 26th, 2021

The Union of India filed its reply, submitting that the primary responsibility of implementation of Shreya Singhal rests with the State Governments as ‘Police’ and ‘Public Order’ are state subjects

July 30th, 2021

In rejoinder, PUCL stated that the Union of India’s efforts to ensure compliance with Shreya Singhal are inadequate. PUCL provided a range of suggestions to ensure compliance with the decision in Shreya Singhal

August 2nd, 2021

The SC issued notice to States/UTs and High Courts asking them to reply to the application filed by PUCL. 

Replies from States/High Courts reveal that 470 zombie cases are currently pending under the unconstitutional S.66A!

In response to the notice issued by the SC, various States and HCs have filed affidavits providing information regarding the number of cases still pending under S.66A. The response is briefly summarized in the table below:

States/HC’s

Pending cases according to affidavits filed by State/HC 

Gauhati High Court

14 cases pending in Assam and 3 cases pending in Arunachal Pradesh

Bihar

Does not disclose the number of pending cases under S.66A

Madhya Pradesh*

113

High Court of Manipur

0 and has stated that it has no objection in allowing the application filed by PUCL. 

High Court of Orissa

170

Punjab 

Does not disclose the number of pending cases under S.66A

High Court of Punjab and Haryana

26

Nagaland

0

Rajasthan

100

Tamil Nadu

Does not disclose the number of pending cases under S.66A

High Court of Calcutta

44

Sikkim HC

0

High Court of Tripura

0

Union Territory of Jammu and Kashmir **

FIRs registered under S. 66A before Shreya Singhal: 24

FIRs registered under S. 66A after Shreya Singhal: 16

FIRs where chargesheet has been filed: 9 


FIRs which have been quashed: 1


FIRs which are pending before the court for quashing: 4

FIRs where charges have been dropped: 17

Total

470

*The affidavit filed by the State of Madhya Pradesh only provides information regarding cases filed between 24.03.2015 and 12.08.2021.

** The affidavit filed by Union Territory Jammu & Kashmir does not provide any information regarding the remaining 9 FIRs.

From these limited responses, it is clear that cases under S.66A continue unabated despite the directions repeatedly issued by the SC, the MHA, and various State governments and High Courts, to stop registering new cases under Section 66A and to withdraw all pending cases. The responses also demonstrate the importance of the application filed by PUCL before the Supreme Court as well as the prayers it has sought such as - 1) Union Government should collect details of cases registered under S.66A; 2) High Courts should put in place a complaint mechanism by which any person against whom a case is registered under S.66A could directly approach a court for speedy redressal; and 3) Union of India should ensure that all official and commercial versions of the IT Act should not include the complete text of S.66A and should inform the reader that the provision has been repealed in Shreya Singhal.

We look forward to the replies from the remaining States, Union Territories and Registrar-General of High Courts. We hope that the matter is resolved soon, since the continued enforcement of S.66A is not only in blatant disregard of Shreya Singhal, but also violates the fundamental rights of those being prosecuted under this provision.

Important Documents

  1. Application filed by PUCL seeking directions against continued enforcement of S.66A. (link)
  2. Previous post summarizing the Supreme Court’s direction to States, UTs and High Courts to reply to PUCL’s Application. (Link)
  3. Post summarizing PUCL’s application seeking directions against continued enforcement of S.66A. (link)
  4. Rejoinder filed by PUCL in response to the reply filed by the Union of India (link)
  5. Zombie Tracker (link)
  6. Research paper titled ‘Section 66A and other legal zombies’ by Abhinav Sekhri and Apar Gupta (link)

(This post was written by IFF intern Simrandeep Singh, and reviewed by IFF staff.)