SC’s direction: Stop prosecuting people under the unconstitutional S.66A

Tl;dr

The Supreme Court has disposed of the People’s Union for Civil Liberties (PUCL)’s application for directions to stop the continuing prosecutions under S.66A of the Information Technology Act, 2000 (IT Act, 2000). The SC pronounced a significant order and issued several directions to ensure that individuals are no longer prosecuted under S.66A. S.66A was struck down by SC in Shreya Singhal vs Union of India & Ors., (2015) 5 SCC 1. Still, cases continue to be registered under it, as PUCL informed the SC in these proceedings. Recognising the graveness of the situation, SC directed: 1) individuals should not be prosecuted under the section; 2) existing cases shall stand deleted; 2) governments should instruct police not to register fresh cases; and 4) government publications which refer to S.66A should state that SC has struck it down in Shreya Singhal.

Why should you care?

S. 66A of the IT Act penalized sending "offensive messages" via online communication. 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 speech. The effect of this case should have been that Courts should have dismissed pending cases under S. 66A and authorities should not have instituted fresh cases under S. 66A. The findings on Zombie Tracker - a platform built by IFF in collaboration with CivicDataLab (CDL) - demonstrate that this did not happen and in fact, more cases were registered under S.66A after Shreya Singhal than before. Imagine being prosecuted for an offence which the Supreme Court has held is illegal!!

The Supreme Court has issued a range of directions which will remedy the situation in proceedings instituted by PUCL with legal support from IFF.

Supreme Court’s significant order

PUCL’s application sought directions from the SC to prevent continued enforcement of S.66A. Last year, SC had directed High Courts, States and Union Territories to reply to the application.  12 High Courts, 10 States and 1 Union Territory (UT) replied to the Application, and several of them admitted that S. 66A cases were still pending in their jurisdiction. Subsequently, on September 6th, 2022, the Supreme Court directed the counsel for the Union of India to impress upon State Governments the need to take remedial measures regarding continued enforcement of S.66A.

When the matter was taken up for hearing on October 12th, 2022, Senior Advocate Sanjay Parikh, appearing on behalf of PUCL, informed the bench that the counsel for the Union of India had addressed letters to State Governments. In response, several State Governments admitted that cases under S.66 are pending in their jurisdiction.

After hearing submissions from Mr. Parekh and the Attorney-General who was appearing on behalf of the Union of India, the SC bench led by the Chief Justice of India pronounced its order. A copy of the order is not available currently. However, based on the pronouncement in Court, which lawyers at IFF noted down, the SC in its order has issued the following directions:

1. Supreme Court in Shreya Singhal has unequivocally held that S.66A is unconstitutional. Thus, no citizen should be prosecuted under this provision.
2. In every case where S.66A is being used, reference and reliance upon the provision shall stand deleted.
3. Home Secretaries and other officials of State Governments must strictly instruct police officers not to register cases under S.66A.
4. All publications which refer to S.66A should adequately inform the readers that Supreme Court has struck down this provision in Shreya Singhal.

Considering these directions, SC disposed of the proceedings instituted by PUCL. We will update you once the Order is made publicly available.

Conclusion

The Supreme Court’s order will go a long way in ensuring that the decision in Shreya Singhal is enforced. The continued use of S.66A is blatantly illegal. No one should be prosecuted under an unconstitutional law. Yet, as PUCL informed the Court, more cases were registered under S.66A after Shreya Singhal than before it. Thus, the intervention of the SC was necessary, and we are glad that SC has decided to take strong steps against illegal prosecution.

We sincerely hope that authorities across the country will aid in ensuring the enforcement of the Shreya Singhal and the order passed by the Supreme Court on October 12th, 2022.

We thank PUCL for granting us an opportunity to provide legal assistance to them. We are also deeply grateful to the lawyers who worked on this case, especially Senior Advocate Sanjay Parikh, who has led the legal team consisting of Ms. Vrinda Bhandari, Mr. Abhinav Sekhri, Mr. Tanmay Singh, Mr. Krishnesh Bapat and Mr Satwik Parikh. Advocate-on-Record Ms. Aparna Bhat and her team comprising Ms. Karishma Maria also provided legal support.

Important Documents

1. Application filed by PUCL seeking directions against continued enforcement of S.66A. (link)
2. Previous post summarising PUCL’s application seeking directions against continued enforcement of S.66A. (link)
3. Rejoinder filed by PUCL in response to the reply filed by the Union of India (link)
4. Previous post detailing MHA’s notification dated 14th July, 2021 directing all law enforcement authorities to stop registering new cases under S.66A and to immediately withdraw all pending cases (link)
5. Zombie Tracker (link)
6. Research paper titled ‘Section 66A and other legal zombies’ by Abhinav Sekhri and Apar Gupta (link)