SC directs errant States to take remedial measures regarding pending 66A cases

Supreme Court expressed displeasure after several States & High Courts admitted that S.66A was still being enforced in their jurisdiction.

06 September, 2022
4 min read

Tl;dr

The Supreme Court (SC) heard the People’s Union of Civil Liberties’ (PUCL) Application seeking directions to ensure that authorities do not prosecute individuals under S.66A of the Information Technology Act, 2000 (IT Act, 2000), considering the SC has struck down S.66A as unconstitutional in Shreya Singhal v Union of India & Ors., (2015) 5 SCC 1. Since the last date of hearing, 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. Today, after hearing submissions from counsels, SC directed Advocate Zoheb Hossain, the counsel for the Union of India, to write to States where S.66A cases are pending, on behalf of the Supreme Court of India, and impress upon them the need to take remedial measures. Senior Advocate Sanjay Parikh represented PUCL and IFF provided legal assistance.

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 Civic Data Labs (CDL) - demonstrate that this did not happen and in fact, more cases were registered under S.66A after Shreya Singhal than before. This is a grave concern as a decision of the Supreme Court is not being complied with and citizens are being punished for an offence which does not exist anymore on statute books. PUCL’s Application seeks to address this issue.

Supreme Court hears PUCL’s Application.

PUCL’s Application, which seeks directions against continued enforcement of S.66A of the IT Act, came up for hearing before a two-judge Supreme Court bench comprising of the Chief Justice of India and Justice S. Ravindra Bhat. When the matter was taken up, Senior Advocate Sanjay Parikh who was representing PUCL, informed the Court that 12 High Courts, 10 States and 1 UT had replied to PUCL’s Application out of which 8 High Courts, 5 States and 1 UT had stated that S.66A, IT Act cases were pending in their jurisdiction and had provided details of those cases. Mr. Parikh also handed over a note summarising the replies by the High Courts, States and UTs, which we are making public.

At this stage, the Court asked Mr. Parikh how the SC can remedy this serious situation. Mr. Parekh referred the judges to PUCL’s Rejoinder to the Union of India’s counter-affidavit which contained detailed suggestions for effective enforcement of the decision in Shreya Singhal. The Rejoinder contains 14 specific recommendations on measures that the Supreme Court can take to ensure the effective implementation of Shreya Singhal. Recognising that there is a broader concern regarding the implementation of the Supreme Court’s orders other than Shreya Singhal, the Rejoinder also provided 10 general recommendations on measures that the Supreme Court may consider for the effective implementation of its orders and judgments at the local levels. We have previously summarised these suggestions here.

After going through the suggestions put forth by Mr. Parikh and after briefly hearing counsels for the Union of India, States and High Courts, the Court dictated its order in open court.

Supreme Court’s order to remedy a grave situation

A copy of the order is not available currently. However, based on the pronouncement in Court, SC in its order has noted that S.66A continues to be used despite previous directions issued by the Court and that instances of this have been provided in the Application. The Supreme Court stated that this was a matter of serious concern. In these circumstances, the Court asked Mr. Zoheb Hossain, the counsel for the Union of India, to get in touch with the Chief Secretaries of states where cases under S.66A are still being registered or stand registered, within a period of 3 weeks, and impress upon them the need to take remedial measures as early as possible. The Court also directed Counsels appearing on behalf of States to assist Mr. Hossain and permitted Mr. Hossain to write to officials from various States and seek information regarding pending cases. We will provide a copy of the Order as soon as it is available.

Conclusion

We welcome the decision of the Supreme Court to impress upon the States the need to remedy the situation and we will provide complete assistance to Mr. Hossain as he complies with the direction of the Court.

We hope that the matter is resolved soon, since the continued enforcement of S.66A is not only in blatant disregard of the decision in Shreya Singhal, but also violates the fundamental rights of those being prosecuted under this provision.

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 Satwick Parikh, Mr. Krishnesh Bapat and Ms. Anandita Mishra. Advocate-on-Record Ms. Aparna Bhat and her team comprising Ms. Karishma Maria also provided legal support. The Union of India was represented by Mr. Hossain.

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)

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