SC directs States, UTs and High Courts to reply to PUCL’s Application

Tl;dr

The Supreme Court 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), which the SC had struck down S.66A in Shreya Singhal vs Union of India & Ors., (2015) 5 SCC 1. Today, the Court has asked all the States, Union Territories and Registrar-General of High Court’s to reply to PUCL’s application. Previously on 5th July 2021, the SC had directed the Union of India to reply to PUCL’s application by 19th July 2021. Union of India filed their reply on 26th July 2021, and PUCL has filed a rejoinder in response to the reply. IFF has provided legal assistance to PUCL.

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 consisting of Justice Nariman and Justice Gavai. The bench ordered States, Union Territories and Registrar-General of High Courts to reply to PUCL’s application, and listed the case four weeks from 2nd August 2021. On the last date of the hearing i.e. 5th July 2021, the Court had directed the Union of India to reply to PUCL’s application.

Senior Advocate Sanjay Parikh, Sanjana Srikumar, Abhinav Sekhri, Vrinda Bhandari, Tanmay Singh and Krishnesh Bapat represented PUCL before the Court. The Solicitor General of India, Mr Tushar Mehta, represented the Union of India.

Background

PUCL is one of the foremost civil liberties organisations in the country. It has filed several cases apart from the petition challenging the constitutionality of S.66A, which have led to landmark judgments that have expanded human rights in India. Some of these judgments include Telephone tapping case (1997) 1 SCC 301, Fake police encounter in Manipur (1997) 3 SCC 463; Disclosure of criminal background and assets by political candidates, (2003) 9 SCC 490; Challenge to POTA (2004) 9 SCC 980; and Encounter killings in Maharashtra, (2014) 10 SCC 635.

PUCL was one of the petitioners in Shreya Singhal vs Union of India & Ors., (2015) 5 SCC 1 (Shreya Singhal) where the Hon’ble Supreme Court held that S. 66A of the IT Act, 2000 violated the right to freedom of speech and expression (summary). Despite the decision, individuals across the country continued to be prosecuted under the provision.

In 2019, PUCL, with legal assistance from IFF, approached the Supreme Court seeking directions to ensure the implementation of the decision in 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 across the country. The Chief Secretaries, in turn, were directed to sensitise police departments across the country.

PUCL again approaches the Supreme Court

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 as many as 810 cases under S.66A are pending before the district courts in 11 States. These findings prompted PUCL to approach the Supreme Court again to prevent continued enforcement of the provision. In the Application, PUCL has discussed the findings on the Zombie Tracker and informed the Supreme Court of the ongoing cases under S.66A. On 5th July 2021, PUCL’s application came up for hearing, and the Court directed the Union of India to reply to PUCL’s application by 19th July 2021.

Subsequently, on 14th July 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 Section 66A of the Information Technology Act, 2000 and to withdraw all pending cases immediately. The Notification also referred to PUCL’s application before the Supreme Court, which brought this issue to the MHA's notice, and states that the “Hon’ble Supreme Court has taken a very serious view on the matter.”

Government’s stance and PUCL’s response

On 26th July 2021 Union of India filed their reply to PUCL’s application, and PUCL responded to the reply on 30th July 2021.

In reply to PUCL’s application, the Union of India has stated that they have addressed several letters to State Governments and Union Territories directing them to withdraw cases registered under Section 66A and that they have also published the judgment in Shreya Singhal on the Ministry of Electronics and Information Technology’s website. Apart from this, the Union of India has also mentioned that the primary responsibility of ensuring implementation of the decision in Shreya Singhal rests with the State Government’s as ‘Police’ and ‘Public Order’ are state subjects. Notably, the Union of India has not disputed the fact that prosecutions under S. 66A continue unabated.

In response to the reply, PUCL has stated that the Union of India’s efforts to ensure compliance with Shreya Singhal are inadequate. PUCL has pointed out that Article 144 of the Constitution of India requires all authorities in the country, civil and judicial, to aid the Supreme Court, and has provided a range of suggestions to ensure compliance with the decision in Shreya Singhal. The suggestions include:

1. The Union of India should collect details of cases registered under S.66A since the pronouncement of the judgment in Shreya Singhal.
2. Director-General of Police in States and Administrators/Lieutenant Governors in Union Territories should forthwith drop investigations under S.66A.
3. In cases where a charge sheet has been filed against an accused under S.66A, the Chief Justice of High Courts should issue advisories to subordinate courts to drop all charges and discharge the accused.
4. 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.
5. The Director-General of Police of all States and Union Territories should ensure police stations within their jurisdictions display a notice that S.66A of the IT Act has been struck down in Shreya Singhal.
6. Union of India should ensure Doordarshan and All India Radio make quarterly announcements informing the public that S.66A is no longer in force.
7. 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.

Apart from these suggestions, PUCL, in the rejoinder, has also stated that the issue of non-implementation of decisions of the Supreme Court is not limited to non-compliance of Shreya Singhal, and there are several instances where binding judgments continue to not be implemented. Since non-implementation of judgments has severe repercussions on the administration of justice and the rule of law, PUCL has provided several suggestions to ensure authorities comply with important decisions of the Supreme Court. These suggestions include:

1. In cases where the Supreme Court considers that its directions must be implemented strictly, the Court may consider directing the Registry to send copies of the decision to concerned authorities and ask them to file compliance affidavits within a reasonable time.
2. The Supreme Court can direct that certain judgments be a part of the National Judicial Academy/State Judicial Academy training and also be a part of training courses of administrative/police services.
3. Union of India should summarise the directions of the Supreme Court and publish them in prominent places in police stations/public areas.
4. In cases where a statute or a provision of law has been struck down, the Union of India should ensure -
5. All official and commercial versions of the statute after the pronouncement of the judgment, do not include the complete text of the repealed provision and inform the reader that the said statute/provision stands repealed.
6. The department of publication should publish in the Gazette of India summaries of all the judgments where a provision has been struck down or read down as unconstitutional.

Conclusion

We look forward to the replies from the State’s, Union Territories and Registrar-General of High 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.

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)