Why is the unconstitutional Section 66A still being used in police stations and courtrooms?

Communication about judicial decisions remains at the mercy of initiatives by scrupulous officers

Note: co-authored with Abhinav Sekhri who is the lead author.

In 2015, the Supreme Court struck down Section 66A of the Information Technology (IT) Act, 2000, as unconstitutional. That decision, Shreya Singhal v. Union of India, was heaped with praise by domestic and foreign media alike.

But none of this stopped the police in Muzaffarnagar, Uttar Pradesh, from arresting and detaining 18-year-old Zakir Ali Tyagi in October 2017, for allegedly committing a crime under Section 66A — for posting some comments on Facebook. Mr. Tyagi’s case is not alone. Media outlets have reported other instances where Section 66A has been invoked by the police, all of which points to an obvious, and serious, concern: what is the point of that landmark decision if the police still jail persons under unconstitutional laws?

We decided to dig deeper and investigate how Section 66A and other legal zombies have a tendency to inhabit the Indian legal system after their legal deaths.

Widespread malaise

Media reports on the continued application of Section 66A lend themselves to a narrative: the oft-maligned police are abusing their power in hamlets to commit the most obvious wrongs. But the facts show that this is far from the truth. From police stations, to trial courts, and all the way up to the High Courts, we found Section 66A was still in vogue throughout the legal system.

Equally disturbing was the discovery that this issue of applying unconstitutional penal laws long preceded Shreya Singhal and Section 66A. Before the recent decisions that held provisions in the Indian Penal Code as unconstitutional (in whole or in part), the Supreme Court had famously done this, in 1983, by striking down Section 303 of the Indian Penal Code in Mithu v. State of Punjab. In 2012, years after Section 303 had been struck down, the Rajasthan High Court intervened to save a person from being hanged for being convicted under that offence.

The weakest branch?

Since we did not subscribe to a narrative of wanton abuse by the authorities in their applying unconstitutional laws, we examined why such instances would keep recurring. Notwithstanding other causes, we argue that a primary reason for poor enforcement of judicial declarations of unconstitutionality is signal failures between different branches of government.

Today, the work of the Supreme Court has firmly placed it within the public consciousness in India. It is common to read reports about the court asking States and other litigants for updates about compliance with its orders (an example being orders in mob lynching petitions). While this monitoring function is one that the court can perform while a litigation is pending, it cannot do so after finally deciding a case, even after directions for compliance are issued. Instead, it needs help from the legislature and executive to ensure its final decisions are enforced. This was one of the reasons why Alexander Hamilton famously labelled the judiciary as “the least dangerous branch”.

Commonly, in this context, one thinks of active non-compliance that can undermine the work of courts — for instance, the aftermath of the Sabarimala verdict. But these publicised acts of defiance have hidden what is a systemic problem within the Indian legal system: there exists no official method for sharing information about such decisions, even those of constitutional import such as Shreya Singhal.

Identifying signal failures

For any bureaucratic structure to survive, it needs working communication channels for sharing information. The same analogy applies here. The probability of decisions taken at the highest echelons of a system being faithfully applied at the lowest rungs greatly depends on how efficiently word gets to the ground. At present, even getting information across about court decisions is an area where the judiciary needs help.

So, unless Parliament amends a statute to remove the provision declared unconstitutional, that provision continues to remain on the statute book. This is why both Sections 66A and 303 are still a part of both the official version of statutes published on India Code and commercially published copies. And while the commercially published versions at least put an asterisk to mention the court decision, no such information is provided in the official India Code version.

Besides reading statutes, what else might government officials consult while applying the laws? Notifications and circulars issued by relevant Ministries. These notifications are another official method to share information about judgments declaring a provision unconstitutional. But as nothing mandates the issuance of these notifications, there is no means to ensure that they are issued.

What about the judiciary? We found that there is no formal system on information sharing in the hierarchical set-up of the Indian judiciary. However, we found that some High Courts and district judges for specific districts did issue circulars bringing important decisions to the notice of other members in the judiciary.

Thus, if the official text of the IT Act still retains Section 66A, and there is no government notification informing officers about it having been declared unconstitutional, is it really unimaginable to hear about the continued application of this legal zombie?

Justice for all

There is a pressing need to move from a system where communication about judicial decisions is at the mercy of initiatives by scrupulous officers, to a method not contingent on human error to the greatest possible extent. The urgency cannot be overstated. Enforcing unconstitutional laws is the sheer wastage of public money. But more importantly, until this basic flaw within is addressed, certain persons will remain exposed to a denial of their right to life and personal liberty in the worst possible way imaginable. They will suffer the indignity of lawless arrest and detention, for no reason other their poverty and ignorance, and inability to demand their rights.

Apar Gupta is a lawyer and the executive director of the Internet Freedom Foundation. Abhinav Sekhri is a lawyer practising in Delhi. The article is based on their research paper which is part of a series of working papers supported by the Internet Freedom Foundation.

This article was first published in The Hindu on November 5, 2018.