[Editorial Analysis] The ghosts of laws past: on the application of Section 66A of IT Act

Mains Paper 2: Constitution

Prelims level: Section 66A of IT Act

Mains level: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure

Context

• 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.

• 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?

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.

• The facts show that this is far from the truth. From police stations, to trial courts, and all the way up to the High Court.

• Section 66A was still in vogue throughout the legal system.

• The discovery that this is 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.

• The 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.

• 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”.

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.

• 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.

• 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.

Conclusion

• 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 sheer wastage of public money.

• The basic flaw within is addressed, certain persons will remain exposed to 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.

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