[op-ed snap] The ghosts of laws past: on the application of Section 66A of IT Act

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Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: IT Act

Mains level: Prevalence of unconstitutional laws even after their removal and its consequences


Context

Section 66A of the IT Act still used

  1. In 2015, the Supreme Court struck down Section 66A of the Information Technology (IT) Act, 2000, as unconstitutional
  2. The decision in Shreya Singhal v. Union of India was heaped with praise by domestic and foreign media alike
  3. But since then, media outlets have reported other instances where Section 66A has been invoked by the police
  4. This points to an obvious, and serious, concern: what is the point of that landmark decision if the police still jail persons under unconstitutional laws?

Reasons behind continued used of unconstitutional laws

  1. A primary reason for the poor enforcement of judicial declarations of unconstitutionality is signal failures between different branches of government
  2. For any bureaucratic structure to survive, it needs working communication channels for sharing information
  3. There 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
  4. 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
  5. So, unless Parliament amends a statute to remove the provision declared unconstitutional, that provision continues to remain on the statute book
  6. Sections 66A is still a part of both the official version of statutes published on India Code and commercially published copies
  7. 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

Impact of applying unconstitutional laws

  1. Due to this, certain persons will remain exposed to a denial of their right to life and personal liberty in the worst possible way imaginable
  2. They will suffer the indignity of lawless arrest and detention, for no reason other their poverty and ignorance, and inability to demand their rights

Judiciary’s limits

  1. Today, the work of the Supreme Court has firmly placed it within the public consciousness in India
  2. 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)
  3. 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
  4. Instead, it needs help from the legislature and executive to ensure its final decisions are enforced

Way forward

  1. 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
  2. Enforcing unconstitutional laws is sheer wastage of public money
Freedom of Speech – Defamation, Sedition, etc.
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