On 24th March, 2015, the Supreme Court of India struck down Section 66A of the Information Technology Act, 2000 as unconstitutional, in Shreya Singhal v. Union of India. Widely celebrated as a landmark judgment on free speech, the decision adopted progressive international standards of free speech and ensured that the strict scrutiny of standards for freedom of expression was equally applicable over the internet.

 In February 2019, almost four years later, the Supreme Court grappled with this provision’s continued existence- a litigation that highlights key questions about the gap between judicial decisions and real-life outcomes.

Background

Section 66A of the Information Technology Act, 2000 was struck down as unconstitutional in Shreya Singhal v. Union of India, (2015) 5 SCC 1. The provision criminalized speech over computers or communication devices if such a communication was (a) “grossly offensive or menacing”; (b) where the author  knows the information “to be false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will” or “meant to deceive or mislead the recipient about the origin of such messages, etc, shall be punishable with imprisonment up to three years and with fine.”

The wide powers of the section were frequently used to stifle political dissent. The Supreme Court considered the provision vague and overbroad, such that it also penalized speech that was constitutionally protected. The Court placed reliance on international and domestic standards and found that the provision arbitrarily and disproportionately affected the right to free speech. Significantly, the Court found that the provision was not ‘severable’ and no part of the provision could be saved by reading it down.  Therefore, the provision in its entirety was found to violate Articles 19(1)(a) and 21 of the Indian Constitution. This would have meant that the provision, being enacted after the Constitution, was ‘still-born’ or was deemed to never have existed on the statute books.

Legal Zombies

 The story should have ended there. However, shockingly, a working paper of the Internet Freedom Foundation [1] conducted a study on the continued use of the Section and found about 65 to 70 cases cumulatively in different legal databases. These only reflected cases which reached Courts. It was clear that the available data was only the tip of the iceberg and fresh cases were being registered in police stations, investigated and thereafter, considered by lower Courts. The authors termed this phenomenon as a  “Legal Zombie,” a mysterious post-death existence for a provision that was struck down.  The study hypothesized that this reflected a ‘signal failure’, that is, the failure of the executive, legislature and judiciary to respond to the judicial development.

First, according to the report, no change in text has been carried out in statute books, through an amendment. At best, commercial publishers would include a footnote indicating that the provision was struck down.  Second, there was insufficient dissemination of the judgment through official channels by the executive. Finally, the supervisory role of the Supreme Court was ineffective in ensuring awareness by lower Courts. The Court had also failed to provide specific directions for the dissemination of the judgment.

Back to Court

 The study put the continued use of 66A on the radar and the People’s Union for Civil Liberties, one of the petitioners in the original case, once again approached the Supreme Court in January, 2019, in an application for directions. The application considered that specific directions to ensure implementation of Court’s decisions, as well as to raise legal awareness, were provided for by the Supreme Court – in the case of laws prohibiting sex-selective abortion, police reforms [2] and most recently, the decriminalization of “carnal intercourse against the order of nature” [3] a law that targeted LGBTQI+ persons. Keeping in view the possible solutions that could arise out of Courts, the application sought that a copy of the Shreya Singhal judgement be issued through appropriate circulars to all Chief Secretaries of States, and onwards to Directors Generals of Police. A similar direction was sought  to all High Courts, for further dissemination to the District Courts under their jurisdiction. Finally, the application requested that the High Courts pass necessary orders in all pending cases of 66A to ensure disposal.

Some Victories

The Supreme Court allowed the request with respect to dissemination of the judgment by order dated 15.02.2019. However, perhaps, the real win lies in developments through the course of litigation. The first of these came soon after the petition was filed – it appears that electronic copies of the Information Technology Act, 2000 on IndiaCode (the official electronic version) had been updated by the Government, now including a footnote informing of the Section’s unconstitutional nature.

Thereafter, when the case came up for hearing on 07.01.2019, the Court directed that the Union of India file a response with data regarding pending cases and details of steps taken to ensure compliance. It is clear from the reply the Union of India wrote to all States and Union Territories, in compliance of the said order. The reply also annexed the response of 6 States, all undertaking to ensure implementation. The response of the States not only confirmed the existence of fresh cases registered after the judgment, but also led to recognition of the need for proactive action. For instance, the State of Kerala filed closing reports in 15 cases where investigation was pending and undertook to take appropriate action in the remaining 4 cases.

Conclusion: Some Lessons

 The present litigation was an opportunity to grapple with  a  challenge following strategic litigation- the challenge of post-decisional oversight and implementation. The attempt to follow up the 2015 decision with further litigation, at the least, appeared to initiate dialogue and confirm the existence of a systemic problem. The ability to access the Supreme Court regarding issues in the public interest, an option that may not always be available to individuals with poor legal access or awareness, did have some visible impact as well. Further, if the systemic gap was the absence of specific directions on dissemination , the order of the Court is likely to yield further results in the weeks to come.

At the same time, there are obvious limits to the use of Courts as an implementation tool. In essence, the result of the litigation may have been replacing one decision with another dictum by the same Court, especially where the Court has elected to not proactively monitor action taken in pending cases. Indeed, it is clear that strategic litigators have to look beyond Courts and require active collaboration with efforts of advocacy and awareness-building. Possibly, the ultimate solution may be legislative. PUCL and IFF hope to continue monitoring the effect of the judgment, going forward.