On March 24, 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.
Seven years later, the Supreme Court of India has had to grapple, for the second time, with a shocking reality – that people continue to face criminal prosecution for constitutionally protected speech under a law that no longer exists.
A Quick Refresher
The issues raised in this strategic litigation pertain to one of India’s most landmark victories in the fight to protect free speech online. In Shreya Singhal v. Union of India, the Indian Supreme Court had struck down Section 66A as unconstitutional. The provision criminalized “offensive” online speech, or speech which the author knew “to be false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”, or speech “meant to deceive or mislead the recipient about the origin of such messages”. Offenders could face imprisonment up to three years. The Court found that the provision was vague and overbroad – a significant finding given that the provision was overwhelmingly used to crush political dissent, and silence social and political commentary on social media and the internet.
As explained in a previous post, it eventually became clear that there was a massive distance between the Court and on-ground realities. A paper by the Internet Freedom Foundation, and a subsequent application by People’s Union for Civil Liberties (petitioners in the original case) demonstrated to the Supreme Court that the police, prosecution and courts alike acted in ignorance of the decision of the highest court, with significant impacts on the rights of internet users. The Supreme Court disposed of the application directing that all High Courts, State Governments and State Police Departments must circulate copies of the judgment in Shreya Singhal to the grassroot level.
Zombies in Law
The need for concerted and collaborative research became evident through this case. The Internet Freedom Foundation, in collaboration with Civic Data Lab built a platform called the Zombie Tracker, which collected data from district courts in 11 States to track cases with a charge under Section 66A. The Zombie Tracker found that nearly twice as many cases were instituted in the six years since Section 66A was ruled unconstitutional (1307), than in the six years that it existed on the law books (681)! Nearly 800 cases were still pending before the Courts by March 2020.
PUCL once again approached the Supreme Court in July, 2021, in an application for directions. This time the application made 24 recommendations (in paras 15 and 18) to ensure that the Supreme Court’s decisions in general, and the judgment in Shreya Singhal in particular, are actually implemented on the ground. For example, the Application recommended that accountability may be fixed on the authorities responsible for its implementation. The Application also recommended less severe means, such as ensuring that all official and commercial versions of statutes that are published (online or offline) after the pronouncement of similar Judgments inform the reader that the said provision stands repealed in light of the concerned Judgment.
Since the Zombie Tracker was constrained by resources, and was only able to gather data from 11 states (out of the 28 states and 8 Union Territories of India), the Supreme Court ordered all States, Union Territories and High Courts of India to provide on affidavit the data relating to prosecutions and cases under this section, as well as the measure undertaken to implement Shreya Singhal.
While the case was pending, the Police Departments, Governments and High Courts of several States replied confirming that cases under Section 66A continued in their States. As a direct result of the Application and the Supreme Court’s cognisance of the matter, several Police Departments, Governments and High Courts of States issued orders, notifications and directions to lower officials that pending cases under Section 66A must be closed, and that no new cases must be registered. A total of 33 such orders and notifications were issued across India (full list available here). It was also clear from the responses from some of the States that cases were closed in response to the Supreme Court cognisance of PUCL’s application.
In its final order, on October 12, 2022, the Supreme Court ordered that all pending cases, investigations and prosecutions under Section 66A shall stand closed, and no new cases shall be registered. The Supreme Court also ordered that whenever any publication (Government or Private) about the Information Technology Act is made and Section 66A is quoted, the readers must be adequately informed about the fact that the provisions of Section 66A have been found by the Supreme Court to violate the Constitution of India.
Some lessons: The afterlife of strategic litigation
Shreya Singhal was widely considered one of India’s most successful attempts at strategic litigation on digital rights. Yet, the Petitioner, PUCL, was forced to go back to the Supreme Court twice to ensure that its orders are being implemented. These successive cases offer key insights into the afterlife of litigation.
First, it is important to acknowledge that the decisions of constitutional courts are not self-executing. Cases such as Shreya Singhal, and the Supreme Court decision on desegregation of public education in the US, among others, highlight that even where implementation is seemingly simple, the government is not a monolith and the implementation of landmark decisions may require successive litigation to hold different actors accountable.
Second, the burden of this failure to implement decisions is not borne equally. The initial paper by Internet Freedom Foundation suggested that in the absence of proactive implementation by Courts, the only means to enforce Shreya Singhal was where defence counsel spurred the system into action. Such a scenario uniquely disadvantages persons without the means to afford quality legal counsel and the resources to move the system. This highlights the need for civil society to stay vigilant in its public advocacy and invest in community-driven strategic litigation, even after landmark victories have been won in the Courtroom.
Finally, the case draws attention to a particular roadblock to implementing court decisions: data accessibility. As highlighted in a letter to the Supreme Court’s e-courts Committee, the issues of non-standardization of data as well as the failure to ensure a complete data set of judgments in this case posed a significant roadblock to study the implementation of the judgment. These projects are also resource-intensive and require significant investment by civil society. The successful monitoring of court decisions may require courts to facilitate data-driven research by independent civil society research and invest in expanding data accessibility in public databases on court processes.
Note: The authors were counsels for People’s Union for Civil Liberties in the case.