Implementing Shreya Singhal #1: Bench Contemplates ‘Remedial Measures’ To Stop Use of S.66AImplementation of S.66A IT Act
During a short hearing on September 6th, 2022, Chief Justice U.U. Lalit and Justice S.R. Bhat mulled over a way to ‘course correct’ after widespread non-compliance with the Supreme Court’s (SC) decision in Shreya Singhal v Union of India (2015). In Shreya Singhal, the Court struck down Section 66A of the Information Technology Act, 2000, which made the vague offence of sending false, offensive or inconvenient messages punishable with three years imprisonment.
Despite Shreya Singhal, police authorities have continued to file FIRs and make arrests under S. 66A all over the country. The National Crime Records Bureau’s data showed that over 1,300 cases were filed under the provision even after the Judgment. Appalled by this number, the Supreme Court delivered an Order in 2019 directing the Union and State governments to sensitise the police about Shreya Singhal.
S66A gave the government wide powers to make arrests to protect against ‘information that is grossly offensive or has menacing character’ shared online. The provision was heavily criticised for endangering civil and political liberties.
In March 2015, the Supreme Court declared that S66A was ‘unconstitutionally vague’ in Shreya Singhal v Union of India. The Court said that S66A did not clearly lay down the limits on the government’s power to wield the provision. Further, the provision did not qualify as a reasonable restriction that can be imposed on the freedom of speech and expression. It declared the provision to be ‘void ab initio’, meaning it should be treated as though it never existed.
Shreya Singhal stated that all pending cases under the provision would be dismissed. In 2018, a working paper disclosed that S66A continued to exist as a ‘legal zombie’– new FIRs were still being filed under the provision after it was struck down.
In 2019, the NGO People’s Union for Civil Liberties (PUCL) approached the Supreme Court, seeking directions for the implementation of the Judgment. The Court directed that copies of the Judgment should be made available to the Chief Secretaries of all states, who in turn would educate the police about the development. However, citizens continued to be arrested for their ‘offensive’ speech online.
PUCL sought further directions from the Court to ensure that S66A is not used to make unconstitutional arrests.
Bench Directs Union to ‘Impress Upon’ States Still Using S. 66A That They Must Comply With Shreya Singhal
The NGO People’s Union for Civil Liberties (PUCL) brought this case back to Court with the current petition in 2021. Representing PUCL today, Senior Advocate Sanjay Parikh argued that the police in many states, including Jammu and Kashmir, Jharkhand and Madhya Pradesh, continue to file FIRs under S. 66A. Some states, including Uttar Pradesh and Himachal Pradesh, informed the Court that there were no new or pending S. 66A cases in their jurisdiction.
The Union government has insisted all along that implementation of Shreya Singhal is not in its ken—State governments must create location regulations to ensure that the police comply. In its petition, PUCL argued that the Union shirked its responsibility to ensure implementation of the Court’s decisions. The Union could have ensured implementation through the Ministry of Electronics and Information Technology, State Governors as well as the Directors General of Police.
Today, the Bench tasked Advocate Zoheb Hussain, representing the Union, with finding out which State governments were non-compliant with Shreya Singhal. Mr. Hussain must also impress upon State governments, through their Chief Secretaries, that it is essential to take remedial measures.
Contemplating the best way to address this issue without clogging up the Court’s docket, CJI Lalit recounted former CJI A.S. Anand’s solution for ensuring implementation of D.K. Basu. CJI Anand ensured the implementation of the arrest guidelines in D.K. Basu v State of West Bengal (1998) by making High Courts responsible for holding errant police officers in contempt. However, CJI Lalit did not issue similar instructions today.
Mr. Hussain will return to the Court with an update in three weeks.