The Supreme Court on Monday issued notice to all states and Union Territories (UTs) on a petition, seeking direction to the Centre to advise all police stations against registering FIRs under Section 66A, which was declared unconstitutional by the top court on March 24, 2015.
The bench of Justice R.F. Nariman and Justice B.R. Gavai issued notice to the States and Registrars of all High Courts, so that a strong order could be passed in this matter.
In its March 24, 2015 judgement in the Shreya Singhal vs Union of India case, the apex court had said, “Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).”
“In spite of the judgement, it became clear from the newspaper reports that the said provision continued to be invoked by the state’s investigative machinery as well as the judiciary, probably under the impression that Section 66A remained on the statute books,” the petition by People’s Union for Civil Liberties (PUCL) contended.
The NGO had filed a rejoinder affidavit in the Supreme Court on July 30 in the application, alleging that despite the Court’s February 2019 order, Section 66A of the Information Technology Act continues to be used in police stations as well as in trial courts across the country.
The affidavit has been filed by Dr. V. Suresh, National General Secretary of PUCL.
The Rejoinder Affidavit has been divided into three parts-
A. STEPS TAKEN BY THE UNION OF INDIA, WHETHER ADEQUATE-
According to the affidavit , the steps taken by the Ministry of Electronics and Information Technology (MeitY) towards ensuring effective implementation of the Apex Court’s Judgment in Shreya Singhal vs Union of India (2015) 5 SCC 1 are far from adequate. The Union of India (UOI) has said that ‘Police’ and ‘Public Order’ are State subjects and that primary responsibility rests with the State. Similarly, for cyber crime offenders, law enforcement agencies are responsible, alleged the affidavit.
It is submitted that UOI ought not to have shirked its responsibility by pleading that responsibility lies with the States as well as with law enforcement agencies. In view of the fact that the Application involves the question of enforcement of this Shreya Singhal Judgment which is binding on the UOI and others, the UOI has to play a sincere and pro-active role to ensure the implementation.
B. DIRECTIONS REQUIRED FOR EFFECTIVE IMPLEMENTATION OF THE JUDGMENT IN SHREYA SINGHAL –
The affidavit states that the expression “authorities” in Article 144 has to be given the widest amplitude to include all members of the executive and judiciary, in view of the settled position of law and the need to uphold the dignity of courts, the majesty of the law, and to prevent any interference in the administration of justice.
In order to ensure that Apex Court’s Judgment in Shreya Singhal is effectively implemented , PUCL suggested following steps :-
a. Direct the Respondents to collect the details of the cases registered by the Police/Law Enforcement Agencies under Section 66A of the IT Act since the pronouncement of the Judgment in Shreya Singhal by co-ordinating with the Chief Secretaries/DGPs of the States and Union Territories.
b. In cases where the case is at the stage of investigation, direct the Director General of Police in the States and the Administrators/Lieutenant Governors in the cases of Union Territories to forthwith drop further investigation under Section 66A.
c. In cases where charge sheet under Section 173 Cr.P.C. has been filed and the cases are pending before the District Courts for framing of charge or trial, request the Chief Justices of all the High Courts to issue advisories to all the subordinate courts (both Sessions Courts and Magistrate Courts) to drop all charges/trial under Section 66A and discharge the accused.
d. Direct all the High Courts (through Registrar Generals) to communicate to all the District Courts and Magistrates that forthwith there should be no cognizance taken under the repealed Section 66A of the IT Act.
e. Direct each High Court (through Registrar Generals) to put in place a complaint mechanism by which any person in the state against whom a case under Section 66A of the IT Act is pending may directly approach the trial Court where the case is pending or the concerned High Court for speedy redressal.
f. Direct the DGPs of all the States/Administrators of all the UTs to initiate disciplinary action against the Police/Law Enforcement Agencies that are found to be registering cases under the repealed Section 66A of the IT Act.
g. Allow the High Courts to initiate suo motu contempt proceedings against those responsible for registering a case under Section 66A or for investigating it or for prosecuting it in spite of being informed that Section 66A has been struck down.
h. Direct the DGPs of all States and Union Territories to communicate to all police stations within their respective jurisdictions to display a notice that Section 66A of the IT Act has been struck down by the Top Court in Shreya Singhal and that no case under the said provision can be registered.
i. Direct the Respondents to ensure that Doordarshan and All India Radio make quarterly announcements in major vernacular languages informing the public that Section 66A of the IT Act is no longer in force in light of the judgment in Shreya Singhal.
j. Direct the Respondents to ensure publication in major vernacular language newspapers on quarterly basis informing the public that Section 66A of the IT Act is no longer in force in light of the judgment in Shreya Singhal.
k. Direct the Respondents to ensure that all official and commercial versions of the IT Act that are hereinafter published (online or offline) do not include the complete text of Section 66A and inform the reader that said provision stands repealed in light of the judgment in Shreya Singhal.
l. Direct the National Judicial Academy and the State Judicial Academies to incorporate the Supreme Court’s Judgment in Shreya Singhal as part of the training imparted to judges.
m. Direct the UOI to ensure that all police training colleges both at the National Level and the State Levels will mandatorily advise all trainees about the Judgment and the fact that Section 66A of the IT Act has been repealed and can no longer be invoked.
n. Ensure that the above (except points (l. and m.) are complied with in a time bound manner, not later than October 31, 2021.
C. HOW EFFECTIVE IMPLEMENTATION OF THE JUDGMENTS OF THIS HON’BLE COURT CAN BE ENSURED-
The PUCL raises a larger question about implementation of the Judgments of the Top Court which are binding on all the authorities and Courts under Articles 141, 142 and 144 of the Constitution. Non-implementation of the Judgment has a serious repercussion on the administration of justice as well as the Rule of Law.
Following submissions has been made by the PUCL-
a. That in all important cases where the Top Court is of the view that the directions given in the judgements ought to be implemented strictly, it can direct the Registry to send a copy to the concerned authorities (viz: Chief Secretaries, DGPs of all the States, Administrators of all UTs, all High Courts and District Courts, Jail Authorities etc.) asking them to file a compliance affidavit within reasonable time.
b. That in addition to the above, accountability may be fixed on the authorities responsible for its implementation. The Apex Court may further direct initiation of disciplinary action as well as the contempt proceedings for contumacious inaction or deliberate violation.
c. That Supreme Court may direct that the Judgment will be a part of training in the National Judicial Academy/State Judicial Academies. In addition, depending upon the directions, it should also be included in the training courses of administrative services/police services.
d. That Supreme Court may also direct/request all High Courts to create a mechanism for effective communication to the District Courts and Magistrates, within their respective jurisdictions, of the directions passed by the Supreme Court.
e. Direct/request all the High Courts to communicate to District Courts and Magistrates that there should be no cognizance taken under the repealed provision in cases where a statute or a provision in a statute is struck down.
f. Direct the UOI to prepare advisories and a document summarising the directions passed by the Supreme Court which can be displayed in prominent places in police stations/public places and instruct DGPs of all States and Union Territories to ensure that the same is displayed at all the police stations.
g. Direct the Union of India to ensure that Doordarshan and All India Radio make quarterly announcements in major vernacular languages informing the public about the directions issued by the Supreme Court.
h. Direct the Union of India to ensure publication in major vernacular language newspapers on quarterly basis informing the public about the directions issued by the Apex Court.
i. In cases where a statute or a provision has been struck down, direct the Respondents to ensure that all official and commercial versions of the statute that are published (online or offline) after the pronouncement of the Judgment do not include the complete text of the repealed provision and inform the reader that said provision stands repealed in light of the concerned Judgment.
j. Direct Union of India through its department of publication to publish in the Gazette of India summaries of all the judgements where a provision in the statute has been struck down or read down as unconstitutional.
It is pertinent to note that the Supreme Court on July 05 while hearing the application of PUCL, came down heavily on the Union government over people still being booked under Section 66A of the Information Technology Act, calling it “amazing and shocking.” In March 2015, Section 66A was struck down by the top court.
In 2012, law student Shreya Singhal filed the first PIL in the Supreme Court on the misuse of Section 66A. The PIL was filed following arrests of two girls in Maharashtra who objected to a bandh called in Mumbai by the Shiv Sena after the demise of its founder Bal Thackeray. While one was arrested for posting a Facebook post against the bandh call, the other was held for “liking” it.