Unconstitutional Section 66A A “Legal Zombie”, Continues To Be Used Across India: Study

Section 66-A of the Information Technology Act, 2000 continues to be used across India, despite having been declared unconstitutional by the Supreme Court in Shreya Singhal v. Union of India, a study has found.

The paper, co-authored by Abhinav Sekhri and Apar Gupta, calls Section 66A a “legal zombie”, which despite more than three years having passed since the judgment, continues to haunt the Indian criminal process.

“Right from the police station, to trial courts, and all the way to High Courts, one finds that Section 66-A is still in use despite it being denied a place on the statute book,” it says.

The papers analyses three distinct data sets—online legal databases, the National Crime Records Bureau, and press reports—to emphasise on the premise that the provision is still being applied by law enforcement agencies.

For instance, advanced searches over two online databases, IndianKanoon and Supreme Court Cases Online, revealed a total of 45 cases and 21 cases respectively, which involved the provision. With certain caveats regarding the limitations of the research conducted, the paper asserts that several fresh cases have also arisen after Section 66A was declared unconstitutional.

It draws two broad inferences from this data: firstly, that some prosecuting agencies and magistrates across the country have not been proactive in giving effect to Shreya Singhal; and secondly, that the predominant method for enforcement of Shreya Singhal relies on defendants spurring the legal system into action.

“Placing the burden on defendants carries obvious drawbacks: it means enforcement depends on the means of a defendant, and whether her counsel was able to explain the illegality to court. What if the lawyer did not make this claim? It seems that courts simply went on with the case as if Section 66-A was valid,” it explains.

With regard to data from the National Crime Records Bureau (NCRB), the paper says that while NCRB data for 2015 and 2016 showed that widespread arrests continued despite Shreya Singhal, a “corrigenda” issued in 2016 clarified that those numbers were incorrect due to an error in the internal data processing system. The NCRB also said that it will not publish data on Section 66-A in subsequent Crime in India reports.

“The net result is that not only do we lack an authoritative figure for the number of arrests under Section 66-A in the years prior to Shreya Singhal, but also that the government eliminated a data point for checking the continued forays of this legal zombie. Nevertheless, the tainted NCRB data still supports our inferences drawn from the other data sets that despite its constitutional death, Section 66-A continues a ghostly after life in police stations and courts across India,” the paper says.

It then argues that its continued use is a product of communication failures between the branches of State, and suggests that the court may issue directions more generally in a case taking suo motu cognizance of this widespread non-compliance.

Further, the paper asserts that a more lasting solution would be to require parliament and the executive to take action first, explaining, “For instance, create a procedure for the automatic tabling of an amendment to give effect to the Supreme Court decision like the rules pushed through under many statutes by the executive. If not specifically voted against, the same becomes law that will then be circulated through the Gazette. Or, why not initiate debates on changing the Gazette itself, to include another section on Supreme Court judgments of constitutional import.”