IS IT VALID TO ARREST UNDER SEC 66A DESPITE SC’s RULING



The primary reason that sec 66A continues to be used is because the pertinent authorities are unaware of the fact that has been struck down long before. On March 20, 2017, the Uttarakhand High Court accorded the status of living human entity to the rivers Ganga and Yamuna. The same day, Zakir Ali Tyagi, an 18-year-old from Muzaffarnagar, Uttar Pradesh posted a comment on Facebook questioning whether "criminal charges would be initiated if someone drowned in the Ganga”.

On March 30, Tyagi noted in a Facebook post that the chief minister had 28 cases pending against him, of which 22 were serious. Tyagi was booked under Section 66A of the Information Technology Act (IT Act), a statute that criminalised sending offensive messages online. He was additionally booked under Section 420 (cheating) of the Indian Penal Code (IPC), because Tyagi had changed his Facebook profile photograph to that of slain sub-inspector, Akhtar Ali, to pay homage to the officer who was killed in an exchange of fire during a raid to arrest a suspected criminal at Dadri, Noida. Except that Section 66A had been struck down by the Supreme Court in March 2015, two years before it was used by the police against Tyagi, because the top court found the statute too vague to be applied.

“There is no system in place to give proper effect to the decisions of the Supreme Court of such significant import,” co-author Gupta, also executive director of the Internet Freedom Foundation, told IndiaSpend. “There exists a lack of mutual respect between the judiciary and executive, and the power balance skewed in favour of the executive allows it to get away with the abuse of the law.”

It has been apprehended that Section 66A continues to be used because the pertinent authorities do not know that it has been struck down, simply because we could not assume that the police, prosecutors and courts are actively committing contempt by refusing to stop cases under Section 66A, or that they see the decision as not requiring them to act to offer relief to defendants of pending cases. That said, we found it fairly plausible that authorities don’t know about the decision on Section 66A, because when a law is declared unconstitutional, it is not automatically deleted from the statute books. Statutes can only be changed via an amendment, and if parliament does not pass an enabling amendment to give effect to the Supreme Court decision, then the unconstitutional provision will remain in the text. So, if one accesses India Code—the official source for the text of central statutes—Section 66A still exists.

Commercial publishers such as Universal, LexisNexis and Commercial that are required to faithfully reproduce the official text of statutes also carry unconstitutional provisions, often with a footnote citing the Supreme Court decision.

How else could the lower courts and police force get to know that Section 66A had been struck down? Through the government’s official gazette, which carries updates on new legislation or rules? It doesn’t carry details of recent judicial decisions of constitutional import. Through government advisories or notifications? While an advisory was issued to chief secretaries and director generals during the litigation asking them to use Section 66A with restraint and prior approval of their administrative superiors, no advisory or notification was addressed to the same set of persons informing them about the decision itself

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