With a singular aim — to harass citizens

Section 66A of the IT Act was struck down by the court in 2015 and is still alive and kicking

There have often been questions about the rule of law in the country, and numerous instances of the law not being followed or enforced are known. But strangely, the country is also ruled by laws that do not exist and have expired. This was clear from a case before the Supreme Court which said that Section 66A of the Information Technology (IT) Act, which was struck down by the court in 2015, is still alive and kicking, and is being used by the police to book people. The court said it was “shocking’’ and “distressing’’, noting that the number of cases registered under the section had increased five times after 2015. The petitioner, People’s Union for Civil Liberties (PUCL), told the court that while there were 229 cases pending in 11 states when the law was scrapped,1,307 cases were added in the next seven years.

Section 66A authorised the police to arrest people for social media posts construed as “offensive” or “menacing”. The court, in the Shreya Singhal case, struck down the section as arbitrary and violative of fundamental rights. It also barred registration of fresh cases under it and ordered a stop to prosecutions pending before courts. It directed state chief secretaries and police chiefs in 2019 to sensitise police departments about the scrapping of the section. High Courts were told to give copies of the judgement to district judges to ensure that cases under the defunct law were terminated. However, police continued to book cases, and trial courts framed charges under it. In Delhi, a non-bailable warrant was issued against an accused under the section and a trial was held in Karnataka, though it ended in the acquittal of the accused. The Attorney-General told the Supreme Court that the section remained on the statute, with a footnote saying that it has been struck down, but police officers failed to notice it and registered cases under it. He suggested that the section be marked as “struck down” with the footnote reading that it did not exist anymore.

It is a bad situation in which a law that does not exist is invoked to file cases against people and courts even conduct trials under it. The excuse that the police failed to read the footnote is worse. It is an absurd, Kafkaesque situation when people are charged with an offence that does not exist. What is imagined in Kafka is actually experienced in real life. It is for the executive to ensure that the highest court’s orders and directions are enforced without fail. Existing laws are often misused, and now there is a rule of no-law to aid harassment.