Article 141 says the law declared by the Supreme Court shall be binding on all courts within the territory of India. Every judgement on important constitutional issue is the ‘law’ of the Supreme Court. It is binding on all courts in India should mean that it is law for entire country. Will Police and Government say that it is binding only on courts but not on them? Their actions are saying so. Example is booking more than thousand cases in several states under Section 66A Information Technology Act 2000, which was declared unconstitutional in 2015.
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More than 1300 cases in 6 years
This provision made messages deemed by the police to be offensive or menacing to anyone, or those that caused “annoyance”, a criminal offence if these were sent through a computer or computer resource. It prescribed a prison term of up to three years on conviction. The SC held that the expressions used in Section 66A were open-ended, undefined and therefore arbitrary and violative of Article 19(1)(a). The audacity of the police and the Government machineries in states was revealed when the PUCL told the Supreme Court there were 1307 cases registered by the police after that judgment, in the last 6 years. Some of the police believe that such penal section is needed to control the atrocious postings on social media. They also quote certain incidents where police became helpless because of Supreme Court’s striking down of the section.
Police officers just don’t care!
It was not for the first time that it was brought to notice of Supreme Court. In January 2019, too, the Supreme Court was requested to stop the misuse of this section. There are complaints, and police acted on them by registering cases under Section 66A, though it was invalidated. Court expressed surprise at that time also. Nothing happened. Emboldened police officers continued to use or abuse the struck down penal definition. The police headquarters and prosecutors in different States did not care about these surprises. They have not disseminated the invalidating effect of the Court ruling among officers manning police stations.
What is more surprising is that the courts have framed charges under Section 66A even after the lawyers cited the Shreya Singhal Judgment of 2015 and that such section is no longer on statute.
The PUCL in its PIL told the Court that as many as 745 cases are still pending in district courts in 11 States. Some people may not really know this invalidation and perhaps out of that ignorance filed a complaint. We cannot say that police and prosecution offices also do not know. It is possible that they may not know. But their ignorance of law is no excuse. None can excuse them on this excuse. There is also a possibility that some police officers might have deliberately used it to harass the people. Like slapping false cases and enjoy sadist pleasure as they suffer in jail till the courts discover it as false, the arrested persons under Section 66A also have to suffer until the trial courts decide the innocence. If the magistrates themselves are ignorant of law or do not care when lawyers have brought to knowledge of the magistrates, what could be done.
It is straight breach of Article 141 by magistrates. When it is so specifically stated that invalidation of such section is declared by SC and that is law applicable for all the courts, how can courts defy it? The police and prosecutors who are perpetuating this abuse, should be jailed for contempt of court. There should be a severe disciplinary action against the magistrates for framing charges under this section, even if that implies dismissal from service. It will not be a punishment but preventing them from depriving some more persons of their rights.
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If the PIL by PUCL is pursued further the court may directions directions to States and the police, as well as the court registries, for appropriate advisories to both station-house officers and magistrates. Why should Supreme Court do this job when there is nothing that they need to pronounce about the Constitutionality of any action? Why should they waste their valuable time? How many times the SC should tell the states not to use S66a? Why not the executive act in accordance with Constitution, and the law as laid down by the Supreme Court?
If the Contempt of Court law should remain in statute book, it should be only to punish such defiance of SC law by the Government machinery. Forget punishing people who write against judiciary, and penalise those who defy the just law declared by the apex court.
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The writer is Dean & Professor, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner