The ghosts of laws past: on the application of Section 66A
of IT Act
Mains Paper 2: Constitution
Prelims level: Section 66A of IT Act
Mains level: Indian Constitution- historical underpinnings, evolution, features,
amendments, significant provisions and basic structure
• In 2015, the Supreme Court struck down Section 66A of the Information
Technology (IT) Act, 2000, as unconstitutional. T
• That decision, Shreya Singhal v. Union of India, was heaped with praise by
domestic and foreign media alike.
• Media outlets have reported other instances where Section 66A has been invoked
by the police, all of which points to an obvious, and serious, concern.
• What is the point of that landmark decision if the police still jail persons
under unconstitutional laws?
• Media reports on the continued application of Section 66A lend themselves to a
narrative: the oft-maligned police are abusing their power in hamlets to commit
the most obvious wrongs.
• The facts show that this is far from the truth. From police stations, to trial
courts, and all the way up to the High Court.
• Section 66A was still in vogue throughout the legal system.
• The discovery that this is issue of applying unconstitutional penal laws long
preceded Shreya Singhal and Section 66A.
• Before the recent decisions that held provisions in the Indian Penal Code as
unconstitutional (in whole or in part), the Supreme Court had famously done
this, in 1983, by striking down Section 303 of the Indian Penal Code in Mithu v.
State of Punjab.
• In 2012, years after Section 303 had been struck down, the Rajasthan High
Court intervened to save a person from being hanged for being convicted under
The weakest branch?
• Since we did not subscribe to a narrative of wanton abuse by the authorities
in their applying unconstitutional laws, we examined why such instances would
• The primary reason for poor enforcement of judicial declarations of
unconstitutionality is signal failures between different branches of government.
• Today, the work of the Supreme Court has firmly placed it within the public
consciousness in India.
• It is common to read reports about the court asking States and other litigants
for updates about compliance with its orders.
• While this monitoring function is one that the court can perform while a
litigation is pending, it cannot do so after finally deciding a case, even after
directions for compliance are issued.
• Instead, it needs help from the legislature and executive to ensure its final
decisions are enforced.
• This was one of the reasons why Alexander Hamilton famously labelled the
judiciary as “the least dangerous branch”.
Identifying signal failures
• For any bureaucratic structure to survive, it needs working communication
channels for sharing information.
• The same analogy applies here.
• The probability of decisions taken at the highest echelons of a system being
faithfully applied at the lowest rungs greatly depends on how efficiently word
gets to the ground.
• At present, even getting information across about court decisions is an area
where the judiciary needs help.
• Parliament amends a statute to remove the provision declared unconstitutional,
that provision continues to remain on the statute book.
• This is why both Sections 66A and 303 are still a part of both the official
version of statutes published on India Code and commercially published copies.
• The commercially published versions at least put an asterisk to mention the
court decision, no such information is provided in the official India Code
• There is a pressing need to move from a system where communication about
judicial decisions is at the mercy of initiatives by scrupulous officers, to a
method not contingent on human error to the greatest possible extent.
• The urgency cannot be overstated. Enforcing unconstitutional laws is sheer
wastage of public money.
• The basic flaw within is addressed, certain persons will remain exposed to
denial of their right to life and personal liberty in the worst possible way
• They will suffer the indignity of lawless arrest and detention, for no reason
other their poverty and ignorance, and inability to demand their rights.
Q.1) 1. The Supreme Court quashed section 66A of the IT act. It did so on
which of the following basis?
1. the punishment prescribed was extreme.
2. expressions in the section were vague.
3. it had no proximate relationship to public order.
Select the correct answer using the codes given below.
a) 1 and 2 only
b) 1 and 3 only
c) 2 and 3 only
d) 1, 2 and 3
Q.1) How Section 66A and other legal zombies have a tendency to inhabit the
Indian legal system after their legal deaths?