Section 66A of the Information Technology Act, 2000 is straight out of a Zombie movie. It just refuses to die, though it quite certainly isn't alive. Killed 5 years ago by Chelameshwar and Rohintan Nariman, JJ, in the Shreya Singhal case in the Supreme Court, it appears that FIRs are still being filed under its provisions.
Let's remind ourselves at the outset what those provisions, added in 2008, state:
Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,shall be punishable with imprisonment for a term which may extend to three years and with fine.
(The Dormant Lawyer particularly likes the use of "menacing character" in the section. Perhaps some day this blog would qualify as possessing that). Not surprisingly, the Supreme Court found the section "over broad" and vague, or to quote Rohintan Nariman, J:
It is thus clear that not only are the expressions used in Section 66A expressions of inexactitude but they are also over broad and would fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.
The Supreme Court thus struck down S. 66A in its entirety as being violative of Art.19(1)(a). It became a dead letter that day onwards (24 March 2015) and it was no longer an offence to send electronic messages "for the purpose of causing annoyance" (and a collective and viral sigh of relief was heaved by Twitter users). But, as reported, apparently the police refuse to believe it is a dead letter and continue to entertain complaints under it.
The latest such instance was quashed gleefully by the Allahabad High Court, but the mind boggles at this stubbornness and activism of the law enforcement authorities. Obviously, TDL is using euphemisms here; it may not be stubbornness/activism but politicking. Or worse, ignorance. Either way, one wonders how often this sort of situation occurs, where a law has been struck from the statute book but still is "in force" somehow. It reminded TDL of the opposite situation: Desuetude, examples of which would be perhaps what most people hoped S. 377 of the Indian Penal Code would become (barring the bestiality bit), before the Supreme Court stepped in anyway. Or perhaps, in a more expanded definition, what the powers of the British monarch have become. Defunct by non-use, whatever may be the reason for the non-use.
Every lawyer remembers taking a course in "Interpretation of Statutes", traditionally in their final year of law school, and would recall the concept of desuetude being taught therein, when dealing with "Expiry and Repeal of Statutes". Desuetude comes to us from Scottish law (and not common law, though the latter did acknowledge the concept of "non-observance" for a while) and refers to the situation where a law might technically be still in force but is not considered to be so by the courts since it has not been enforced for a significant, continuous period of time and there is actual accepted usage that is contrary to it.
To quote Lord Mackay in Brown v. Magistrate of Edinburgh (1931):
[D]esuetude requires for its operation a very considerable period, not merely of neglect but of contrary usage of such a character as practically to infer such completely established habit of the community as to set up a counter law to establish a quasi-repeal.
Wonderfully expounded indeed, especially the quasi-repeal part, which really makes things clear. TDL would also refer you to this very readable scholarly article by Jitendra R. Bhat, J, that appeared in the SCC, which he begins as follows:
The jurisprudential meaning of "desuetude" is that long and continued non-use of law renders it invalid, at least, in the sense that courts will no longer tolerate punishing its violators or transgressors.
Now, desuetude, even on the face of it, appears immediately controversial. It almost goes against that most basic "Ignorantia juris non excusat" principle: if everyone has been ignorant of a law, one is allowed to break it, as it were. But what do we do with the opposite of this situation, where an actual repeal is being ignored? Where a law which does not exist, which has been repealed or rather has been struck down as violating the Constitution, continues to be in force? To twist Lord Mackay's words, does such practice set up a counter law to establish quasi-reinstatement? And what should we call this incredibly inexplicable and unprecedented unprincipled behaviour? Resuetude?
