The Supreme Court of India is hearing a petition filed by the Internet Freedom Foundation on an allegation that 22 people have been arrested under Section 66A of ITA 2000/8 which has been scrapped by the Supreme Court in the Shreya Singhal case in 2015. (Refer article here).
A bench consisting of Justice Rohinton F Nariman (who was also the author of the Shreya Singhal judgement) has reportedly made angry comments at the time of admission such as … “We are Shocked”, “We will jail the officials”…etc., and ended up sending a notice to the Central Government to file a reply.
Obviously it appeared as if the Supreme Court has come to a conclusion that a grave mistake has been done by the Central Government.
Actually, the arrests have been done by different State Governments and the notices should have been sent to the state Governments and not to the Central Government. Just because the office of Central Government is in Delhi, Supreme Court cannot make it a party to this complaint. The Central Government can only be a postman in this case and forward a circular to the State Governments and get a reply and thereafter file it with the Court. If the Court expected that the Central Government had to take steps to prevent the State Governments in this regard, it is expecting the Central Government to intervene in the law and order decision of the State.
Further if officials are to be jailed, then the Court may have to jail some magistrates and Judges also since they are equally responsible as the Police and not the “Officials” of the Government. The Supreme Court bench appears to have erred seriously in issuing the notice to the Central Government….unless there is some thing in the petition which we donot know.
We should recall that even the earlier decision to scrap Section 66A was done because some state police did not understand Section 66A and applied it wrongly in some cases. Unfortunately even the Courts did not understand that the error was with the Police and instead of admonishing the Police went on to scrap the section.
The Court is again making the same mistake now and reacting against the Central Government for mistakes which the state police, state prosecutors as well as the judicial authorities have committed.
We recall here our earlier article in April 2017 where we had referred to the judgement of a Telengana Court sentencing a navy person to two years imprisonment under Section 66A. (Refer here).
It was pointed out that in that case the cause of action had arose in 2010 much before Section 66A had been scrapped. It is a matter of a separate debate if the Supreme Court judgement actually had retrospective effect or not.
The problem again has to be laid at the doors of the Supreme Court and Judge Rohinton Nariman himself since while delivering the Shreya Singhal judgement there was no clarification if the decision had a retrospective effect. In such an event all trials and convictions that could have happened earlier should have to be reversed. This is certainly not a desirable option and the precedence in such cases is to always provide prospective effect to such decisions.
In the present instance, it is to be checked if out of the 22 cases being referred now, how may are cases where charge sheets have been filed after the relevant Supreme Court judgement and how many before it.
The Court has no reason to get angry if the cases turn out to be offences committed before the Shreya Singhal judgement.
If not, then it has to question the “continuing education” in the Police and more particularly among the public prosecutors and action has to be initiated on this front.
There is also a possibility that apart from Section 66A, some other section of ITA 2000/8 or IPC might have been included in the chargesheet and the arrest could be attributed to that.
If the defense counsel and a judicial officer has been a party to the decision in addition to the prosecutor and the IO, then the possibility of a reason behind the decision however absurd it appears at first glance is high. Hence the Supreme Court should be patient enough to wait for the replies to be received before jumping to conclusions.
In fact the Supreme Court should send notices to Police academies and Judicial academies to find solutions besides the State Governments for getting more facts about the cases and not to the Central Government.
Believing the petitioner and expressing anger to make news headlines does not indicate that the Court will look at this case impartially. In fact the reading of the news paper reports suggests that the petition has pointed out that it is the trial Courts and prosecutors who are not implementing the Supreme Court decisions. But instead of pulling up these people, Supreme Court issued a notice to the Center for reasons best known to itself, as if the Central Government is the whipping boy for every petition received.
This reflects an invitation for an unwarranted confrontation with the Central Government. This could also lead to confrontation between Center and the States given the kind of State Governments we have in India which see nothing but politics in every decision.
Central Government in its reply should therefore point out its objections to the Supreme Court’s notice being issued to them and request the Court to send notices directly to the concerned State Governments.
We may also recall that when the Shreya Singhal petition was admitted, the bench said “We were waiting why no body had approached us so far…” and hinted that they had already half decided that the petitioner was right and the law was wrong.
The media reporting on such lose comments can create a wrong perception about the neutrality of the Court when a petition is admitted and it is better avoided. In order to ensure that decisions are not biased by the fact that the same judge had given a previous judgement related to the case, the Supreme Court will do well to change the bench hearing this case.