Disable unconstitutional sections

Relevance: Laws that are declared unconstitutional by the judiciary, are still in use. What policy measures are required to ensure the proper implementation of orders.

Synopsis:

The police must ensure that no FIR is registered under unconstitutional sections and no one is harassed for the negligent actions of SHOs. A multipronged approach is desired to achieve this objective. This includes regular training, disabling online registration of FIR under unconstitutional sections and taking corrective actions against negligent police officers.

Background:

• Recently, the Supreme Court expressed shock while hearing an application filed by the People’s Union for Civil Liberties (PUCL). 
  • It observed that criminal cases are still being registered by the police under Section 66A of the Information Technology (IT) Act, 2000. However, the section was declared unconstitutional by the SC in 2015 (Shreya Singhal v. Union of India).
• The PUCL said that 1,307 cases had been registered since 2015 across the States. Therefore, the Court must issue guidelines against registering FIRs by the police under this head.
  • Undoubtedly, the registration of FIRs by the police under these sections is illegal and violative of the Court’s directions.

Sections declared unconstitutional by the court:

• In 2015, the Supreme Court had declared Section 66A of the IT Act as unconstitutional. The section made the online posting of information considered as “grossly offensive” a crime punishable by jail. 
  • However, the court held that it was violative of Article 19(1)(a) of the Constitution and not saved under the ambit of reasonable restrictions defined in Article 19(2). 
  • It had also said that the expressions used in Section 66A were open-ended, undefined, and therefore arbitrary.
• In 1983, the Court had struck down Section 303 of the Indian Penal Code (IPC). It provided capital punishment for murder by a person serving a life term in another case. 
  • In Mithu v. State of Punjab, it held that the punishment was not based on rational principle as no judicial discretion was available to a life convict.
• In 2018 (Navtej Singh Johar v. Union of India), the Court read down Section 377 of the IPC criminalising “unnatural sex” as being unconstitutional. 
• Similarly, in Joseph Shine v. Union of India (2018), the Court held adultery as defined under Section 497 of the IPC as being manifestly arbitrary, discriminatory and violative of the dignity of a woman and therefore, unconstitutional.

Steps to improve the situation:

• The supervisory police officers at the sub-divisional level must ensure that such sections, if invoked, are removed at the earliest. The Superintendents of Police must fix responsibility on the erring officer and take corrective action. 
  • If the SHOs and others don’t mend their ways despite reprimands, their annual confidential reports could be dented with adverse entries.
  • Action can also be initiated under the new Section 166A of the IPC, which provides punishment for up to two years for disobeying directions under the law.
• A prudent focus should be placed on educating police officers of all ranks about unconstitutional provisions in basic training institutes.
• There could be a mention in brackets near the provision that the provision has been struck down, so that FIRs are not registered under those sections. 
• Unconstitutional sections of the IPC can be disabled in the Crime and Criminal Tracking Network and Systems (CCTNS).
  • Most States register FIRs in the CCTNS either on a real-time basis or in offline mode and synchronise this data with the State Data Centre as soon as connectivity is restored.

Chhattisgarh has disabled these Sections in the system; a similar thing could be done by other states as well.