Resurrecting a dead law

News: Recently, Section 66A of the Information Technology Act, 2000 is back in the news. India made a formal submission for criminalising “offensive messages” in the ongoing negotiations at the United Nations for a proposed international treaty on combating cybercrime. The language in the submission is similar to what was used in Section 66A.

About the law

The Supreme Court had declared Section 66A of the IT Act, unconstitutional in 2015 in Shreya Singhal v. Union of India on the ground of having a “chilling effect on free speech”.

If India’s proposal is accepted, would the provision have a direct effect on the Indian legal system?

Theory of monism

In this, international law is automatically incorporated into the domestic legal system of the country. The Parliament is not required to enact an enabling legislation fo giving effect.

Theory of dualist state.

The international law does not become a part of the domestic legal system because the Parliament is required to amend the domestic law to implement the international law.

Case of India

Although, India is a dualist state. But, over the years, the Supreme Court of India has moved away from this traditional dualist approach towards monism. For Example,

The SC of India in Vishakha v. State of Rajasthan (1997), National Legal Services Authority v. Union of India (2014), and K.S. Puttaswamy v. Union of India (2018), followed the international law and judicially incorporated the readings into India’s domestic law.

What will be the Judicial scenarios in the future?

(1) Scenario I: If international treaty combating cybercrime is finalized with a provision similar to Section 66A and the Indian Parliament has not enacted law to give effect.

The Indian courts will give primacy to the domestic law enunciated in Shreya Singhal Case, not the international treaty because the international law would be in conflict with domestic law.

Scenario II: If Parliament enacts legislation or amends existing legislation to implement the international treaty under the Article 253 of the Constitution of India and incorporate a provision similar to Section 66A back on the statute book.

If the constitutionality of the re-introduced version of Section 66A is challenged. The constitutional court will still strike down it down because it will still be violative of the fundamental right to free speech, the ground which was used in the Shreya Singhal Case.

What is the major issue?

The Indian government proposed the inclusion of a provision in an international treaty which was struck down by its own apex court for breaching fundamental rights.

Way Forward

The U.K. and many countries in the European Union have reportedly already contested India’s submission because such proposals seek to violate the freedom of speech.

Source: The post is based on an article “Resurrecting a dead law” published in the “The Hindu” on 21^st June 2022.