‘Dissenters’ are still being charged under Section 66A of the IT Act, which was struck down five years ago in Shreya Singhal vs Union of India
Section 66A of the Information Technology (IT Act) of 2000 is a dead law. But a law scrapped from the books doesn’t quite mean the same on the streets, it seems. People are still being charged under that provision and no one is owning up to it.
A week after getting bail, Shubham Singh was looking at the newspaper articles about his arrest in March 2020.
Beyond the headline – which read, “25-year-old professor arrested for a post against PM Modi” – he saw some of the news clips mention that he was booked under Section 66A of the IT Act in addition to other charges, even though the Supreme Court struck it down in 2015.
When I spoke with him, Singh asked to be identified by a pseudonym to protect his identity. He is still under trial.
“When my lawyer confirmed it, I was filled with so many different emotions. Is it even possible? I was confused, frustrated…”
A teacher with no criminal record, Singh was arrested on Feb. 28 and booked under Section 153 A – vilification of religion, race, etc. of any particular group, Section 295 A – acts intended to outrage religious feelings, and, of course, Section 66 A of the IT Act. He was sent to four days of judicial custody by a district court.
Six months after his arrest, the police still has not produced a chargesheet in the court. But neither have they quashed the First Information Report (FIR) against him.
And, well, this is not the story of one curious case.
Shiv Kumar, a journalist with a vernacular newspaper in Uttar Pradesh state had the same experience. He, too, was booked under Section 66A in March.
In fact, in April 2020, several police complaints were filed against Republic TV’s controversial anchor Arnab Goswami under the same section with the allegation that he tried to defame Indian National Congress president Sonia Gandhi.
It’s been five years since the landmark judgment of Shreya Singhal vs Union of India. In 2015, a division bench of the Supreme Court struck down Section 66A of the IT Act. The restriction that this provision imposed on free speech on the internet was declared null and void.
The judgment said it violated the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. Even the argument of “reasonable restriction” on the freedom of speech under Article 19(2) did not save it. And it was good riddance too. But the arrests have not stopped.
A year after Section 66A was scrapped, an initial report by the National Crime Records Bureau (NCRB), released in 2016, stated that 3,137 people were booked under the section in 2015. This was an increase of 22.7 percent from 2014 when 2,423 people were arrested. This means, in 2015, an average eight people were thrown in jail and booked under a dead section every day.
When this data was made public, there was a huge outcry and the NCRB was forced to review its figures. This was coupled with Rajya Sabha MP Rajeev Chandrasekhar writing to Prime Minister Narendra Modi asking for this abuse of Section 66A to end.
Days later, the NCRB issued a correction on its website, which is rare. It said that the error was due to a glitch and that the arrest numbers attributed to 66A also included those booked under other sections. Even today, those stats appear with a footnote that reads “It includes the cases under Section 66 of IT Act also.”
After this fiasco, the NCRB finally stopped collecting data for arrests under Section 66A altogether. This came out in 2018 when S.S. Ahluwalia, the Minister of State for Electronics and Information Technology, was answering a question related to the issue in the parliament.
Apar Gupta, Executive Director of the Internet Freedom Foundation, believes it is more important now for the NCRB to gather this data, as it can help establish that the Shreya Singhal judgment is not implemented in spirit.
Section 66A stated that “any person who sends a message that is grossly offensive or has a menacing character or any information which (s)he knows to be false for the purpose of causing annoyance, inconvenience, danger, obstruction, insult using any means of a computer resource shall be punishable with imprisonment for a term which may extend to three years and with fine.”
The section was introduced as an amendment to the IT Act in 2008. A piece titled “Deaf, dumb and dangerous,” published by The Telegraph explained how the Parliament of India passed it within 21 minutes without any debate. Section 66A was labelled draconian and as a tool for governments to send political dissenters to jail, according to a blogpost by the IFF.
And it is hard to argue otherwise.
In 2012, Mumbai Police had arrested two girls, Shaheen Dhada and Renu. Dhada was arrested for posting a so-called offensive and objectionable Facebook post about the shutting down of Mumbai in the wake of firebrand Shiv Sena leader Bal Thackeray’s death. And Renu had committed the “sin” of “liking” the post.
They were both booked under Section 66A.
The arrests sparked widespread criticism and led a Delhi University law student Shreya Singhal to file a petition with the Supreme Court in 2013, challenging the constitutional validity of Section 66A.
When I spoke to Shreya Singhal, she said that she was aware of the fact that the revoked provision was still in use. “I filed this petition with the intention to safeguard the online free speech. The medium should not be a deterrent,” she said.
Last January, the People’s Union for Civil Liberties (PUCL) approached the Supreme Court. PUCL is a human rights body formed in 1976 by socialist leader Jayaprakash Narayan and also one of the original petitioners in the Shreya Singhal case.
The Supreme Court responded by saying that it was shocking to see people still being booked under an “extinct” and “draconian” provision.
“The Supreme Court later gave a direction to all chief secretaries of States and Union Territories and Directors-General of Police to circulate and inform police stations and officials about the March 2015 verdict. It also mandated the state high courts to bring the judgment to the notice of district courts within their jurisdiction to prevent failures of justice,” informed advocate Arjun Sheoran, PUCL’s national organising secretary.
No Change Whatsoever
The verdict was circulated everywhere but that hardly changed anything, it seems.
Rohit Singh from Deoband area in Uttar Pradesh state’s Saharanpur district was booked under Section 66A and Essential Commodities Act in December 2019. On June 26, he filed a petition in Allahabad High Court to quash the complaint against him. The court put a stay on his arrest, but dismissed his petition.
However, in a case filed by one Mohan Singh, who was also booked under Section 66A and some other sections, the Allahabad High Court pulled up the police officials.
Singh had approached the High Court asking for the charges to be declared ultra vires, or beyond the legal authority of the government. On July 31, the court directed the senior superintendent of police of Mathura to explain how the complaint was filed under a revoked law.
How is This Even Happening?
A paper Advocate Abhinav Sekhri co-authored with Gupta of the IFF, titled “Section 66A and Other Legal Zombies,” offers three possible explanations to why Section 66A continues to be used.
One, that the police, prosecutors and courts are actively committing contempt of court. Two, they see the Supreme Court’s decision as not affecting pending cases, or at any rate not forcing them to do anything. Or, three, the authorities simply do not know that Section 66A has been struck down.
In January, the Karnataka High Court imposed a fine of 10,000 rupees and sought an unconditional apology from two police officers in Bengaluru city for pursuing a case under Section 66A.
In their submission to the court, the Bengaluru policemen said that they were “unaware” of the scrapping of Section 66A. M. Somanna, the 58-year-old policeman, said that he registered the complaint due to “inadvertence” and his 40-year-old colleague, Ravi Patil, said that he too had “inadvertently” continued the investigation.
“By booking a person under defunct Section 66A, public money is being wasted,” said Gupta. “A police official is investigating a crime under a section that an accused cannot be convicted for. In fact, it is not just a waste of tax-payers’ money but also the crucial time of both the policemen and the judiciary.”
The Indian judiciary is already overburdened. As of Aug. 15, over 10 million cases were pending with various district courts of India and 4.5 million cases were pending with various high courts.
This data, compiled by the National Judicial Data Grid, does not include cases from the Bombay and Delhi high courts as the data had not yet been shifted to the new Case Information System.
“Even after being declared unconstitutional, Section 66A is not automatically deleted from the statute books,” Gupta pointed out. “Statutes can only be changed via amendment. And so far, such an amendment has not been passed by the parliament.”
While working on their paper in 2018-2019, Sekhri and Gupta found out that the India Code – the official source for the text of central statutes – still mentions Section 66A. However, there is a footnote citing the Supreme Court decision. In 2020, the section still exists on the website. “How many people actually read that footnote,” Gupta asked.
The same statutes are also reproduced by commercial publishers which are widely read by police and judicial officers.
“It can be easily misread by any person who is not aware that this is declared unconstitutional,” Gupta added. “In the official gazette, there is no section to publish the judicial decisions of constitutional import. So there is no official way of informing the officers that this section was struck down.”
That is why, in their petition in 2019, the PUCL and the IFF urged the Supreme Court to ensure that the March 2015 verdict is circulated among police stations and officials as much as possible.
For now, the provision and its abuse are very much alive.
Calling Section 66A a dead text with no living enactment of the law, Gupta said, “Justice requires enforcement.” And enforcement includes making sure that police stop using a law that has been deleted from the books.