Section 66A: The Zombie on a Hunt
This article is the third in the series where in the past we have talked about the learnings from the Zombie Tracker project and our data driven approach to deal with zombies like section 66A of the IT Act. In this article, we discuss the timeline and status of section 66A of the IT Act based on our observations and data gathered through the Zombie Tracker platform.
Every year a large number of individuals are arrested under section 66A of IT Act, 2000, a section that has not been in existence for more than 6 years. Yes, you read it right! The zombie of section 66A continues to hunt down individuals and threaten free speech on the internet. In Shreya Singhal v. Union of India, on March 24, 2015, a bench of Justices J. Chelameswar and R.F. Nariman declared Section 66A of the IT Act unconstitutional for being violative of citizens’ right to freedom of speech and expression defined by Article 19(1)(a) and not saved under Article 19(2) of the Indian constitution which talks about reasonable restrictions which may be placed on free speech in the interests of the sovereignty and integrity of the country.
In 2008, with the amendment in the IT Act, “offensive speech” on the internet was criminalised under section 66A, and it came into force in 2009. Despite being denied a position on the statute book in 2015, Section 66-A has continuously been in use from the police station through trial courts and all the way to the High Courts.¹ It is concerning because it gave police the ability to make arrests without warrant based on what they deemed “offensive” or “menacing” for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will. If convicted, it stated that conveying messages via computer or any other communication device, such as a mobile phone or a tablet, may result in up to three years of imprisonment.
Even after the section was struck down by the Supreme Court, a total of 1306 cases in 11 states (Assam, Andhra Pradesh, Delhi, Jharkhand, Karnataka, Maharashtra, Rajasthan, Tamil Nadu, Telangana, Uttar Pradesh and West Bengal)² alone were filed under section 66A between March 25, 2015³ and February 15, 2020 and a total of 745 pending cases stood in front of the court as on March 10, 2021. Check the tracker here. The total numbers all across the country are going to be much higher in all likelihood. Interestingly, a total of 682 cases were registered in these 11 states under the section between October 27, 2009 and March 24, 2015, which is nearly half the number of cases registered post the decriminalization of the section in March, 2015.
In 2019, the Supreme Court of India, issued a fresh direction to be sent to all courts in the country, to senior administrative officers and director generals of police after People’s Union for Civil Liberties (PUCL) in the assistance of Internet Freedom Foundation (IFF) approached the Supreme Court. However, even after the direction, the police kept on registering cases under section 66A and magistrates continued to deny bail. A total of 245 cases were registered between February 15, 2019 and February 15, 2020 in the above mentioned 11 states.
In collaboration with IFF, CivicDataLab launched Zombie Tracker on January 15, 2021. The platform is built to monitor cases filed under Section 66A of the IT Act. The application made by PUCL in April, 2021 against the continued enforcement of section 66A was heard by the Supreme Court. The findings and data from the Zombie Tracker was referred to in the application, and it further brought specific cases to the notice of the Supreme Court.
On July 5, 2021, the Supreme Court issued fresh notice to the Centre asking for a response to the continued criminalization under section 66A all across the country. In response, the Ministry of Home Affairs (MHA) on July 14, 2021 issued a notification directing all States and Union Territories to sensitise the law enforcement agencies to ensure strict compliance with Shreya Singhal v. Union of India and withdraw all cases under Section 66A of the IT Act.
This is indeed a huge milestone for everyone who believes in the freedom of speech on the internet. However, it is just the beginning, and it will turn into a victory only when no new cases are registered and the existing charges under section 66A are immediately dropped complying to the MHA order. In our next article, we would discuss the scope of a data driven approach to monitor the recent MHA notification and the roadmap to scale the tracking to other states and union territories.
Endnotes
[1] Sekhri, A., & Gupta, A. (2018). Section 66A and Other Legal Zombies.
[2] Currently, we have only considered cases that were registered between 27/10/2009 and 15/02/2020 in these states. We’re working to add more states and to keep the tracker updated with status of pending cases in the selected states. Please read more on the data collection methodology here.
[3] The day after the Supreme Court held the section unconstitutional and struck it down.
