‘Po­lice Us­ing Lapsed Law to Curb e-Speech’

Sec­tion 66A, struck down by SC in 2015, still finds a ghostly af­ter­life in po­lice sta­tions and courts, says IFF

The Economic Times - - Front Page - Nilesh.Christo­pher@ ties­group.com

Bengaluru: The clause against on­line free speech that was struck down by the Supreme Court as un­con­sti­tu­tional in 2015 is still be­ing used by the po­lice to curb free­dom of ex­pres­sion and for ar­rest­ing peo­ple, ac­cord­ing to the In­ter­net Free­dom Foun­da­tion (IFF).

Sec­tion 66A of the In­dian IT Act had pe­nalised “of­fen­sive mes­sages” on­line and was used to jail peo­ple crit­i­cis­ing po­lit­i­cal par­ties. The sec­tion was struck down af­ter sev­eral high-pro­file cases sparked an up­roar. The cam­paign group said there were over 45 cases in high courts in the past year and that doesn’t in­clude FIRs filed un­der the sec­tion and pend­ing cases in trial courts.

Mean­while, the gov­ern­ment’s Na­tional Crimes Records Bu­reau (NCRB) has stopped col­lect­ing or pub­lish­ing data re­lated to Sec­tion 66A.

“We felt that this fail­ure of com­mu­ni­ca­tion of a Supreme Court judge­ment even af­ter three years is a ‘sig- nal fail­ure.’ It is ba­si­cally a judge­ment of the Supreme Court not be­ing im­ple­mented be­cause the other arms of the state don’t know bet­ter,” said Apar Gupta, co-au­thor of the re­port and ex­ec­u­tive di­rec­tor of IFF. The court struck down the law in 2015, but it “con­tin­ues a ghostly af­ter- life in po­lice sta­tions and courts across In­dia,” IFF said.

For in­stance, 22-year-old Ra­hat Khan was ar­rested in March 2017 for post­ing a mor­phed pic­ture of the Ut­tar Pradesh chief min­is­ter. In Oc­to­ber 2017, 18-year-old Zakir Ali Tyagi of Muzaf­far­na­gar was ar­rested for post­ing a com­ment on Face­book ques­tion­ing the Ut­tarak­hand High Court’s or­der on the River Ganga be­ing a liv­ing en­tity. Sec­tion 66A was in­voked in both in­stances, IFF said.

“What hap­pens in these cases is that the po­lice starts with ar­rest­ing some­one un­der 66A, dis­cov­ers that it can’t do it and con­verts it into an­other sec­tion (if the case gets me­dia at­ten­tion),” said Gupta.

The re­search was con­ducted with two data­bases—In­dia Kanoon, a le­gal data­base, and Supreme Court cases. The re­searchers found out a list of 45 high court cases be­tween Jan­uary 2018 and Septem­ber 2018 on In­dia Kanoon and 21 be­tween March 2015 and Septem­ber 2018 on Supreme Court Cases On­line. The re­searchers said that they were not able to as­cer­tain the num­ber of ar­rests made be­cause there is no data. “NCRB has stopped ask­ing for data on 66A cases, thereby turn­ing off a data point, whereas the pro­vi­sion has lin­gered on as demon­strated in our re­search,” Gupta said.

The num­ber is likely to be size­able, since there is no data on FIRs or cases pend­ing in trial courts un­der Sec­tion 66A.

The study is rel­e­vant as the gov­ern­ment and the broader so­ci­ety de­bates ways of curb­ing on­line dis­in­for­ma­tion, ha­rass­ment and abuse on so­cial net­works. “It is im­por­tant to learn that a vague crim­i­nal pro­vi­sion that crim­i­nalises on­line speech was not that far in our past and it is still be­ing used to­day as the study shows,” Gupta said.

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