‘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
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.