S. 66A: THE LONG ARM OF A DEFUNCT LAW

It was a moment of celebration for advocates of free speech when the Supreme Court, on March 24, 2015, struck down Section 66A of the Information Technology (IT) Act, 2000. The provision, first tabled in the Lok Sabha in December 2006 to deal with cyber crimes against women, was written into the statute in December 2008 soon after the terror attacks in Mumbai (November 26, 2008). This was during a session of Parliament that prioritised other laws—such as the National Investigation Agency Act and Unlawful Activities Prevention (Amendment) Act—linked to an apparent aim to investigate and prosecute offences affecting India’s security.

At the time of its adoption in 2008, the then UPA government pitched even the IT amendment as part of this new scaffolding of national security laws. Section 66A gave the police sweeping powers to jail individuals for posting online anything considered “grossly offensive/ menacing” or sending communication that was “false [in order] to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”.

The provision was challenged in the SC in 2012 by Shreya Singhal, a law student, following the arrest of two girls from near Mumbai. They had criticised on Facebook the shutdown in Mumbai for Shiv Sena patriarch Bal Thackeray’s funeral on November 18, 2012.

While ruling Section 66A unconstitutional, the SC said: “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.” Cut to March 2021. Since the provision was declared unconstitutional, over 1,300 cases have been registered under Section 66A; 745 cases are pending before district courts in 11 states. This is despite the SC directing in February 2019 that copies of its Section 66A verdict be provided to all district courts, chief secretaries and the police. The cases registered since Section 66A was struck down is nearly double those filed in the seven years of its valid existence—1,307 cases between 2015 and 2020 as against 681 between 2008 and 2015. As recently as May 5 this year, Salim Hussain, a 22-year-old man from Assam’s Dhubri, was arrested over a Facebook post and charged under Section 66A. “We have now dropped Section 66A from all cases and requested the courts to do the same in cases pending trial,” says Bhaskar Jyoti Mahanta, DGP, Assam. “So practically, there is no case under Section 66A in Assam.” The misuse of Section 66A was brought to the SC’s notice by the People’s Union for Civil Liberties (PUCL), a rights advocacy group. On July 5, attorney general of India K.K. Venugopal offered a flimsy reason for the continuing misuse of the law. “If your lordships see the IT Act book, there is only a small asterisk and a footnote that says ‘deleted by order of Supreme court’. No one reads the footnote,” he said. A provision of law, even if declared unconstitutional, is not deleted from the statute books till Parliament passes an enabling amendment. Section 66A of the IT Act still finds mention in India Code, the official source for the text of central statutes. While the apex court gave the Centre two weeks to respond to the PUCL plea on Section 66A, independent observers say there is more to its continuing use than systemic lapse. “Some police officials like the flexibility offered by the vague wording and scope of this legal provision. They employ it for any type of online crime,” says Apar Gupta, executive director of the New Delhi-based Internet Freedom Foundation (IFF). In fact, PUCL’s petition was based on data compiled by an IFF tracker on cases registered under Section 66A.