Several examples of 66(A) being used despite being struck down
In 2013, Mohd Sakir was booked under section 66(A) of the Information Technology Act, which states that electronically sent offensive messages may be punished with upto three years in jail. Two years later, the Supreme Court struck down the section for being “draconian” but Sakir’s case continued to be heard in the Tis Hazari court in Delhi. He would go on to deposit ₹2,000 against the cancellation of a non-bailable warrant, even as the law he was booked under was deemed unconstitutional.
In Karnataka, an even more interesting case was unfolding. Not only was Dilip Shetty charged under 66(A), he was also acquitted. The final order was issued in February this year, six years after the trial began. “As a result, the accused, though enlarged on bail and ultimately acquitted, underwent a trial for over six years, at a significant personal cost to their liberty and cost to the state in terms of judicial time and resources,” a petition by People’s Union for Civil Liberties (PUCL), a human rights and civil liberties organisation along with digital rights advocacy group Internet Freedom Foundation notes.
For Shekhar Rahul Nikam in Nashik Maharashtra, section 66(A) was invoked for “offensive messages” sent in 2010. The charges were framed in 2020. The case is at the evidence stage.
Sakir’s case is pending before the Tis Hazari court, even though the state appellant submitted that the provision has been struck down. “More shockingly, it is clear from order dated 03.09.2019 that the Ld. APP for the State himself submitted that such provision had been struck down by this Hon’ble Court. However, the Ld. Metropolitan Magistrate nevertheless issued a nonbailable warrant against the accused on the basis that it appeared that the accused was deliberately not appearing before the Court,” the PUCL petition adds. The case was listed for hearing as recently as January 28.
Even six years after it was scrapped by the apex court for being “draconian and unconstitutional”, section 66(A) of the information technology continues to be used by law enforcement agencies to charge people for “offensive messages”, data collated by digital rights advocacy group Internet Freedom Foundation and Civic Data Labs shows.
The most number of cases under it were registered in Maharashtra (381), followed by Jharkhand (291), Uttar Pradesh (245) and Rajasthan (192). A total of 1307 cases have been registered under the section since 2015 , despite it being declared void. The data has been gathered using the online E-Courts portal alone, as no government agency such as the National Crime Records Bureau collects data in this regard, according to IFF. Section 66(A) criminalized messages sent in form of text, audio, video, images or any other electronic record that were considered “grossly offensive” or had a “menacing character”. It was punishable with up to three years imprisonment.
Even though the section was struck down in March 2015, 332 cases were filed the same year. In 2016, 216 cases were registered. This became 290 in 2017, 318 in 2018, 253 in 2019 and 34 until February 2020. The data has been collected for Assam, Andhra Pradesh, Delhi, Jharkhand, Karnataka, Maharashtra, Rajasthan, Tamil Nadu, Telangana, Uttar Pradesh and West Bengal .
A Supreme Court bench comprising of Justice RF Nariman, Justice KM Joseph and Justice BR Gavai on Monday came down heavily on the Centre for allowing cases be filed under the section. Appearing for the union government attorney general KK Venugopal sought to explain why Section 66A is still being used. “On perusal of the IT act, it can be seen that Section 66A features in it but in the footnote, it is written that the section has been scrapped. So, now when a police officer has to register a case, he sees the section and registers the case without going through the footnote,” he explained. The government has been given two weeks to respond.
Tanmay Singh, Associate Litigation Counsel at the Internet Freedom Foundation said that the problem is fairly widespread. “It has been suggested that the section can be deleted entirely, to reinforce (the fact) in the minds of the police and prosecuting authority,” Singh said. “Another way to ensure the section is not used is to reach out to the last authority. It is clear is that is a widespread problem. The data gathering exercise was expensive and time consuming.”
He added that even after the 2015 judgment, the number of cases has soared. “The data gathering exercise was conducted for only 11 states. We have also asked for data.”