BENGALURU, Karnataka—Police departments across the country continue to arrest and detain citizens under the draconian provisions of Section 66A of the Information Technology Act 2000 despite the section being struck down by the Supreme Court in 2015, an analysis of news reports and data gathered by researchers shows.
Until it was read down, Section 66A, made it an an offense to send "any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages."
Yet the arrests continue.
The latest case is from Guntur in Andhra Pradesh, where a man was arrested by the police for impersonating a woman on a dating app called Locanto, and asking people for money. After being scammed on Locanto himself, the accused, Veeramreddy Suman Reddy (29) had decided to use the same app and methods to meet people and ask for money, and allegedly cheated 507 people of Rs. 21.58 lakh.While Reddy was booked under Section 420 (cheating), the police also registered a case under Section 66A of the IT Act (misleading people through electronic communication).
While senior policemen have tried to explain away the arrests as a consequence of a lack of training, the continued detentions illustrate how citizens are being deprived of their freedom without any legal mandate. The patently illegal use of Section 66A of the Act is not dissimilar from the current moment in which banks and private companies continue to demand Aadhaar numbers from citizens, despite being expressly forbidden from doing so by the Supreme Court last month.
"See, the law doesn't change just because the Supreme Court says something," said Praveen Kumar Sinha, IGP and commissioner of police, Jalandhar, a former instructor at SVP National Police Academy, Hyderabad. "The government has to send a notification, and then there will be a module at the academy," he added. Notifications are supposed to be circulated to all police departments. "There is a website also, but digital is not so big in India," he said.
Lawyers and rights activists disagree.
"Making sure that our guardians of law know their law is absolutely basic," said Supreme Court lawyer Karuna Nundy. "Whether it is training or notifying every police officer, we need action on it immediately."
"Section 66A has a life after judicial death. Despite the Shreya Singhal decision holding it unconstitutional, earlier prosecutions continue and fresh ones are launched," wrote Apar Gupta, executive director of the Internet Freedom Foundation. "Even without Section 66A there exist enough provisions under the Indian Penal Code and the Information Technology Act to prosecute many forms of online abuse and harassment."
More arrests after 66A struck down
In 2016, less than a year after it was scrapped, the Hindustan Times reported that more than 3,000 people were arrested under the Section in 2015. In fact, there were 3,137 arrests under Section 66A in 2015 alone compared to 2,423 in 2014. This is despite the section being read down in March 2015— revealing there were more arrests when the act was not in force, than when it was.
Last year in March, a 22-year-old was arrested under Section 66A for an 'offensive' Facebook post. Rahat Khan had posted a photograph of the UP chief minister, with the caption "Yogi hai, ya bhogi hai". A complaint was raised by the Hindu Yuva Vahini, an outfit founded by Adityanath. The complainant, Naveen Sharma, said Adityanath was a respected figure, and an "idol to many", so the Facebook post could hurt the feelings of many people.
Even judges don't seem to know that the section has been read down.
In April last year, a local court in Telangana sentenced a man by invoking Section 66A, ignoring the Supreme Court's order. The case involved the harassment of a minor girl, and sections 67, 67B, of the IT Act, and section 509 of the IPC, which deal with obscenity and insulting the modesty of a woman, were all included in the charges, but the judgement instead invoked Section 66A.
And things haven't changed since then.
Aside from the case in AP last month, in August this year, a lawyer-activist in Gujarat was also arrested under Section 66A according to reports. Police booked Shamshad Pathan, the activist and lawyer, under the sections 153 (1) of the Indian Penal Code (IPC) for promoting enmity between groups on the basis of religion and acts prejudicial to the maintenance of harmony, and 186 for obstructing a public servant in the discharge of his duty, as well as Section 66A.
The police officer, PI VG Rathod, said Pathan was booked for trying to incite communal tensions by spreading a message about a false rape case. When the Times of India pointed out that Section 66A has been scrapped, the police officer first said there was no such judgement, and then added that the court must have said that "in one particular case only".
He added that "Pathan was aptly booked under Section 66A of the Act as he circulated messages through a cellphone."
Training of officers remains a small part of the police expenditure. Radhika Jha, a research executive at Common Cause India, who worked on a report called Status of Policing in India 2018, told HuffPost India that training accounted for 1.03% of total police expenditure in India in 2016 according to Bureau of Police Research & Development (BPR&D).
Across India, only 5.5% of all police personnel received in-service training, down from the 2012-2016 average of just 6.5%.
This is notable because it shows the wide gap between the decisions of the Supreme Court, and the execution of laws. In fact, when the Supreme Court decriminalized homosexuality in India, the Court also asked that this decision be widely publicized, and for the police to be sensitised to its implications.
However, there's no clear indication of how this will be done.
Section 67 is now being abused as well
Apart from police officers who don't seem to know or care that Section 66A is no longer in force, Section 67 of the IT Act has also come to be abused in the same way. The section deals with the publication and transmission of obscene material, and it has been used to crack down on free speech as well.
The Act first mentions material that is lascivious or appeals to prurient interest, but the third part of the section states, "if its effect is such as to tend to deprave and corrupt persons". This has, Duggal said, a massive possibility to be interpreted in a wide variety of circumstances, which can open it up to misuse, he warned.
For instance, two men were charged for sharing a morphed photo of RSS Chief Mohan Bhagwat, and an activist from Bengaluru was booked for posting an "obscene" photo of UP CM Adityanath. A teen was arrested for making comments about PM Modi in a private Facebook conversation.
"Section 67 is now invariably being used to fill up the vacuum created by the striking down of Section 66(A)," explained Pavan Duggal, a cyber-law expert, in an interview.
"The section has three ingredients and if any one of them is fulfilled, it becomes an offence."