Police Continue To Make Arrests Using ‘Unconstitutional’ Section 66A of IT Act, Struck Down By Supreme Court 3 Years Ago

Mount Abu: On March 20, 2017, the Uttarakhand High Court accorded the status of living human entity to the rivers Ganga and Yamuna. The same day, Zakir Ali Tyagi, an 18-year-old from Muzaffarnagar, Uttar Pradesh posted a comment on Facebook questioning whether "criminal charges would be initiated if someone drowned in the Ganga”.

A week later, then newly elected Uttar Pradesh chief minister Yogi Adityanath made a comment about ridding the state of goonda (rogue) elements. “They have the option of leaving UP or else they would land in places designated for them (jails),” he said.

On March 30, Tyagi noted in a Facebook post that the chief minister had 28 cases pending against him, of which 22 were serious.

[Tyagi did not mention the source of his information. Adityanath’s candidate affidavit for the 2014 Lok Sabha elections listed multiple pending criminal cases under a dozen sections. In 2017, MyNeta.Info listed four cases pending against Adityanath, based on his affidavit submitted for election to the Uttar Pradesh Legislative Council.]

A few days after making those posts, Tyagi was arrested.

Tyagi was booked under Section 66A of the Information Technology Act (IT Act), a statute that criminalised sending offensive messages online. He was additionally booked under Section 420 (cheating) of the Indian Penal Code (IPC), because Tyagi had changed his Facebook profile photograph to that of slain sub-inspector, Akhtar Ali, to pay homage to the officer who was killed in an exchange of fire during a raid to arrest a suspected criminal at Dadri, Noida.

Except that Section 66A had been struck down by the Supreme Court in March 2015, two years before it was used by the police against Tyagi, because the top court found the statute too vague to be applied.

How do you decide what is offensive?

“What may be offensive to one may not be offensive to another,” explained the Supreme Court in the landmark judgement (Shreya Singhal v. Union of India) in 2015 that repealed 66A. “What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another…. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence.”

So, how could Tyagi have been booked under an overruled statute?

Was the use of Section 66A by the police an outcome of ignorance of the law, or was the police knowingly challenging the legitimacy of the Supreme Court ruling that overturned it?

The answer is a bit of both, according to a new paper ‘Section 66A and other legal zombies’ by lawyers Abhinav Sekhri and Apar Gupta.

“There is no system in place to give proper effect to the decisions of the Supreme Court of such significant import,” co-author Gupta, also executive director of the Internet Freedom Foundation, told IndiaSpend.  “There exists a lack of mutual respect between the judiciary and executive, and the power balance skewed in favour of the executive allows it to get away with the abuse of the law.”

Gupta noted that it is important to understand that courts do not strike down laws on the mere possibility of misuse. “Judicial review of substantive penal legislation is a rare event, not because the legislature always comes up with bulletproof choices on what to criminalise and how to do so, but rather because of a convention that courts cannot continually question the legislative choices in that arena. Courts try to maintain a balance of powers between the branches of state — the executive, judiciary and legislature — by abstaining from interfering in or negating law-making. Besides, imagine how challenging law enforcement would become if the validity of the law itself were forever in doubt?”

In the case of Section 66A, the Supreme Court ruled that the law violated Article 14, providing for equality before the law, Article 19, which includes freedom of speech and expression, and Article 21, or right to life and personal liberty, all constitutional Fundamental Rights, said Gupta.

Respecting the position of other branches of the State would assume that when the judiciary does engage in that rare act of review, its decision is scrupulously honoured. Clearly, that hasn’t happened. The struck-down statute Section 66A, and other scrapped sections such as Section 303, IPC continue to be used, according to Sekhri and Gupta.

Gupta told IndiaSpend that this effectively puts the onus of enforcing the apex court’s ruling on existing defendants and those newly booked under the now defunct section.

Edited excerpts from an interview:

Citing the example of Zakir Ali Tyagi, who spent 42 days in jail after being booked under Section 66A of the IT Act and Section 420, IPC, you concluded that due to “considerable mainstream media coverage by national newspapers”, “the likelihood of the police discovering the error of continued used of Section 66A would have become apparent,” and the allegations under Section 66A were converted to Section 66. Once Tyagi was released on bail, the police added the offence of sedition. Is this switching of sections reflective of ignorance of the law?

Dropping an alphabet did not impart greater legality to Zakir Ali Tyagi’s case, since Section 66 and Section 66A are vastly different. The former deals with hacking and monetary losses; the latter deals with offences of speech, and can be contracted and expanded like an accordion. What often happens is that the police first arrest someone under 66A, then, if the case gets media attention, they find out about the invalidity of the statute and look for another section to justify the arrest. Incidentally, Tyagi’s case is still ongoing.

Since the National Crimes Record Bureau (NCRB) stopped recording Section 66A cases in 2016, we found an increased incidence of the use of Section 66 (computer-related offences) and Section 67 (transmitting obscene material in electronic form), despite the legal objective of sections 66 and 67 being distinct from Section 66A. It is possible that these provisions are serving as mere proxies for a continued reliance on Section 66A, suggesting that Shreya Singhal affected only form and not substance. A research report released in November 2017 by the Mumbai-based not-for-profit Point of View inquires if Section 67 is being used as a substitute for Section 66A.

Equally disturbing was our discovery that this issue of ignorance of the law, and hence, the application of unconstitutional penal laws, long preceded Shreya Singhal and Section 66A. In 1983, the Supreme Court had struck down Section 303, IPC [which mandated a death sentence for murder if committed by a person convicted for life imprisonment], in Mithu v. State of Punjab. In 2012, almost two decades later, the Rajasthan High Court intervened to save a person from being hanged for being convicted under that offence by a Sessions Judge.

You concluded that Section 66A continues to be used because the pertinent authorities simply do not know that it has been struck down, because no method exists for getting word of Supreme Court decisions to other stakeholders, such as the lowest rungs of the criminal justice system. What solution do you propose for this situation?

Allow me to digress to say that we concluded that Section 66A continues to be used because the pertinent authorities do not know that it has been struck down, simply because we could not assume that the police, prosecutors and courts are actively committing contempt by refusing to stop cases under Section 66A, or that they see the decision as not requiring them to act to offer relief to defendants of pending cases. That said, we found it fairly plausible that authorities don’t know about the decision on Section 66A, because when a law is declared unconstitutional, it is not automatically deleted from the statute books. Statutes can only be changed via an amendment, and if parliament does not pass an enabling amendment to give effect to the Supreme Court decision, then the unconstitutional provision will remain in the text. So, if one accesses India Code—the official source for the text of central statutes—Section 66A still exists. Commercial publishers such as Universal, LexisNexis and Commercial that are required to faithfully reproduce the official text of statutes also carry unconstitutional provisions, often with a footnote citing the Supreme Court decision.

How else could the lower courts and police force get to know that Section 66A had been struck down? Through the government’s official gazette, which carries updates on new legislation or rules? It doesn’t carry details of recent judicial decisions of constitutional import. Through government advisories or notifications? While an advisory was issued to chief secretaries and director generals during the litigation asking them to use Section 66A with restraint and prior approval of their administrative superiors, no advisory or notification was addressed to the same set of persons informing them about the decision itself.

High Court Rules (we studied the Delhi High Court provisions) don’t allow for decisions of the Supreme Court to be conveyed to the lower courts under its jurisdiction. Similarly, there is no rule mandating district judges to issue circulars for bringing new Supreme Court decisions to the notice of other officers. To get information about important decisions, members of the subordinate judiciary are expected to refer to yearly digests published by the judiciary or similar digests published by commercial houses.

What impact should scrapping Section 66A have had on the people of India and its judicial system? How does that continued application of the unconstitutional statute impact persons booked under Section 66A?

When an important decision like Shreya Singhal was passed, you would have imagined that prosecuting agencies and magistrates across the country would proactively give effect to the ruling, by examining pending cases and withdrawing those where the defendant was booked solely under Section 66A. In doing so, they would effectively reduce the burden on the criminal justice system, which we all know is besieged with the lack of policing resources and pending cases.

As we found, this did not happen. Far from it. The police continued to book people under the scrapped law (and they continue to do so; this recent case happened in Gurugram and this case in Guwahati), in doing so placing the burden of enforcing legal change on newly booked and existing defendants. What we mean by this is most defendants depend on their lawyers to navigate the legal system. So, if the lawyer is aware of the rollback of Section 66A and capable of explaining the illegality to the court, good for the defendant. If not, the defendant would needlessly suffer. We found proof of this, in the fact that Shreya Singhal was used to quash only some of the 66A cases pending before the same presiding officer in the Kerala High Court. Where the lawyer did not claim the invalidity, the courts simply went on with the case as if Section 66A was valid. In India, how many defendants have the financial wherewithal to engage the best lawyers who offer quality counsel? Those who lack these means are left hopelessly beyond the Constitution. This is their justice.

What data formed the basis of your study? To what extent is that data indicative of the total section 66A cases being registered in the country?

We searched two online databases for Section 66A cases—IndianKanoon, a popular public access platform, and Supreme Court Cases Online, a subscription-based platform. Between January and September 2018, IndianKanoon listed 45 cases, while Supreme Court Cases Online listed 21 cases from March 2015 till September 2018.

These were by no means exhaustive lists. These databases crawl the internet and index information. We know that they primarily index high court cases and collect data from the few district courts that are digitised. A main source of data—crimes registered through First Information Reports (FIR) in police stations—remains wholly outside the scope of these databases. Also, we are not clear which cases they omit since their algorithms and documentation are not made public. Incidentally, Tyagi’s case was not listed.

We also referred to cyber crimes reported by the NCRB, which collates data sourced from police stations. NCRB data for 2015 and 2016 showed that widespread arrests continued despite Shreya Singhal. However, the NCRB issued a “corrigenda” in 2016 clarifying that those numbers were incorrect due to an error in the internal data processing system, and also said that it will not publish data on Section 66A in subsequent reports.

Because of these data limitations, we limited our study to examining the general continued use of Section 66A in the criminal process. In many instances this includes FIRs filed after the Shreya Singhal judgment and trials that are proceeding as on date. Having read each order in our data set, we can confidently assert the usefulness of our data set as a tool for analysis and evidence of the continued misuse of a scrapped statute. What could be more revealing than this comment of a police inspector in Ahmedabad on being asked why he booked a lawyer-activist working for minority rights under the scrapped Section 66A in August 2018? The inspector first said that the top court did not give any such judgement, then later said, “The Supreme Court must have said that in one particular case only and the section remains in the Act. Pathan was aptly booked under Section 66A of the act as he circulated messages through a cellphone.”

(Bahri is a freelance writer and editor based in Mount Abu, Rajasthan.)

We welcome feedback. Please write to respond@indiaspend.org. We reserve the right to edit responses for language and grammar.

Mount Abu: On March 20, 2017, the Uttarakhand High Court accorded the status of living human entity to the rivers Ganga and Yamuna. The same day, Zakir Ali Tyagi, an 18-year-old from Muzaffarnagar, Uttar Pradesh posted a comment on Facebook questioning whether "criminal charges would be initiated if someone drowned in the Ganga”.

A week later, then newly elected Uttar Pradesh chief minister Yogi Adityanath made a comment about ridding the state of goonda (rogue) elements. “They have the option of leaving UP or else they would land in places designated for them (jails),” he said.

On March 30, Tyagi noted in a Facebook post that the chief minister had 28 cases pending against him, of which 22 were serious.

[Tyagi did not mention the source of his information. Adityanath’s candidate affidavit for the 2014 Lok Sabha elections listed multiple pending criminal cases under a dozen sections. In 2017, MyNeta.Info listed four cases pending against Adityanath, based on his affidavit submitted for election to the Uttar Pradesh Legislative Council.]

A few days after making those posts, Tyagi was arrested.

Tyagi was booked under Section 66A of the Information Technology Act (IT Act), a statute that criminalised sending offensive messages online. He was additionally booked under Section 420 (cheating) of the Indian Penal Code (IPC), because Tyagi had changed his Facebook profile photograph to that of slain sub-inspector, Akhtar Ali, to pay homage to the officer who was killed in an exchange of fire during a raid to arrest a suspected criminal at Dadri, Noida.

Except that Section 66A had been struck down by the Supreme Court in March 2015, two years before it was used by the police against Tyagi, because the top court found the statute too vague to be applied.

How do you decide what is offensive?

“What may be offensive to one may not be offensive to another,” explained the Supreme Court in the landmark judgement (Shreya Singhal v. Union of India) in 2015 that repealed 66A. “What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another…. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence.”

So, how could Tyagi have been booked under an overruled statute?

Was the use of Section 66A by the police an outcome of ignorance of the law, or was the police knowingly challenging the legitimacy of the Supreme Court ruling that overturned it?

The answer is a bit of both, according to a new paper ‘Section 66A and other legal zombies’ by lawyers Abhinav Sekhri and Apar Gupta.

“There is no system in place to give proper effect to the decisions of the Supreme Court of such significant import,” co-author Gupta, also executive director of the Internet Freedom Foundation, told IndiaSpend.  “There exists a lack of mutual respect between the judiciary and executive, and the power balance skewed in favour of the executive allows it to get away with the abuse of the law.”

Gupta noted that it is important to understand that courts do not strike down laws on the mere possibility of misuse. “Judicial review of substantive penal legislation is a rare event, not because the legislature always comes up with bulletproof choices on what to criminalise and how to do so, but rather because of a convention that courts cannot continually question the legislative choices in that arena. Courts try to maintain a balance of powers between the branches of state — the executive, judiciary and legislature — by abstaining from interfering in or negating law-making. Besides, imagine how challenging law enforcement would become if the validity of the law itself were forever in doubt?”

In the case of Section 66A, the Supreme Court ruled that the law violated Article 14, providing for equality before the law, Article 19, which includes freedom of speech and expression, and Article 21, or right to life and personal liberty, all constitutional Fundamental Rights, said Gupta.

Respecting the position of other branches of the State would assume that when the judiciary does engage in that rare act of review, its decision is scrupulously honoured. Clearly, that hasn’t happened. The struck-down statute Section 66A, and other scrapped sections such as Section 303, IPC continue to be used, according to Sekhri and Gupta.

Gupta told IndiaSpend that this effectively puts the onus of enforcing the apex court’s ruling on existing defendants and those newly booked under the now defunct section.

Edited excerpts from an interview:

Citing the example of Zakir Ali Tyagi, who spent 42 days in jail after being booked under Section 66A of the IT Act and Section 420, IPC, you concluded that due to “considerable mainstream media coverage by national newspapers”, “the likelihood of the police discovering the error of continued used of Section 66A would have become apparent,” and the allegations under Section 66A were converted to Section 66. Once Tyagi was released on bail, the police added the offence of sedition. Is this switching of sections reflective of ignorance of the law?

Dropping an alphabet did not impart greater legality to Zakir Ali Tyagi’s case, since Section 66 and Section 66A are vastly different. The former deals with hacking and monetary losses; the latter deals with offences of speech, and can be contracted and expanded like an accordion. What often happens is that the police first arrest someone under 66A, then, if the case gets media attention, they find out about the invalidity of the statute and look for another section to justify the arrest. Incidentally, Tyagi’s case is still ongoing.

Since the National Crimes Record Bureau (NCRB) stopped recording Section 66A cases in 2016, we found an increased incidence of the use of Section 66 (computer-related offences) and Section 67 (transmitting obscene material in electronic form), despite the legal objective of sections 66 and 67 being distinct from Section 66A. It is possible that these provisions are serving as mere proxies for a continued reliance on Section 66A, suggesting that Shreya Singhal affected only form and not substance. A research report released in November 2017 by the Mumbai-based not-for-profit Point of View inquires if Section 67 is being used as a substitute for Section 66A.

Equally disturbing was our discovery that this issue of ignorance of the law, and hence, the application of unconstitutional penal laws, long preceded Shreya Singhal and Section 66A. In 1983, the Supreme Court had struck down Section 303, IPC [which mandated a death sentence for murder if committed by a person convicted for life imprisonment], in Mithu v. State of Punjab. In 2012, almost two decades later, the Rajasthan High Court intervened to save a person from being hanged for being convicted under that offence by a Sessions Judge.

You concluded that Section 66A continues to be used because the pertinent authorities simply do not know that it has been struck down, because no method exists for getting word of Supreme Court decisions to other stakeholders, such as the lowest rungs of the criminal justice system. What solution do you propose for this situation?

Allow me to digress to say that we concluded that Section 66A continues to be used because the pertinent authorities do not know that it has been struck down, simply because we could not assume that the police, prosecutors and courts are actively committing contempt by refusing to stop cases under Section 66A, or that they see the decision as not requiring them to act to offer relief to defendants of pending cases. That said, we found it fairly plausible that authorities don’t know about the decision on Section 66A, because when a law is declared unconstitutional, it is not automatically deleted from the statute books. Statutes can only be changed via an amendment, and if parliament does not pass an enabling amendment to give effect to the Supreme Court decision, then the unconstitutional provision will remain in the text. So, if one accesses India Code—the official source for the text of central statutes—Section 66A still exists. Commercial publishers such as Universal, LexisNexis and Commercial that are required to faithfully reproduce the official text of statutes also carry unconstitutional provisions, often with a footnote citing the Supreme Court decision.

How else could the lower courts and police force get to know that Section 66A had been struck down? Through the government’s official gazette, which carries updates on new legislation or rules? It doesn’t carry details of recent judicial decisions of constitutional import. Through government advisories or notifications? While an advisory was issued to chief secretaries and director generals during the litigation asking them to use Section 66A with restraint and prior approval of their administrative superiors, no advisory or notification was addressed to the same set of persons informing them about the decision itself.

High Court Rules (we studied the Delhi High Court provisions) don’t allow for decisions of the Supreme Court to be conveyed to the lower courts under its jurisdiction. Similarly, there is no rule mandating district judges to issue circulars for bringing new Supreme Court decisions to the notice of other officers. To get information about important decisions, members of the subordinate judiciary are expected to refer to yearly digests published by the judiciary or similar digests published by commercial houses.

What impact should scrapping Section 66A have had on the people of India and its judicial system? How does that continued application of the unconstitutional statute impact persons booked under Section 66A?

When an important decision like Shreya Singhal was passed, you would have imagined that prosecuting agencies and magistrates across the country would proactively give effect to the ruling, by examining pending cases and withdrawing those where the defendant was booked solely under Section 66A. In doing so, they would effectively reduce the burden on the criminal justice system, which we all know is besieged with the lack of policing resources and pending cases.

As we found, this did not happen. Far from it. The police continued to book people under the scrapped law (and they continue to do so; this recent case happened in Gurugram and this case in Guwahati), in doing so placing the burden of enforcing legal change on newly booked and existing defendants. What we mean by this is most defendants depend on their lawyers to navigate the legal system. So, if the lawyer is aware of the rollback of Section 66A and capable of explaining the illegality to the court, good for the defendant. If not, the defendant would needlessly suffer. We found proof of this, in the fact that Shreya Singhal was used to quash only some of the 66A cases pending before the same presiding officer in the Kerala High Court. Where the lawyer did not claim the invalidity, the courts simply went on with the case as if Section 66A was valid. In India, how many defendants have the financial wherewithal to engage the best lawyers who offer quality counsel? Those who lack these means are left hopelessly beyond the Constitution. This is their justice.

What data formed the basis of your study? To what extent is that data indicative of the total section 66A cases being registered in the country?

We searched two online databases for Section 66A cases—IndianKanoon, a popular public access platform, and Supreme Court Cases Online, a subscription-based platform. Between January and September 2018, IndianKanoon listed 45 cases, while Supreme Court Cases Online listed 21 cases from March 2015 till September 2018.

These were by no means exhaustive lists. These databases crawl the internet and index information. We know that they primarily index high court cases and collect data from the few district courts that are digitised. A main source of data—crimes registered through First Information Reports (FIR) in police stations—remains wholly outside the scope of these databases. Also, we are not clear which cases they omit since their algorithms and documentation are not made public. Incidentally, Tyagi’s case was not listed.

We also referred to cyber crimes reported by the NCRB, which collates data sourced from police stations. NCRB data for 2015 and 2016 showed that widespread arrests continued despite Shreya Singhal. However, the NCRB issued a “corrigenda” in 2016 clarifying that those numbers were incorrect due to an error in the internal data processing system, and also said that it will not publish data on Section 66A in subsequent reports.

Because of these data limitations, we limited our study to examining the general continued use of Section 66A in the criminal process. In many instances this includes FIRs filed after the Shreya Singhal judgment and trials that are proceeding as on date. Having read each order in our data set, we can confidently assert the usefulness of our data set as a tool for analysis and evidence of the continued misuse of a scrapped statute. What could be more revealing than this comment of a police inspector in Ahmedabad on being asked why he booked a lawyer-activist working for minority rights under the scrapped Section 66A in August 2018? The inspector first said that the top court did not give any such judgement, then later said, “The Supreme Court must have said that in one particular case only and the section remains in the Act. Pathan was aptly booked under Section 66A of the act as he circulated messages through a cellphone.”

(Bahri is a freelance writer and editor based in Mount Abu, Rajasthan.)

We welcome feedback. Please write to respond@indiaspend.org. We reserve the right to edit responses for language and grammar.