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2,000 Arrests In 12 Months, 3,000 In Just 3? How Cops Use 66A Even After SC Scrapped It

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By Abhishek Jha:

The statistics on crime in India in 2015 released on August 30 reveal something curiously strange about Section 66A of the Information Technology Act. Although the section was scrapped by the Supreme Court as unconstitutional in March 2015, the number of arrests in 2015 under the provision has increased disproportionately in comparison to 2014, when 66A was still on the statute book.

The Crime in India Statistics state that 4,154 cases were reported under 66A in 2015, a marginally lower number in comparison to 4,192 cases reported in 2014. The number of arrests on the other hand under 66A went up from 2,423 in 2014 to 3,137 in 2015.

The scrapped section pertains to “punishment for sending offensive messages through communication service, etc”. The section was struck down in March last year by the Supreme Court following a writ petition by law student Shreya Singhal. The court had said that the section was “violative of Article 19(1)(a)” of the constitution, which provides the right to freedom of speech and expression. The judgment was welcomed because the vagueness in this law, it appeared, was being used to curb freedom of speech on the internet.

Interestingly, however, PTI reported in June this year that an Andheri Metropolitan magistrate had issued process against filmmaker Ram Gopal Verma for offence against Section 66(A) of the Information Technology Act. Last year too, soon after the apex court judgment, police in Maharashtra had invoked the section in an FIR. “The police resorting to 66A in some states is because they don’t know that Supreme Court has struck it down and it is still there in the printed copies that have been given to them,” says Apar Gupta, a Delhi based advocate who is a vocal critic of curbs on freedom of speech on the internet.

YKA also called up DCPs of five Delhi police districts after the NCRB data was released. These districts had last year provided data under RTI for cases registered under 66A. The RTI was the basis of a story published last year by a leading English daily post the Shreya Singhal judgment. While three of them were either unavailable or declined to comment, two of them gave answers that would give credence to Gupta’s suggestion.

DCP North, on being asked whether the district had registered any cases under Section 66A of the Information Technology Act after March 2015, said, “I don’t remember as of now. Maybe one or two cases, I think, but it’s not readily available with me”. DCP North-West, on being asked the same question, said, “We have registered a few cases. I cannot give the exact number. But yes, few cases we have registered”. On being told that the Supreme Court had struck down the Section in March last year and that the NCRB statistics seemed incongruous with this fact, he replied, “I have to check under which Section they have been registered. Whether it’s A, B, or C, that I have to check”.

Section 66A makes up for a significant proportion of reported cyber crimes and arrests made thereunder. The scrapped section made up for 51.6 percent of all IT Act cases reported in 2015 and 35.83 percent of all cyber crimes. The arrests made under the section were 61.49 percent of all arrests made under the IT Act and 38.63 percent of all arrests made in 2015 for cyber crimes.

It was reported in February this year that the government, which had opposed Singhal’s writ petition, is in the process of bringing in an amendment to the IT Act. It is being suggested that the amendment will be similar in nature to the previous section, although less vague.

Note: Nearly a week after YKA published this story, news about this discrepancy in the NCRB data was carried by several newspapers and other media. On September 9, the NCRB issued a corrigendum saying that the data was incorrectly presented in its report and stated that ‘Computer Related Offence Under Section 66A’ be read as ‘Computer Related Offence Under Section 66 and 66A’ in NCRB’s Crime in India report of 2015.

In reply to a parliament question by Rajeev Chandrashekhar, an entrepreneur and an MP in Rajya Sabha, asking about the actual number of arrests under Section 66A and steps taken to investigate that no arrests are made under the repealed section, the Ministry of Home Affairs admitted the corrigendum on November 23, 2016, but did not provide the actual number of arrests made under the section in 2016. The government also said that Crime in India statistics published by the NCRB will not contain cases pertaining to Section 66A in 2016.

Banner and featured image credit: Reuters/Vivek Prakash
Social featured image credit: Nitin Kanotra/Hindustan Times/Getty Images

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