A version of this story originally appeared in Newslaundry Hindi on July 13.

On July 14, the home ministry wrote to all states and union territories with instructions to ensure that fresh cases are not registered under Section 66A of the Information Technology Act.

In its advisory, the home ministry also said that cases already booked under Section 66A must be “immediately withdrawn”.

Section 66A made it a punishable offence for any person to send “grossly offensive” or “menacing” information, or information known to be false but sent to cause “annoyance, inconvenience, danger” and so on, using a computer or communication device. The Supreme Court struck down the section in 2015 after calling it “draconian”.

Yet, the cases continued. On July 5, the People’s Union for Civil Liberties, or PUCL, told the Supreme Court that there are still 745 “pending and active” cases under Section 66A before the district courts in 11 states, as on March 10, 2021. The Supreme Court expressed its shock and the central government’s directive followed soon after.

In its petition to the Supreme Court, PUCL had said there are ongoing cases under Section 66A in Assam, Andhra Pradesh, Delhi, Jharkhand, Karnataka, Maharashtra, Rajasthan, Tamil Nadu, Telangana, Uttar Pradesh and West Bengal. According to data cited in the petition, 1,988 cases were registered between November 2009 and February 2020. Maharashtra has the maximum number of cases with 38.

This data was compiled from a platform called Zombie Tracker built by the Internet Freedom Foundation and Civic Data Labs.

Tanmay Singh, associate litigation counsel of the Internet Freedom Foundation, told Newslaundry, “The judgement given by the Supreme Court in 2015 said that laws like 66A are against our constitution and our fundamental rights. Such a law should never have been passed. When a law is scrapped, all the cases registered before or after it are dropped. But here, new cases are being filed and tried under a law that has been scrapped.”

Is there lack of coordination or awareness between the police and the judicial system? “We can say that,” Singh said, “because it appears so from the way cases are being registered.”

Cases invoking 66A

In 2019, the Bijnor police in Uttar Pradesh registered a case against five journalists – Ashish Tomar, Shakeel Ahmed, Moin, Amir and Lakhan – under Section 66A. They were booked for publishing “fake news” in the context of a Valmiki family being allegedly stopped from using a handpump for water.

Ashish Tomar, one of the journalists booked, told Newslaundry that members of a scheduled caste community had not permitted the Valmiki residents to fill water from their handpump. Upset, he said, the Valmiki residents put posters outside their houses saying “This house is for sale”.

“Many big media organisations, along with Dainik Jagran, published the news at the time,” Tomar said. However, he and four other journalists were soon accused of spreading “fake news” and the police registered a case. The FIR said Tomar and others had tried to “upset social harmony”.

Tomar finally got relief in 2020, when a Bijnor court refused to take cognizance of the case. On cases still being filed under Section 66A, he told Newslaundry, “We can’t let go of the matter just like that. All journalists would soon go to court against this. The truth cannot be suppressed by entangling journalists in false accusations and sections.”

But Tomar isn’t alone.

Zakir Ali Tyagi, 25, is a journalist and activist in Uttar Pradesh. In 2017, the police registered a case against him under 66A, after Tyagi criticised chief minister Adityanath in a Facebook post. Tyagi was jailed for over 40 days. He was only 18 years old at the time.

“I was put behind bars without any information,” Tyagi told Newslaundry. “When I came out, I found that I’d been charged under 66A. I held a press conference. The police then withdrew 66A but registered the case under a different section of the same law. They also added the charge of sedition after I got bail.”

In 2018, lawyer and social worker Shamshad Pathan faced a similar situation in Ahmedabad, when the Gaikwad Haveli police registered a case against him under Section 66A. Police inspector VJ Rathod told the Times of India at the time that Pathan had been booked for trying to “incite communal tension by spreading a message about a false rape and suicide case”.

Pathan told Newslaundry that a minor girl had died by suicide after being allegedly harassed by a man. The police had refused to register an FIR, he said, so he had gone to the police station with some others to “pressurise” them.

“VJ Rathod’s pride was hurt and he was looking for a chance to suppress the voice of social workers,” Pathan said. “So, 66A was put on me. When the matter blew up in the media, the police swapped 66A for 66C...The matter is pending in court.”

There are several other cases under 66A against journalists, artists and social workers. In February 2020, a professor in Assam was booked under the section for posting “derogatory” comments on Narendra Modi on social media. The following month, a Patna court granted bail to two people jailed for six months after being booked under 66A and other sections of the law. In April 2020, 16 cases were registered against Republic chief Arnab Goswami for using “objectionable language” against Sonia Gandhi. One of the cases was booked under 66A.

Shreya Singhal is a lawyer who was the petitioner in Shreya Singhal vs Union of India, the case whose judgement led to 66A being struck down. Days before the home ministry’s advisory, Singhal told Newslaundry, “I’m amazed that the police, who are the defender and the wielder of the law, are still using 66A. It has been six years since the law was struck down. The ignorance of the law cannot become a way to save oneself. There was a lot of media coverage after the Supreme Court struck it down. It is shameful that law agencies are still using section 66A which has been deemed unconstitutional.”

Translated from Hindi by Shardool Katyayan