Assam Police bluntly denies allegations of continued arrests under Section 66A by the Assam government.
In recent times screening of people’s social media accounts by government agencies has become almost a norm. Often, the government has been seen publishing warnings, urging people not to post false news, information, articles, etc that might lead to ‘untoward’ situations. At times, the government has openly mentioned the screening of social media accounts to keep such offenders at bay.
In Assam, mostly since the movement against the Citizenship Amendment Act started back in December 2019, the privacy safeguards of citizens’ social media accounts from the government agencies have been questioned. Quite often the government has warned that any infelicitous post found may lead to the account owner facing uncomfortable consequences.
Many have been arrested as well. Reportedly, most people who have been arrested for such acts of airing their opinions online have been done so under Section 66A of the Information Technology (IT) Act, 2000.
But what is most shocking is the fact that the above-mentioned law, under which most of such arrests have been or are made, was scrapped by the Supreme Court of India (SC) back in 2015. A recent post circulating on social media in this regard has gone viral.
The Supreme Court struck down the controversial Section 66A that made posting "offensive" comments online a crime punishable by jail, as unconstitutional on the grounds of violating Freedom of Speech guaranteed under Article 19 (1)(a) of the Constitution of India.
What is or rather ‘was’ Section 66A?
Section 66A of the Information technology Act, 2000 stated:
Punishment for sending offensive messages through communication service etc: Any person who sends, by means of a computer resource or a communication device -
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;
(c) 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, shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes of this section, terms ― electronic mail and electronic mail message - means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
What did the SC observe while scrapping this Act?
The controversial section was struck off in 2015 as a result of the Shreya Singhal versus Union of India, writ petition (criminal) case no. 167 of 2012.
The Hon’ble bench observed:
(a) Describing liberty of thought and expression as "cardinal", the SC observed. “The public's right to know is directly affected by section 66A of the Information Technology Act."
(b) Elaborating the grounds for holding the provision "unconstitutional", the court said that terms like "annoying", "inconvenient" and "grossly offensive" used in the provision are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offense.
(c) "What may be offensive to a person may not be offensive to the other."
However, less than a year of scrapping the controversial section by the SC, The Hindustan Times reported in 2016 that more than 3,000 people were arrested under the section in 2015. In fact, in 2015 alone there were 3,137 arrests under Section 66A which in 2014 was 2,423.
In the last five years, many such arrests have been made. The SC has, time and again, expressed shock at it still being in use and has upheld its decision to date.
Right to freedom of speech and expression
Right to freedom of speech and expression is every Indian’s fundamental right. In every democratic state, this is considered every citizen’s biggest right and most powerful weapon. As per Article 19 (1)(a) of the Indian Constitution, every Indian citizen can express his/her opinion freely and in public, be it on academics, society, culture, economics, or even politics. People do have the right to discuss and opine openly on the various government policies, discussions, and schemes.
But as per Article 19(2) of the Constitution, “Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
As per the order given by the Supreme Court of India, any restriction imposed against this fundamental right must be reasonable, proportionate and means of resolving the issues against the freedom of speech and expression must be uncomplicated.
List of other offences and the corresponding penalties under the IT Act, 2000-
Allegations of arrests in Assam under Section 66A
Given the continued arrests in the state under this non-existing Act, G Plus reached out to people who have been vocal on the issue. They informed that most police personnel or stations aren’t aware of the scrapping of Section 66A. They continue to threaten and arrest people who mostly post derogatory opinions or remarks against the government, police, and administration on social media, as most people themselves aren’t aware of the same. Many a time, people being critically vocal against government decisions are also arrested.
Biswajit Choudhury, an advocate of Gauhati High Court (GHC), speaking to G Plus said, “Often people in power were found to have misused the Section 66A for their own vested interest. Even in current times, the section is being misused. The People’s Union of Civil Liberties have filed a petition against the section still being in use and the SC had also issued a notice to the central government in this regard in 2019. Due to lack of proper knowledge about the scrapping of this section amongst police officials and people alike, many are still undergoing punishment under this section.”
“To victimize those who are particularly vulnerable - especially students and those who belong to weaker communities like Rajesh Gorh of North Lakhimpur who was arrested under similar circumstances for forwarding a social media post three years ago is a clear strategy to quell all dissent by making an example out of such cases. This sounds the death knell for democracy,” stated Upamanyu Hazarika, a senior advocate of Supreme Court in a press release dated 22nd July 2020.
Nabadeep Borpatragohain, advocate GHC, speaking on the issue said, “Since 2014-15 the expression of people’s opinion on Facebook has increased manifold. Along with other issues, politics is also discussed freely given that even the political parties are also equally active across social media platforms with their own IT cells. I truly believe that the action of the police and administration are often influenced by political parties. Also, derogatory posts on social media are ever-increasing.
We have seen social media movements on the rise, be it for Dehing Patkai, CAA, the release of Akhil Gogoi from jail, etc. In recent times, many cases have been registered against people for posting on social media. I would like to ask the police and administration as to how often they have taken action against such culprits of untoward posts, mostly against the government, police, and administration by themselves, without political backing. Has any case ever been registered against political parties for similar untoward posts?”
Assam Police’s stand on the allegations
Harmeet Singh, ADGP Assam Police, denying all allegations of arrests made under Section 66A, told G Plus, “Assam Police has not arrested anyone under Section 66A. That clause of the IT Act was scrapped by the SC but the other clauses still remain. We did arrest people under the other clauses but never under a clause that no longer exists.”
“People need to prove that with proper reference. If anyone points out to us any such case with a case number and other details, proper action will be taken against the officers concerned. I will definitely look into the matter myself,” Singh added.