Section 66A was struck down in 2015 but police stations continue to use it whenever a meme or a post is deemed ‘objectionable’
Four years ago, free speech got a boost as the Supreme Court declared a draconian provision — Section 66A of the Information Technology Act, 2000 — unconstitutional. The case — Shreya Singhal vs Union of India — was expected to stop misuse of this law to scotch dissent and contrary views. But police stations in the country seem to have missed the memo.
On May 15, BJP activist Priyanka Sharma was released after five days in prison. Her “crime”: Posting a meme of West Bengal CM Mamata Banerjee. The state police had booked her under the outdated Section 66A.
Sharma is not the only one. If ever there was evidence that law enforcement is caught in a time warp, it is here. A 2018 research paper by lawyers Abhinav Sekhri and Apar Gupta from the Internet Freedom Foundation found 45 cases under 66A pending before the country’s high courts between January-September 2018, and 21 cases pending before the SC between March 2015 and September 2018. The research was based on online searches and did not cover FIRs or lower courts. In fact, NCRB has even stopped collecting data on the 66A FIRs. The two lawyers took the issue up with the SC who demanded that all police stations be updated about the SC 2015 ruling.
Gupta describes the use of the section as illegal and an affront to rule of law. “Section 66A was found to suffer from legal defects since its inception. Yet it continues to be used by those in authority against those who are economically and socially disempowered. When victims protest, the police conveniently drop the ‘A’ in this zombie law.”
Went to jail for FB post on Yogi
Zakir Ali Tyagi, 20
‘Yogi ne Gorakhpur mein kaha ki gunde badmash UP chhodh kar chale gaye. Meri kya majaal ki keh sakun ki Yogi par kul 28 mukadme darj hain jinme 22 bahut gambhir hai.’’ (UP CM Yogi Adityanath has said in Gorakhpur that criminals have left the state. Do I dare remind him that he himself faces 28 criminal cases of which 22 are serious charges?) Seventeen-year-old Tyagi posted this on his Facebook wall on the evening of March 30, 2017, and then drifted off to sleep in the Muzaffarnagar factory where he was living and working part-time. After the death of his father, his relatives had given him food and lodging on the condition that he help out as an accountant at the factory. Tyagi left for college as usual the next day and the next. On April 2 night, the police came knocking. “I offered them water, a chair to sit, joked with them still not realising that something was wrong,” he recalls.
It was only later when the policemen bundled him off in their van and drove around the city for an hour that panic struck. “I was shown my post. That is when the penny dropped,” he says. Tyagi had been arrested under section 66A of the IT act.
At the police station, he alleges that he was beaten up and threatened that his family home would be burnt down. “My trust in the system was shattered in that one hour. I realised that no matter what I said, there was no one to hear me beyond the station walls,’’ he says. Tyagi says he was sent to police custody without a court hearing and his bail application rejected. It was only 42 days later that he was finally granted bail. He later found that 66A was dropped and a sedition charge slapped on him.
Though he is finally out of prison, the stint has changed him forever. He had dreamt of travelling to Delhi to study journalism in the big city. Now he knows that no one will take him as a tenant when they find that he has a police record. Now, he is focusing on finishing his graduation and then studying law. “Pehle lagta tha sirf gunehgaar jail jaate hain. Ab mein jaanta hoon, jail mein baigunah bhi hote hai. ( I used to think that only criminals are sent to jail. Now, I know the innocent suffer too.)”
Tyagi says he is in touch with 20 others who have been similarly accused under 66A or sedition for social media posts. The experience has not blunted his critique of the establishment. “I am not scared. I will continue to speak up when I see injustice,” he says.
A like and a comment turned his world upside down
Haroon Khan, 22
‘For one ‘like’, I have been made to feel like a terrorist,” Haroon Khan says. Khan, who runs a sunglasses store in UP’s Bahraich, was arrested on November 23, 2018 for a post he had liked and commented on two months ago.
Khan had recently returned from Dubai, after having worked there as a foreman at a construction site. While he was abroad, Khan started posting comments critical of the BJP on his Facebook wall. “When I was in Dubai, some people from Bahraich noticed my posts and I received anonymous threats. But I didn’t think too much about them,” he says.
In September, a friend put up an offensive comment about RSS on a picture of UP CM Yogi Adityanath waving a green flag. Responding to this, Khan called Yogi “dogalenath’’ or hypocrite.
It was after he came back to live with his parents in Bahraich that trouble began to brew. On November 14, 2018, Khan inaugurated his sunglasses store on a busy city street and around the same time, he heard through friends that saffron organisations like VHP, Bajrang Dal and others had gone on a dharna over the comment in the main town square. On November 23, police arrested Khan and four others, charging them under 66A for defaming the CM.
“I protested at the thana. But instead I was met with insults and abuses. I was locked up and branded as an anti-national,” he says.
Khan’s bail was accepted only a week later. “It was as if I was a threat to national security,” he says. His middle-class family was shocked. “My father refused to let me use the phone for two months and my mother just held me and cried. She told me ‘aisa mat karo ki tumhare gham mein hum jaan de de’ (Don’t do something that will be the death of me),” he says.
After his release, many old friends turned away but new ones came forward instead. “I was offered a position as social media in charge by the AIMIM (All India Majlis-e-Ittehad-ul-Muslimeen) party and they have given me new strength and respect. Otherwise I would have been a broken man,” he says. Political engagement is the only solution, he feels.
Khan now restricts his social media posts to those required at work but the anger and frustration is palpable. “There is so much hue and cry over Priyanka Sharma. Is there justice only for those who support the ruling party,’’ he asks.
Modi fan gets booked
Sharada Diamond, 32
Bengaluru-based techie Sharada spends her day peering into a computer. The only thing other than code that animates her is the mention of Modi. “I am a big fan,” she says. Her political loyalties meant that she was often critical of the ruling JD(S) in her posts and comments, which left her open to trolling and online hostility.
This April, she reportedly shared a fake letter written by Karnataka Home Minister MB Patil to Sonia Gandhi in 2017 about a plan to divide the state on communal lines. Fact-checking websites also proved that the letter was indeed fake.
However, Sharada claims that the letter was published in a newspaper which she merely re-posted on Facebook like many others. Two days later on April 18, she received a call from someone who claimed to be Patil’s lawyer asking her to take down the post. Sharada didn’t agree. Then on April 29, she was tagged by a friend warning her that a complaint had been registered at the Srirampura police station against her for spreading fake news and she would soon be arrested.
Sharada consulted a lawyer and moved out of her paying guest accommodation to a relative’s home. She also switched off her phone. Her lawyer in the meantime got an interim bail application approved. “My father said that if you have chosen political work, you have to live with the consequences,” she says.
When Sharada found that she had been booked under 66A, she decided to approach the high court to challenge the case. She says, “I will not apologise. I know I am being targeted because I have questioned people in authority.’’