Spooked by the Zombie? Ministry of Home Affairs issues notification directing all S.66A cases to stop

tl;dr

The Ministry of Home Affairs, on July 14, 2021 issued a notification directing all law enforcement authorities to stop registering new cases under Section 66A of the Information Technology Act, 2000 and to immediately withdraw all pending cases. This was prompted and made possible by the application filed by PUCL - where IFF assisted. We hope that this will lay the zombie section to rest once and for all.

MHA’s Notification

On July 14, 2021, in a notification marked “Most Immediate: Supreme Court Matter”, the Ministry of Home Affairs (MHA) directed Chief Secretaries and Director-Generals of Police of all states and union territories to direct all the police stations not to register cases under the repealed Section 66A of the Information Technology Act, 2000 (S66A). The notification further directs that any cases that have already been registered must be immediately withdrawn.

The Notification also referred to our application before the Supreme Court which brought this issue to the MHA's notice, and said that the “Hon’ble Supreme Court has taken a very serious view on the matter.”

The full notification can be accessed here.

PUCL’s application that led to the notification

PUCL filed a Miscellaneous Application before the Hon’ble Supreme Court seeking additional directions to ensure compliance with the decision in Shreya Singhal v Union of India, which struck down S66A as unconstitutional (summary of the decision is here). IFF provided legal assistance to PUCL in drafting, filing and arguing the Application. In the Application, PUCL has referred to the findings on the Zombie Tracker and brought to the notice of the Supreme Court the ongoing cases where individuals are being tried under S.66A.

While the sheer magnitude of the problem revealed by the data is shocking, some of the individual cases of prosecution are equally frightening. This includes the case of State v. Shekhar Rahul Nikam, RCC No. 1119/2018, pending before a Judicial Magistrate in Nashik. In this case, on 28.02.2020, charges were framed against the accused solely under S. 66A of the IT Act based on “offensive messages” sent in 2010.

There is also the even more shocking case of State v. Mohd. Sakir, Cr. Case No. 296349/2016 pending before a Magistrate at Tis Hazari Court, Delhi. In Mohd. Sakir, the FIR against the accused, is registered solely under S.66A, and at one of the hearings, the prosecutor even informed the Court that S.66A had been struck down by the Supreme Court in Shreya Singhal. Yet, the magistrate issued a non-bailable warrant against the accused!

Almost 800 cases are currently pending - approximately 200 cases are added every year

IFF, along with our friends at Civic Data Lab, developed the Zombie Tracker to track the extent of S.66A across the country. Since the data gathering was an exercise requiring high intensity of time, energy, labour and costs, it was restricted to 11 states of India. And even in these 11 states, the data that was found was staggering.

A total of 1307 cases have been registered in the six years after the Supreme Court struck the section down. A fact that is even more shocking considering only 681 cases had been registered in the six years that S66A was on the statute books. This means that almost twice as many cases have been registered under S66A after it was declared illegal.

Almost 800 cases are presently pending under S66A. If the MHA’s Notification is strictly and effectively followed, then it will mean the closure of almost 800 cases that should never have been instituted in the first place. It will also mean the average of 200 new cases per year that are currently being instituted in these 11 states will be stopped.

It is also worth noting that the data is only available for 11 states, the true numbers are likely to be much greater than what we have available. You can read more about the methodology used by the Zombie Tracker to gather data here.

But the issue is not yet closed

We welcome the MHA’s notification, and strongly encourage states and union territories to take all necessary and possible steps to achieve the goals set out in the notification of closing all pending S66A cases. This will finally help implement the decision of the Supreme Court after six long years, and it will also bring much needed relief to the hundreds of Indians that are currently being harassed by an undead provision of law.

While the MHA notification is one step towards that direction, PUCL in its application has also asked the court to:

  1. Direct Union of India through National Crime Records Bureau to collect data of cases where Section 66A has been invoked
  2. Direct Supreme Court registry to communicate to District Courts across the country to take cognizance of the judgment in Shreya Singhal vs Union of India in all proceedings where Section 66A has been invoked
  3. Direct Supreme Court registry to communicate to High Courts to collect data information from all the District Courts within its jurisdiction regarding pendency of cases under Section 66A at different stages and issue directions for due compliance of judgment in Shreya Singhal.
  4. Direct Union of India to publish in leading news papers informing the general public that Section 66A has been struck down  by the Hon’ble Supreme Court

The next date of hearing in the Application filed by PUCL that led to this notification is on August 2, and we will be present before the Supreme Court to assist the bench in fully and effectively implementing its 2015 decision in Shreya Singhal.

We thank our legal team led by Senior Advocate Sanjay Parikh, Aparna Bhat (AoR), Karishma Maria, Sanjana Srikumar, Abhinav Sekhri, Vrinda Bhandari, Tanmay Singh, and Krishnesh Bapat.

Important Documents

  1. MHA’s notification dated July 14, 2021 directing the closure of S.66A prosecutions (link)
  2. Previous blogpost dated July 5, 2021 titled “PUCL approaches Supreme Court seeking directions against continued prosecutions under the unconstitutional Section 66A” (link)
  3. Application filed by PUCL (link)
  4. Zombie Tracker (link)