In 2015, the Supreme Court struck down S. 66A of Information Technology Act, 2000. Yet the provision continues to be enforced. IFF along with Civic Data Labs (CDL) built Zombie Tracker by relying on data available on the eCourts platform to track the cases which included a charge under S. 66A. While building the Zombie Tracker we faced difficulties on the eCourts platform which impeded our ability to conduct research. We, along with CDL, have now written to Hon’ble Justice Dhananjaya Y. Chandrachud, Chairperson of the e-Committee, Supreme Court of India. In the letter, we have highlighted the difficulties we faced on the eCourts platform and provided our recommendations in a hope that our efforts enable others to conduct data-driven research of judicial trends.
As most of you know, S. 66A of the Information Technology Act, 2000 (IT Act) criminalised “offensive speech” over the internet. This provision was used to suppress dissent across the political spectrum. In March, 2015 the Supreme Court in Shreya Singhal vs Union of India & Ors., (2015) 5 SCC 1 (Shreya Singhal) declared that the provision was void ab initio, i.e. was deemed to never have existed on the statute books as it violated Article 19(1)(a) of the Constitution (summary).
As a result of this judgment, all pending cases should have been dismissed and no fresh cases should have been instituted under S. 66A. However, in 2018 a research paper by Abhinav Sekhri and Apar Gupta demonstrated that Section 66A was being used to prosecute individuals all over the country. Taking note of the research paper, People’s Union for Civil Liberties (PUCL), one of the original petitioners in Shreya Singhal, with assistance from IFF, approached the Supreme Court in January, 2019. PUCL sought directions from the Supreme Court to ensure implementation of the decision in Shreya Singhal. In February, 2019 the Supreme Court directed the Union of India to ensure compliance of its decision by making available copies of the judgment to Chief Secretaries across the country. The Chief Secretaries, in turn, were directed to sensitise police departments across the country.
IFF and CDL develop Zombie Tracker
Despite the directions of the Supreme Court, we came across reports which showed that S. 66A was still being invoked in fresh cases and pending cases were not being dismissed. Therefore, in collaboration with Civic Data Labs (CDL) we built a platform - Zombie Tracker - to track cases which include a charge under S. 66A. The Zombie Tracker provides details of S. 66A cases registered between 27.10.2009 and 15.02.2020 (both ongoing and disposed of cases) in 11 states of the country. Data generated from Zombie Tacker bolsters our advocacy efforts to ensure such cases are dismissed and fresh cases are not registered. As of 08.05.2021, our findings indicate that as many as 810 cases appear to be pending and active before the district courts in 11 States.
Difficulties we faced on the eCourts platform
We collected the findings on Zombie Tracker from the eCourts platform, as no government agency such as the National Crime Records Bureau collects data on prosecution under S.66A of the IT Act. The eCourts platform has been built under the aegis of the e-Committee of the Supreme Court to provide information related to cases before district courts across the country. The eCourts platform contains important data points (such as date of filing, hearing, disposal) and metadata (such as the provision under which a suit is filed and details of the lower court) about a case.
To build the Zombie Tracker, we initially used the “Search by Act/Section'' feature to obtain a list of all cases registered under a S. 66A of IT Act for every district court establishment and then we downloaded those cases. After a round of collection we observed that the data was incomplete. This was because the eCourt website permitted selection of standardised values while selecting an Act, but one needed to manually write the name of the section related to which they wanted cases. This meant that cases which were not tagged as ‘Section 66A’ did not show up in our initial data set. Thus, to ensure that the data is complete, we downloaded all cases under the IT Act and then manually selected cases registered under Section 66A to arrive at our findings.
While conducting this exercise we face the following major difficulties -
- Non-Standardization: Cases which included a charge under S.66A were tagged as under the IT Act, but not as a 66A case under the section tags. Some cases including a charge under S.66A were tagged as S.66a (or another variation including a combination of components “Section” or “Sec” and “66” and “a” or “A”). The lack of standardisation also extended to Act names. For example, we found that the IT Act was variously referred to as “Information Technology Act”, “INFORMATION TECHNOLOGY ACT, 2000”, “Information Technology Act, 2000”, “INFORMATION TECHNOLOGY ACT 2000”, “IT (Information Technology) Act”, “Information Technology”, “Information Technology Act 2000”, and “INFORMATION TECHNOLOGY ACT 2008”.
- Incomplete data set: During the period between 27.10.2009 to 15.02.2020, according to data available on the eCourts platform, 1988 cases were registered with a charge under S.66A of the IT Act. Of these cases, 1189 cases were tagged as disposed of by the eCourts platform. However, only 19.8% of the disposed of cases have a judgement uploaded in the case file, as available via the eCourts platform. Due to the non-availability of judgements, it was impossible to completely verify the accuracy of “Section” and “Act” tags used on the eCourts platform. This, in turn, may have resulted in certain cases under section 66A being excluded from our dataset, due to lack of verification.
Joint Letter to Hon’ble Justice Dhananjaya Y. Chandrachud
On 6th May, 2021 we along with CDL wrote a joint letter to Justice Dhananjaya Y. Chandrachud, Chairperson of the e-Committee, Supreme Court of India. In the letter, we highlighted the above issues we faced in our research and have requested him to take steps to improve the eCourt platform which would encourage independent data driven research in India. We have recommended that the eCourts platform should a) provide access to raw data after complying with the National Data Sharing and Accessibility Policy; b) standardise fields; and c) ensure that the data set is complete. We believe that if these recommendations are complied with, researchers across the country will be able to analyse judicial trends. In particular, exercises similar to Zombie Tracker could be conducted for other provisions which have been held unconstitutional but are still being invoked by law enforcement agencies.
We are hopeful that the Hon’ble Justice considers our suggestions and our efforts improve the accessibility of the eCourts platform.
Please note that this letter is independent to our participation in the consultation process of the Draft Vision Document for the eCourts Project Phase III. We are in the process of separately offering our inputs to that document, which we will share with you once we have submitted them. We encourage you to engage with the Draft Vision document and participate in the process by submitting your comments on [email protected]. We have also posted an outline of the Draft Vision Document on our website.
- Joint letter dated 06.05.2021 by IFF and CDL addressed to Justice Dhananjaya Y. Chandrachud (link)
- Zombie Tracker (link)
- Research paper titled ‘Section 66A and other legal zombies’ by Abhinav Sekhri and Apar Gupta (link)
- IFF post summarising the February, 2019 Supreme Court decision which directed Union of India to ensure compliance with the decision in Shreya Singhal (link)
- IFF post noting the non-compliance Supreme Court decision of February, 2019 and announcing the development of the Zombie Tracker (link)
- IFF post providing an update on the development of the Zombie Tracker (link)
- IFF post marking the 5 year anniversary of the Shreya Singhal Judgment (link)
- IFF post calling for greater participation in the consultation process of the Draft Vision Document (link)