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Kolkata: Section 66A of the IT Act may have been struck down six years ago, but that hasn’t stopped the police from holding on to cases filed under it or even filing new ones. Thirty-seven cases under the section are pending in West Bengal. The accused in one such case is Ambikesh Mahapatra, a chemistry professor at Jadavpur University, Kolkata.
Mahapatra was arrested in April 2012 for forwarding a cartoon on chief minister Mamata Banerjee, then railway minister Mukul Roy and his predecessor Dinesh Trivedi, to 65-odd people via email.
Earlier this month, the Supreme Court came down heavily on the Union government and issued a notice on the use of Section 66A of the Information Technology (IT) Act, which was struck down by the apex court in the landmark Shreya Singhal judgment in 2015.
A bench of Justices R.F. Nariman, K.M. Joseph and B.R. Gavai issued notice to the Centre on an application filed by the NGO People’s Union For Civil Liberties (PUCL) and said, “What’s going on is terrible.”
PUCL’s lawyer told the court that prior to the scrapping of Section 66A, there were 229 pending cases under the section. Since then, 1,307 new cases have been registered, of which 570 are still pending.
On July 15, the Ministry of Home Affairs (MHA) asked all states and union territories to immediately withdraw the cases registered under the Section 66A of the Information Technology Act.
“…requested to direct all the police stations not to register cases under the repealed Section 66A of the Information Technology Act, 2000 and sensitise the law enforcement agencies for the compliance of the order issued by the Hon’ble Supreme Court on 24.03.2015. If any case has been booked in your State under section 66A of the IT Act, 2000, it should immediately be withdrawn,” the notice said.
The case against Mahapatra
When the Kolkata police from the Purba Jadavpur station arrested Mahapatra and his friend Subrata Sengupta (a senior citizen), Sections 114, 500 and 509 of the India Penal Code (IPC) were invoked in the arrest memo along with Section 66A (b) of IT Act.
However, when the police submitted the chargesheet to the Alipore criminal court, all charges under the IPC were dropped and only Section 66A (b) (c) of the IT Act was pressed.
The chargesheet was filed in the lower court in June 2013, but no hearing has happened since. Hence, the charges were neither framed nor discharged by the court.
In the Shreya Singhal judgment in 2015, the Supreme Court declared Section 66A of the IT Act as unconstitutional for excessively and disproportionately invading the right to free speech and expression. Singhal’s petition in the court cited Mahapatra’s case.
After the apex court’s judgement, Mahapatra filed a petition in the Alipore criminal court to know if the case can be dismissed following the Supreme Court’s judgement. The court never responded to the petition.
Later in November 2017, Mahapatra’s friend Sengupta, who was suffering from various ailments due to old age, moved a petition in the Calcutta high court to quash the case in the lower court. In the first hearing , the high court said that no further order will be passed by the trial court until further orders from the high court. In May 2019, Sengupta passed away at the age of 80. The high court later dismissed the case as the petitioner was no more.
It has been eight years since the chargesheet was filed by the police, but Mahapatra’s case under Section 66A is still active in a lower court in Kolkata, without any hearing.
Mahapatra remembers each and every date pertinent to the case since he was arrested on the night of April 12, 2012. When asked how he could remember every single date, he smiled and said, “I am living this case for nine years now. It has become a part and parcel of my life.”
While Mahapatra’s old friend could not get rid of the charges before his death, Mahapatra’s fight against the system continues.
When asked if the case has caused him any mental trauma, Mahapatra said, “This case definitely took a mental toll on me. However, the support from my family, friends and many people from the civil society helped me in fighting it out. I’m living with the case every single day, although I know I have made no mistake. I am simply suffering because of an intolerant and vindictive chief minister and her government.”
Mahapatra recalled the ordeal he faced while renewing his passport. As a criminal case was registered against him, he had to get special permission from the trial court for his passport renewal. Upon receiving the court’s permission, the passport department scheduled his interview and gave him a renewed passport with standard ten years validity.
But after Kolkata police’s routine verification, his renewal was rejected. The passport issuing authority re-initiated the police verification process as all documents were proper and Mahapatra even got the court’s clearance. Even the second time, Kolkata police rejected the approval even when officials who visited Mahapatra’s house for verification said all documents were fine.
After the second rejection, the passport issuing authority wrote a letter to Mahapatra and asked him to submit the passport as his renewal was rejected. Later with some legal help, he applied for a passport again. After making efforts for over a year, the authority issued a special one-year-validity passport.
The state human rights commission then took suo moto cognisance of the event and ordered compensation of Rs 50,000 each to both Mahapatra and Sengupta, and also ordered a departmental enquiry against the prosecuting officers.
The state government, however, ignored the commission’s order, after which the two men moved the higher court. In March 2015, after several rounds of hearing, the Calcutta high court upheld the commission’s order and directed the state government to make an additional payment of Rs 25,000 each to bear the legal costs.
The government later moved a division bench of the high court challenging the March order. Since then, there has been no hearing on the matter and no compensation received.
The Wire made several attempts to contact state law minister Moloy Ghatak, but the calls went unanswered. This article will be updated if a response is received.