This is the first of a two-part series on what needs to be done to protect the rights of citizens and netizens against unfair, excessive, and punitive arrests for social media content which, by most standards, is nothing more than mildly offensive and certainly no threat to public security or the safety of any individual.
Incarcerating citizens for weeks on end for posting against politicians — this needs to stop immediately. Else, we will be a republic in which politicians are more privileged than ordinary citizens in the eyes of the law. The Constitution of India guarantees the right to freedom of expression of citizens under Article 19. Of course, this freedom is not unrestrained but must conform or come under the ambit of “reasonable restriction” as specified in article 16(2) of the Constitution. The State must not curb or enact laws against the rights enshrined in Article 19 of the Constitution. And yet, many citizens and netizens in the country are — or have been — jailed for their comments on social media. The victims are mostly young and the reason they have been incarcerated is because they wrote against some political leader or other.
The modus operandi of harassment is similar. Multiple cases are filed against the so-called offenders under various sections of the Indian Penal Code. The favourite one, for example, is our own equivalent of a “blasphemy law” — Section 295A — “Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” Another favourite section is 153A, “promoting enmity between groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.”
Sections 499 and 500 of the IPC, which cover defamation, are often invoked: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person” and “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
In addition, Sections 292-293, which punish obscenity, indecent representation of women under the 1998 Act, Section 509, insulting the modesty of women, Section 506, criminal intimidation, and Section 124A, sedition — all these and more may be invoked to file cases against the targeted individual. Section 66A of the Information Technology Act pays special attention to regulating social media. It prohibits offensive content, which is false, insulting, or intended to cause annoyance or injury to others, or designed to spread hatred, from being posted and circulated on platforms such as Facebook, Twitter, Instagram, WhatsApp, and so on. So the provisions of this Act may also be invoked against a so-called offensive post.
Given the power of social media, some of these regulations and curbs are, no doubt, necessary. But are they really effective? Looking through your social media feed, you know that there are any number of anonymous accounts, many of which are bots or fake handles, which post incendiary material. This continuous barrage of weaponised information not only brainwashes millions, but creates hatred and divisiveness in society. In fact, in a current case, members of a political party openly threatening violence against an already imprisoned so-called social media offender, even caught on camera throwing footwear at her and hurling abuses, walk away from the law while she still languishes in jail.
Yes, while ordinary citizens rot in jail, politically protected perpetrators of hate are rarely brought to book. There is big money behind information warfare, with political parties spending crores on their media cells. The result? The big fish, or should we call them the real sharks, who operate anonymously and are protected by political dispensations, go scot-free. Even if some hate handles are taken down, others spring up by the minute. But woe to the individual who is caught out. He or she is picked up, sometimes transported to another state, and languishes in jail for weeks, even months, till he or she stands trial.
What is the way to safeguard individual freedoms in such a situation? It seems to me that the best way forward is for the Supreme Court to notify certain guidelines over arrests and incarceration of citizens in social media cases. Let us examine the court’s own strictures in October 2020 on the West Bengal Police for issuing summons to Roshni Biswas, then 29, who had criticised the state for not enforcing COVID-19 norms. The court observed, “We cannot have citizens hauled from one corner of the country to another for a social media post criticising the government.” The bench, consisting of Justices DY Chandrachud and Indira Banerjee, issued a stern warning to the West Bengal police: “Do not cross the line. Let India remain a free country. We, as the Supreme Court, are here to protect free speech. The reason why the SC was created by the Constitution is to ensure that ordinary citizens are not harassed by the state.”
The counsel for Roshni Biswas, Mahesh Jethmalani, argued that his client was being intimidated. West Bengal prosecutor, R Basant, tried to defend the action of the state by contending that Roshni Biswas was being summoned for questioning, not arrest. The Supreme Court observed, “This is browbeating a citizen for exercising the right to free speech. One can’t be prosecuted for saying the pandemic is not dealt with properly. … It is like saying how dare a citizen write something against the government, we will haul her up by summoning her from any part of the country.”
In the next part of this article, let us look at what guidelines might be derived from judgements such as the above to prevent or minimise the harassment of citizens at the hands of an overzealous legal machinery working at the behest of political forces.
[To be concluded]
The author is a professor of English at Jawaharlal Nehru University, New Delhi. Views expressed are personal.