Supreme Court delivers verdict on arrests for posting ‘objectionable’ content.
By Rajiv Theodore
NEW DELHI: These are some chilling facts enacted not from an Orwellian nightmare but in an emerging India where broad hints at curbing and stifling the freedoms of expression were not so subtly delivered: Air India cabin crew members Mayank Mohan Sharma and KVJ Rao had shared jokes on politicians that were easily available online. Within hours, by midnight, police swooped on their Mumbai houses and arrested them under the controversial 66(A) and 67 sections of the Information Technology Act. They were in jail for nearly two weeks.
A 21-year-old Mumbai woman shared her views on the shutdown of the Mumbai city at a time when Shiv Sena chief Bal Thackeray’s funeral was being held. Her friend “liked” her post. The next day, both were arrested and ordered by a court to serve 14 days in jail. Hours later, they were allowed out on bail after paying two bonds of Rs. 15,000 each.
The woman had posted, “Respect is earned, not given and definitely not forced. Today Mumbai shuts down due to fear and not due to respect”. A local Shiv Sena leader filed a police complaint and the woman and her friend who liked her post were booked under Section 295 A of the Indian Penal Code (IPC) for “deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.”
Cartoonist AseemTrivedi was nabbed on charges of sedition for displaying objectionable cartoons during the Anna Hazare protest in the Bandra-Kurla complex.
A government official was arrested for allegedly posting ‘objectionable’ content, easily available online about Samajwadi Party chief Mulayam Singh Yadav and Union Minister KapilSibal, on social networking website Facebook.
Those are only some of the recent agonizing examples of authorities coming down hard on unsuspecting people and making dubious arrests.
Arrest after arrest had followed from different parts of the country for such ‘’heinous’’ crimes of posting ‘’objectionable’’ content on social networking sites. They could be in the form of an innocuous tweet about a political leader’s style of functioning or the way the country is grappling or choosing not to tackle the burning issues.
But, a ray of hope has finally pierced the veil of despondency.
The Supreme Court yesterday said that no person should be arrested for posting objectionable comments on social networking sites without taking prior permission from senior police officials. The apex court, which refused to pass an order for a blanket ban on the arrest of a person for making objectionable comments on websites, said state governments should ensure strict compliance of New Delhi’s January 9th advisory which did not allow a person to be arrested without taking permission from senior police officials.
“We direct the state governments to ensure compliance with the guidelines (issued by Center) before making any arrest,” a bench of Justices B S Chauhan and DipakMisra, said.
The advisory issued by the Center says that, “State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of Inspector General of Police (IGP) in metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police (DCP) or Superintendent of Police (SP) at district level, as the case may be.”
Section 66A of the Information Technology (IT) Act states that any person who sends, by means of a computer resource or communication device, any information that was grossly offensive or has a menacing character, could be punished with imprisonment for a maximum term of three years, besides imposition of appropriate fine.
Corporate lawyers say that technically, anything that is said on the Internet is subject to the same laws as it is published in any other medium. The most likely charges that could be brought against a tweet or a status update are defamation – publication of a statement about someone which injures their reputation in the eyes of reasonable members of society – or incitement.
Another twist into this larger drama of curbing the social media is the deep rooted feeling of helplessness when it comes to counter rumor mongering through videos, posts and tweets on Facebook and Twitter, as it had happened in the case of violence in parts of the north-east of the country.
According to social media experts, government officials (including law enforcement agencies) were feeling toothless till now to counter rumor mongering through videos, posts and tweets on Facebook and Twitter regarding the north-east violence. The government had also felt helpless as it could not respond to attacks against it on the corruption agenda by Anna Hazare and his team.
Thatgalvanized the government to come out with a social media policy for its employees, notified by the Department of Information Technology. The social code of conduct prescribes that all accounts by government officials on platforms such as YouTube, Twitter or Facebook should be operated for official use only and not for any political propaganda. “These guidelines will enable the various agencies to create and implement their own strategy for the use of social media,” Department of IT and Electronics said in a statement.
As per the new code of conduct, if a government department chooses to open a social media account, wall posts on sites such as Facebook would have to be updated at least a couple of times a week and on sites such as Twitter even more frequently.
But the government has also directed departments not to retort to public comments on draft legislations, or sub-judice matters, to avoid the Facebook account or the official Tweets becoming a forum for debates. It has also advised officials to not make any comments about any individual from the official tweet or blog.
Telecom Minister KapilSibal has said that the government does not want to control the social media but stressed the need for regulations. He says social media is a powerful tool of the current era but can be “a very dangerous customer.”
“It is not about control but how to have some regulations. We don’t want to control the social media,” says Sibal. “Whenever we talk about regulations in social media, the government is attacked. A situation is created that the government is trying to curb the freedom of expression. But no media should be outside the law of the country.”