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print version(Posted below is an article by Pranesh Prakash and a news report from The Hindu)
The Centre for Internet and Society
Arbitrary Arrests for Comment on Bal Thackeray’s Death
by Pranesh Prakash at Nov 19, 2012 10:05 PM | Permalink
Two girls have been arbitrarily and unlawfully arrested for making comments about the late Shiv Sena supremo Bal Thackeray’s death. Pranesh Prakash explores the legal angles to the arrests.
Facts of the case
This morning, there was a short report in the Mumbai Mirror about two girls having been arrested for comments one of them made, and the other ’liked’, on Facebook about Bal Thackeray:
Police on Sunday arrested a 21-year-old girl for questioning the total shutdown in the city for Bal Thackeray’s funeral on her Facebook account. Another girl who ‘liked’ the comment was also arrested.
The duo were booked under Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. Though the girl withdrew her comment and apologised, a mob of some 2,000 Shiv Sena workers attacked and ransacked her uncle’s orthopaedic clinic at Palghar.
“Her comment said people like Thackeray are born and die daily and one should not observe a bandh for that,†said PI Uttam Sonawane.
What provisions of law were used?
There’s a small mistake in Mumbai Mirror’s reportage as there is no section "64(a)"1 in the Information Technology (IT) Act, nor a section "295(a)" in the Indian Penal Code (IPC). They must have meant section 295A of the IPC ("outraging religious feelings of any class") and section 66A of the IT Act ("sending offensive messages through communication service, etc."). (Update: The Wall Street Journal’s Shreya Shah has confirmed that the second provision was section 66A of the IT Act.)
Section 295A of the IPC is cognizable and non-bailable, and hence the police have the powers to arrest a person accused of this without a warrant.2 Section 66A of the IT Act is cognizable and bailable.
Update: Some news sources claim that section 505(2) of the IPC ("Statements creating or promoting enmity, hatred or ill-will between classes") has also been invoked.
Was the law misapplied?
This is clearly a case of misapplication of s.295A of the IPC.3 This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine’s book Shivaji: Hindu King in Islamic India happened under s.295A, and the ban was subsequently held to have been unlawful by both the Bombay High Court as well as the Supreme Court. Indeed, s.295A has not been applied in cases where it is more apparent, making this seem like a parody news report.
Interestingly, the question arises of the law under which the friend who ’liked’ the Facebook status update was arrested. It would take a highly clever lawyer and a highly credulous judge to make ’liking’ of a Facebook status update an act capable of being charged with electronically "sending ... any information that is grossly offensive or has menacing character" or "causing annoyance or inconvenience", or under any other provision of the IT Act (or, for that matter, the IPC).4 That ’liking’ is protected speech under Article 19(1)(a) is not under question in India (unlike in the USA where that issue had to be adjudicated by a court), since unlike the wording present in the American Constitution, the Indian Constitution clearly protects the ’freedom of speech and expression’, so even non-verbal expression is protection.
Role of bad law and the police
In this case the blame has to be shared between bad law (s.66A of the IT Act) and an abuse of powers by police. The police were derelict in their duty, as they failed to provide protection to the Dhada Orthopaedic Hospital, run by the uncle of the girl who made the Facebook posting. Then they added insult to injury by arresting Shaheen Dhada and the friend who ’liked’ her post. This should not be written off as a harmless case of the police goofing up. Justice Katju is absolutely correct in demanding that such police officers should be punished.
Rule of law
Rule of law demands that laws are not applied in an arbitrary manner. When tens of thousands were making similar comments in print (Justice Katju’s article in the Hindu, for instance), over the Internet (countless comments on Facebook, Rediff, Orkut, Twitter, etc.), and in person, how did the police single out Shaheen Dhada and her friend for arrest?5
Social Media Regulation vs. Suppression of Freedom of Speech and Expression
This should not be seen merely as "social media regulation", but as a restriction on freedom of speech and expression by both the law and the police. Section 66A makes certain kinds of speech-activities ("causing annoyance") illegal if communicated online, but legal if that same speech-activity is published in a newspaper. Finally, this is similar to the Aseem Trivedi case where the police wrongly decided to press charges and to arrest.
This distinction is important as it being a Facebook status update should not grant Shaheen Dhada any special immunity; the fact of that particular update not being punishable under s.295 or s.66A (or any other law) should.
- Section 64 of the IT Act is about "recovery of penalty" and the ability to suspend one’s digital signature if one doesn’t pay up a penalty that’s been imposed.
- The police generally cannot, without a warrant, arrest a person accused of a bailable offence unless it is a cognizable offence. A non-bailable offence is one for which a judicial magistrate needs to grant bail, and it isn’t an automatic right to be enjoyed by paying a bond-surety amount set by the police.
- Section 295A of the IPC has been held not to be unconstitutional. The first case to challenge the constitutionality of section 66A of the IT Act was filed recently in front of the Madurai bench the Madras High Court.)
- One can imagine an exceptional case where such an act could potentially be defamatory, but that is clearly exceptional.
- This is entirely apart from the question of how the Shiv Sena singled in on Shaheen Dhada’s Facebook comment.
New Delhi, November 19, 2012
Katju blasts arrest of women who commented on FB
Special Correspondent
Press Council of India chairperson Markandey Katju on Monday slammed Maharashtra Chief Minister Prithviraj Chavan after the police arrested two women who protested on Facebook against Sunday’s bandh over the death of Shiv Sena supremo Bal Thackeray.
In a letter to Mr. Chavan on Monday, Mr. Katju, a former Supreme Court judge, said he was forwarding an e-mail he had received stating that a woman was arrested in Maharashtra for protesting on Facebook against the shutdown in Mumbai. She was arrested for allegedly hurting religious sentiments, the letter said. Mr. Katju was going by the email, based on Sunday’s news reports that reported the arrest. On Monday, the police said two young women were arrested for their comments on the bandh.
“To my mind it is absurd to say that protesting against a bandh hurts religious sentiments. Under Article 19(1) (a) of our Constitution, freedom of speech is a guaranteed fundamental right. We are living in a democracy, not a fascist dictatorship. In fact this arrest itself appears to be a criminal act, since under Sections 341 and 342 it is a crime to wrongfully arrest or wrongfully confine someone who has committed no crime,†Mr. Katju pointed out.
He told Mr. Chavan that if the facts reported were correct, the police personnel who ordered as well as implemented the arrest of the women should be suspended, arrested, chargesheeted and criminal prosecution initiated against them. If this was not done, Mr. Katju said, he would deem it that as Chief Minister, Mr. Chavan was unable to run the State in a democratic manner as envisaged by the Constitution to which he has taken oath.
However, over five hours after his first e-mail, Mr. Katju shot off another one to Mr. Chavan saying he had not been informed if any action had been taken. Mr. Chavan had forwarded Mr. Katju’s e-mail to the Additional Chief Secretary (Home), Amitabh Rajan, but this seems to have angered the PCI chairperson more. In the second e-mail, he said: “You have not replied to my e-mail but only forwarded it to someone called Amitabh Rajan, whom I do not know, and who has not had the courtesy to respond to me. Please realise that the matter is much too serious to be taken in this cavalier manner, because the principle of liberty is at stake. The entire nation wants to know what action you have taken. I would, therefore, request you to immediately let me know what you are doing in this matter.â€
Does freedom of speech, guaranteed by Article 19(1) (a), exist in Maharashtra, Mr. Katju asked. He told Mr. Chavan that silence was not an option and that the entire nation was furious at this apparently illegal arrest. He has asked for explanations on why an arrest was made for putting up “apparently innocuous material on Facebook, and what action was taken against the delinquent policemen and others involved in this high handedness and blatant misuse of state machinery.â€
