In the first part of this column, we saw how the Supreme Court is quite aware of the many instances of the misuse of existing sections of the Indian Penal Code and the misapplication of deleted portions of Section 66A of the Information Technology Act when it comes to the harassment of ordinary citizens. Many are thrown into jail for weeks on end, without either bail or trial, for so-called offences against political leaders which seem relatively minor and are more in the nature of insults than threats to public peace or any individual’s safety.
It would appear that in such instances, the law is being misused or misapplied more often than not to teach the offender a lesson than for any greater public good. It is as if the political dispensation in power wishes to send out the message, “How dare you criticise or disparage our ‘great leader.’ No punishment is severe enough for those guilty of this sin. Go, rot in jail till we let you out!” Can any right-thinking citizen doubt that such an attitude is a travesty of the fundamental right to freedom of expression or equality of all citizens under the law?
Moreover, is it not a blot on the republic when its citizens are incarcerated for insulting political leaders rather than for serious crimes? The very law and order machinery, paid for by our taxes and the revenues of the land, is being directed against us. Our leaders are elected to serve us. They occupy the positions that they hold at the pleasure of the electorate. How, then, can criticising them become a crime so serious that citizens must spend weeks on end in jail? What justification can there be for the trauma that they and their families undergo?
From the above and similar observations emanating, as we have previously shown, from the highest court of the land, we might derive some salutary guidelines, which, with the necessary modifications, may be sent to every police thana in the country.
On receiving a complaint on offensive social media content, the following procedures are to be adopted before and after arresting the individual concerned:
Before arrest:
1) Police must conduct a preliminary inquiry to ascertain that a serious offence has indeed been committed. If there is insufficient prima facie evidence of such an offence, no FIR should be registered, let alone an arrest carried out.
2) If, in view of the investigating officer, an offence has indeed been committed, the offending post must be ordered to be taken down by the individual. If the individual does so, no further action needs be taken.
3) If the individual declines, then the social media platform can be ordered to remove the content.
4) The individual may be questioned or called in to the police station. The complaint against the offence material should be clearly communicated. If the individual retracts it and/or apologises for it in writing, no further action is to be taken.
5) If the individual neither retracts nor apologises, the police must give him or her a show-cause notice, to which they may be given reasonable time to reply.
6) If the reply is not satisfactory or if the person is a repeat offender, then they may be taken into custody.
After arrest:
1) The arrested person must be produced before a magistrate within 48 hours.
2) Wherever possible, bail must be set immediately and the person released forthwith.
3) The person himself or herself cannot be construed as posing a threat to public safety after the offending post has already been taken down. Therefore, under no circumstances should he or she be kept in jail for more than a week.
4) A separate branch to speed track social media offenders may be set up for quick trial and disposal of cases. Such a bench can even meet online and may consist of eminent citizens appointed as judges/members of a citizens' jury for this particular purpose only.
5) Works of art, cartoons, poems, and other creative material which contain satire, irony, or other forms of humour and wit, should be exempt from the provisions of the acts that hold citizens for promoting enmity between communities unless the offence if grave and serious.
6) If individuals or parties are not clearly identifiable or clearly defamed, citizens should not be punished. Criticising or questioning the actions of elected representatives and leaders is every citizen’s right provided it is not deliberately and obviously false, malicious, harmful to anyone’s safety, and so on.
With over 622 million active netizens in India, we are soon moving into the era of digital democracy. The rights of citizens to express themselves and criticise politicians cannot be curtailed by too narrow and citizen-unfriendly applications of the law. Politicians as a class are not entitled to greater rights or higher levels of protection from social media scrutiny or disapproval than ordinary citizens. Overzealous use of the legal machinery to protect the reputations of politicians is therefore an overreach of the law against ordinary citizens.
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As such it constitutes not only curtailing our rights but also curbing democracy. A citizen languishing in jail for a minor misdemeanour such an irresponsible or offensive social media post is blot on our judicial system and the sanctity of the republic itself. It makes us an intolerant and authoritarian society, incapable of facing even the slightest criticism. The Supreme Court, therefore, may in its wisdom consider issuing the sort of guidelines that have been suggested in this article, to safeguard both the rights of citizens and the very Constitution of India which guarantees them.
This is the second and final part of a two-part series.
The author is a professor of English at Jawaharlal Nehru University, New Delhi. Views expressed are personal.
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