Across Indian states, citizens like Tyagi are being picked up by the police for unguardedcommentson social media, and the arbitrariness of these arrests has created a climate of anxiety. In most cases to hit the news, those charged have been ordinary people, without the clout to incite mass violence. On November 2 this year, Meerut-based journalist Afghan Soni was charged with defamation and “computerrelated offences” (Section 66 of the IT Act) for posting a derogatory video of Narendra Modi. What was the “offensive” video? Modi asking a rally about “achhe din”, and getting his response not from a crowd of people, but a herd of goats.
Social media arrests are not new, and nor are they a uniquely Indian form of repression. The UPA-era Section 66A of the IT Act, scrapped by the Supreme Court in 2015, was broadly wordedenough to book you if you caused annoyance, inconvenience, insult or injury online. In 2012 and 2013, a girl from Palghar, Maharashtra was arrested for criticising Bal Thackeray’s state funeral on Facebook, another girl for merely “liking” that comment; a professor from Kolkata was arrested for forwarding a cartoon about Mamata Banerjee; as was a man who tweeted about Karthi Chidambaram’s disproportionate wealth. But now, even though Section 66A is gone, the muzzling of speech continues unabated. And perhaps more than political dispensation, this is about the misplaced zeal of the criminal justice system, its general disregard for free speech, and its hypersensitivity to speech that irritates the political establishment.
India, like every other country in the world, places reasonable fetters on free expression. Theseinclude a threat to public order, dangerously stirring up religious sensitivities, caste slurs, defamation, child pornography, and so on. “But the real problem is the misuse of these legal provisions by police officials going overboard,” says N Ramachandran, a former DGP and president of the Indian Police Foundation. “Rather than rushing to arrest, the police should weigh the culpability and potential impact impartially, with utmost caution,” he says.
Other sections of theITAct, including clauses on obscenity and morphing, are being used to arrest people, says lawyer and internet freedom advocate Apar Gupta. The morphing of images may be a concern when women are misrepresented, but “by itself, a morphed image in a political caricature or piece of satire is not an illegal or criminal act”, he says. Similarly, lying and cussing are human activities that also exist online; they do notinherently deserve criminal sanction. Even rumours are not illegal by themselves, the CrPC should kick in only in instances where they might incite violenceor have other criminal implications.
“Of course, thesechargeswill nothold in a court of law. But the person booked has to endure the system for a while, and deal with the harassment,” says lawyer Akhil Sibal. In his view, the internet is a uniquely liberating space, one that is harder to regulate, but it cannot be exempt from thelawsthat governtheoffline world. “This is the crossroads that the world is at, different jurisdictions are grappling with these questions,” he says.
Still, these arrests create a chilling effecton speech, says Gupta. The likelihood of someone, somewhere, taking legal action constrains you to watch your words more than necessary. Rather than a lively, democratic public sphere, we could end up with the hushed, wary conversations of a police state.