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FOEX Live: May 26-27, 2014
https://cis-india.org/internet-governance/blog/foex-live-may-26-27-2014
<b>A selection of news from across India implicating online freedom of expression and use of digital technology</b>
<p>Media reports across India are focusing on the new government and its Cabinet portfolios. In the midst of the celebration of and grief over the regime change, we found many reports indicating that civil society is wary of the new government’s stance towards Internet freedoms.<span> </span></p>
<p><i><span style="text-decoration: underline;">Andhra Pradesh</span></i>:</p>
<p>Andhra MLA and All India Majlis-e-Ittihad ul-Muslimin member Akbaruddin Owaisi <a href="http://www.asianage.com/mumbai/court-summons-owaisi-312">has been summoned to appear</a> before a Kurla magistrate’s court on grounds of alleged hate speech and intention to harm harmony of Hinduism and Islam. Complainant Gulam Hussain Khan saw an online video of a December 2012 speech by Owaisi and filed a private complaint with the court. “<i>I am prima facie satisfied that it disclosed an offence punishable under Section(s) 153A and 295A of the Indian Penal Code</i>,” the Metropolitan Magistrate said.</p>
<p><i><span style="text-decoration: underline;">Goa</span></i>:</p>
<p>A Goa Sessions Judge <a href="http://timesofindia.indiatimes.com/city/goa/Comments-of-Devu-Chodankar-prima-facie-offensive-Judge/articleshow/35612485.cms">has dismissed</a> shipbuilding diploma engineer Devu Chodankar’s application for anticipatory bail. On the basis of an April 26 complaint by CII state president Atul Pai Kane, Goa cybercrime cell registered a case against Chodankar for allegedly posting matter on a Facebook group with the intention of promoting enmity between religious groups in view of the 2014 general elections. The Judge noted, <i>inter alia</i>, that Sections 153A and 295A of the Indian Penal Code were attracted, and that it is necessary to find out whether, on the Internet, “<i>there is any other material which could be considered as offensive or could create hatred among different classes of citizens of India</i>”.</p>
<p><i><span style="text-decoration: underline;">Karnataka</span></i>:</p>
<p>Syed Waqas, an MBA student from Bhatkal pursuing an internship in Bangalore, was <a href="http://www.thehindu.com/news/national/karnataka/student-from-bhatkal-held-for-antimodi-mms/article6047440.ece">picked up for questioning</a> along with four of his friends after Belgaum social activist Jayant Tinaikar filed a complaint. The cause of the complaint was a MMS, allegedly derogatory to Prime Minister Narendra Modi. After interrogation, the Khanapur (Belgaum) police let Waqas off on the ground that Waqas was <a href="http://www.thehindu.com/news/national/karnataka/waqas-let-off-after-questioning/article6052077.ece">not the originator</a> of the MMS, and that Mr. Tinaikar had <a href="http://www.thehindu.com/news/national/karnataka/mms-case-complainant-gave-incorrect-number/article6052079.ece">provided an incorrect mobile phone number</a>.</p>
<p>In another part of the country, <a href="https://twitter.com/digvijaya_28/status/470755694488977408">Digvijaya Singh is vocal</a> about Indian police’s zealous policing of anti-Modi comments, while they were <a href="http://www.sahilonline.org/english/newsDetails.php?cid=3&nid=24840">all but visible</a> when former Prime Minister Dr. Manmohan Singh was the target of abusive remarks.</p>
<p><i><span style="text-decoration: underline;">Kerala</span></i>:</p>
<p>The Anti-Piracy Cell of Kerala Police <a href="http://www.thehindu.com/news/national/kerala/crackdown-on-sale-of-smut/article6049136.ece">plans to target</a> those uploading pornographic content on to the Internet and its sale through memory cards. A circular to this effect has been issued to all police stations in the state, and civil society cooperation is requested.<span> </span></p>
<p>In other news, Ernakulam MLA Hibi Eden <a href="http://www.thehindu.com/news/cities/Kochi/your-mla-is-just-a-phone-call-away/article6039644.ece">inaugurated “Hibi on Call”</a>, a public outreach programme that allows constituents to reach the MLA directly. A call on 1860 425 1199 registers complaints.</p>
<p><i><span style="text-decoration: underline;">Maharashtra</span></i><span>:</span></p>
<p>Mumbai police are investigating <a href="http://www.thehindu.com/news/cities/mumbai/mumbai-police-seeks-explanation-on-drone-pizza-delivery/article6043644.ece">pizza delivery by an unmanned drone</a>, which they consider a security threat.</p>
<p><i><span style="text-decoration: underline;">Tamil Nadu</span></i><span>:</span></p>
<p>Small and home-run businesses in Chennai <a href="http://www.thehindu.com/news/cities/chennai/with-technology-small-businesses-have-big-reach/article6050497.ece?homepage=true">are flourishing</a> with the help of Whatsapp and Facebook: Mohammed Gani helps his customers match bangles with Whatsapp images, Ayeesha Riaz and Bhargavii Mani send cakes and portraits to Facebook-initiated customers. Even doctors <a href="http://www.thehindu.com/news/cities/chennai/doctors-on-call-in-social-media-platforms-too/article5951628.ece">spread</a> information and awareness using Facebook. In Madurai, you can <a href="http://www.thehindu.com/news/cities/Madurai/groceries-just-a-click-away/article6052163.ece">buy groceries</a> online, too.</p>
<p><i><span style="text-decoration: underline;">Opinion</span></i>:</p>
<p>Chethan Kumar fears that Indian cyberspace <a href="http://timesofindia.indiatimes.com/city/bangalore/Online-free-speech-hangs-by-a-thread/articleshow/35624481.cms">is strangling freedom of expression</a> through the continued use of the ‘infamous’ <a href="https://cis-india.org/internet-governance/resources/section-66A-information-technology-act">Section 66A</a> of the Information Technology Act, 2000 (as amended in 2008). Sunil Garodia <a href="http://www.theindianrepublic.com/tbp/obnoxious-sec-66a-it-act-must-go-100037442.html">expresses similar concerns</a>, noting a number of arrests made under Section 66A.</p>
<p>However, Ankan Bose has a different take; <a href="http://indiaspeaksnow.com/freedom-speech-cant-interpreted-freedom-threaten/">he believes</a> there is a thin but clear line between freedom of expression and a ‘freedom to threaten’, and believes Devu Chodankar and Syed Waqar may have crossed that line. For more on Section 66A, please redirect <a href="https://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act">here</a>.</p>
<p>While Nikhil Pahwa <a href="http://www.medianama.com/2014/05/223-ravi-shankar-prasad-telecom/">is cautious of the new government’s stance</a> towards Internet freedoms, given the (as yet) mixed signals of its ministers, Shaili Chopra <a href="http://www.dnaindia.com/analysis/standpoint-from-namo-to-pmo-narendra-modi-and-the-political-power-of-social-media-1991493">ruminates</a> on the new government’s potential dive into a “digital mutiny and communications revolution” and wonders about Modi’s social media management strategy. For <i>Kashmir Times</i> reader Hardev Singh, even Kejriwal’s arrest for allegedly defaming Nitin Gadkari <a href="http://www.kashmirtimes.com/newsdet.aspx?q=32715">will lead to a chilling effect</a> on freedom of expression.</p>
<p>Elsewhere, the <i><a href="http://www.hindustantimes.com/india-news/allaboutnarendramodi/narendra-modi-takes-oath-as-pm-what-ht-readers-want-from-new-prime-minister/article1-1223119.aspx">Hindustan Times is intent</a></i> on letting Prime Minister Narendra Modi know that his citizens demand their freedom of speech and expression. Civil society and media all over India <a href="http://exitopinionpollsindia.blogspot.in/2014/05/as-freedom-of-expression-in-india-is.html">express their concerns</a> for their freedom of expression in light of the new government.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/foex-live-may-26-27-2014'>https://cis-india.org/internet-governance/blog/foex-live-may-26-27-2014</a>
</p>
No publishergeethaIPCSocial MediaFreedom of Speech and ExpressionFOEX LiveIT ActTransparency, Politics2014-05-27T12:42:51ZBlog EntryArbitrary Arrests for Comment on Bal Thackeray's Death
https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A
<b>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.</b>
<h2 id="facts-of-the-case">Facts of the case</h2>
<p>This morning, there was <a href="http://www.mumbaimirror.com/article/2/2012111920121119043152921e12f57e1/In-Palghar-cops-book-21yearold-for-FB-post.html">a short report in the Mumbai Mirror</a> about two girls having been arrested for comments one of them made, and the other 'liked', on Facebook about Bal Thackeray:</p>
<blockquote>
<p>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.</p>
<p>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.</p>
<p>“Her comment said people like Thackeray are born and die daily and one should not observe a bandh for that,” said PI Uttam Sonawane.</p>
</blockquote>
<h2 id="what-provisions-of-law-were-used">What provisions of law were used?</h2>
<p>There's a small mistake in Mumbai Mirror's reportage as there is no section "64(a)"<sup><a class="footnoteRef" href="#fn1" id="fnref1">1</a></sup> in the Information Technology (IT) Act, nor a section "295(a)" in the Indian Penal Code (IPC). They must have meant <a href="https://cis-india.org/internet-governance/resources/section-295a-indian-penal-code">section 295A of the IPC</a> ("outraging religious feelings of any class") and <a href="https://cis-india.org/internet-governance/resources/section-66A-information-technology-act">section 66A of the IT Act</a> ("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.)</p>
<p>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.<sup><a class="footnoteRef" href="#fn2" id="fnref2">2</a></sup> Section 66A of the IT Act is cognizable and bailable.</p>
<p>Update: Some news sources claim that <a href="http://www.vakilno1.com/bareacts/indianpenalcode/s505.htm">section 505(2) of the IPC</a> ("Statements creating or promoting enmity, hatred or ill-will between classes") has also been invoked.</p>
<h2 id="was-the-law-misapplied">Was the law misapplied?</h2>
<p>This is clearly a case of misapplication of s.295A of the IPC.<sup><a class="footnoteRef" href="#fn3" id="fnref3">3</a></sup> This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine's book <i>Shivaji: Hindu King in Islamic India</i> 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.</p>
<p>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).<sup><a class="footnoteRef" href="#fn4" id="fnref4">4</a></sup> 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 <b>and expression</b>', so even non-verbal expression is protection.</p>
<h2 id="role-of-bad-law-and-the-police">Role of bad law and the police</h2>
<p>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 <a href="http://www.hindustantimes.com/India-news/NewDelhi/Katju-demands-action-against-Mumbai-cops-for-arresting-woman/Article1-961478.aspx">demanding that such police officers should be punished</a>.</p>
<h2 id="rule-of-law">Rule of law</h2>
<p>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?<sup><a class="footnoteRef" href="#fn5" id="fnref5">5</a></sup></p>
<h2 id="social-media-regulation-vs.-suppression-of-freedom-of-speech-and-expression">Social Media Regulation vs. Suppression of Freedom of Speech and Expression</h2>
<p>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.</p>
<p>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.</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1">
<p>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.<a href="#fnref1">↩</a></p>
</li>
<li id="fn2">
<p>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.<a href="#fnref2">↩</a></p>
</li>
<li id="fn3">
<p>Section 295A of the IPC has been held not to be unconstitutional. The first case to <a href="http://ibnlive.in.com/generalnewsfeed/news/pil-to-declare-sec-66a-as-unconstitutional-filed/1111666.html">challenge the constitutionality of section 66A of the IT Act</a> was filed recently in front of the Madurai bench the Madras High Court.)<a href="#fnref3">↩</a></p>
</li>
<li id="fn4">
<p>One can imagine an exceptional case where such an act could potentially be defamatory, but that is clearly exceptional.<a href="#fnref4">↩</a></p>
</li>
<li id="fn5">
<p>This is entirely apart from the question of how the Shiv Sena singled in on Shaheen Dhada's Facebook comment.<a href="#fnref5">↩</a></p>
</li>
</ol>
<hr />
<p>This blog entry has been re-posted in the following places</p>
<ul>
<li><a class="external-link" href="http://www.outlookindia.com/article.aspx?283033">Outlook</a> (November 19, 2012).</li>
<li><a class="external-link" href="http://kafila.org/2012/11/19/social-media-regulation-vs-suppression-of-freedom-of-speech-pranesh-prakash/">KAFILA</a> (November 19, 2012).</li>
</ul>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A'>https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A</a>
</p>
No publisherpraneshIPCIT ActFreedom of Speech and ExpressionFeaturedFacebookCensorship2013-01-02T03:42:37ZBlog Entry