center | Guidelines Against Peremptory Arrest for Social Media Content
A citizen languishing in jail for a minor offence, such an irresponsible or offensive social media post is a stain on our justice system and the sanctity of the republic itself
A citizen languishing in jail for a minor offense such as an irresponsible or offensive post on social media is a stain on our justice system.
In the first part of this article, we have seen how well aware the Supreme Court is of the numerous cases of misuse of the existing sections of the Indian Penal Code and misapplication of the deleted parts of Section 66A of information technology law when it comes to the harassment of ordinary citizens. Many are thrown in jail for weeks, without bail or trial, for so-called offenses against political leaders that seem relatively minor and amount more to insults than threats to public order or the safety of others.
It would appear that in such cases the law is misused or misapplied more often than not to teach the offender a lesson rather than for a greater public good. It is as if the political dispensation in power wishes to send the message, “How dare you criticize or denigrate our ‘great leader.’ No punishment is severe enough for those who are guilty of this sin. Go rot in jail until we let you out! Can any sensible citizen doubt that such an attitude is a parody of the fundamental right to freedom of expression or to the equality of all citizens before the law?
Moreover, isn’t it a stain on the republic when its citizens are incarcerated for insulting political leaders rather than for serious crimes? The very mechanism of law and order, paid for by our taxes and the revenues of the land, is directed against us. Our leaders are elected to serve us. They occupy the positions they occupy at the pleasure of the electorate. How, then, can criticizing them become such a serious crime that citizens have to spend weeks in jail? What justification can there be for the trauma they and their families are going through?
From the above and similar observations emanating, as we have shown before, from the highest court in the land, we might derive some salutary directions, which, with necessary modifications, may be sent to every police force. Thana in the country.
When receiving a complaint of offensive content on social media, the following procedures should be adopted before and after the arrest of the person concerned:
Before the arrest:
1) The police must carry out a preliminary investigation to verify that a serious offense has indeed been committed. If there is insufficient prima facie evidence of such a violation, no FIR should be registered, let alone an arrest made.
2) If, in the opinion of the investigating officer, an offense has actually been committed, the offending position must be ordered by the individual. If the person does so, no further action should be taken.
3) If the individual refuses, the social media platform may be ordered to remove the content.
4) The individual may be interrogated or summoned to the police station. The complaint against the offensive material must be clearly communicated. If the person retracts and/or apologizes in writing, no further action should be taken.
5) If the person does not recant and apologise, the police must give them a show cause notice to which they may be given a reasonable time to respond.
6) If the answer is not satisfactory or if the person is a recidivist, he may be placed in police custody.
After the arrest:
1) The arrested person must be brought before a magistrate within 48 hours.
2) Where possible, bail should be set immediately and the person released immediately.
3) The person himself cannot be interpreted as posing a threat to public security after the offending post has already been abolished. Therefore, under no circumstances should he be kept in prison for more than a week.
4) A separate branch to expedite tracking of offenders on social media can be set up for speedy trial and settlement of cases. Such a bench can even meet online and can be made up of prominent citizens appointed judges/members of a citizens’ jury for this sole purpose.
5) Works of art, cartoons, poems and other creative material containing satire, irony or other forms of humor and wit should be exempted from the provisions of laws which hold the citizens for encouraging enmity between communities, unless the offense is serious. and serious.
6) If individuals or parties are not clearly identifiable or clearly defamed, citizens should not be punished. Criticizing or questioning the actions of elected officials and leaders is a right of every citizen provided that it is not deliberately and manifestly false, malicious, prejudicial to the safety of others, etc.
With over 622 million active internet users in India, we are soon entering the era of digital democracy. Citizens’ rights to speak out and criticize politicians cannot be restricted by narrow, 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. Excessive use of the judiciary to protect the reputation of politicians is therefore an excess of the law against ordinary citizens.
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As such, it constitutes not only a restriction of our rights, but also a restriction of democracy. A citizen languishing in jail for a minor offence, such an irresponsible or offensive post on social media is a stain on our justice system and the sanctity of the republic itself. This makes us an intolerant and authoritarian society, unable to face the slightest criticism. The Supreme Court may therefore, in its wisdom, consider issuing the kind of guidelines suggested in this article, in order to protect 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 in New Delhi. The opinions expressed are personal.
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