How a WhatsApp message can get you arrested

Eighteen-year-old Zakir Ali Tyagi was just kidding when he asked, on Facebook, exactly how the river Ganga was a “living entity”. He also went on to discuss the BJP’s Ram Mandir plans. For these random comments on Facebook, the Muzaffarnagar teen was made to spend 42 days in jail, paying bribes even to use the toilet. He was picked up by the police this April, and booked under Section 420 (cheating) of the IPC and Section 66 of the IT Act. He was brutally beaten, and called a terrorist. By the time he emerged from jail, he had lost his job at a nearby steel plant.

Across Indian states, citizens like Tyagi are being picked up by the police for unguarded comments on 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 “computer-related 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 worded enough 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 disre

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gard 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. These include 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 the IT Act, 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 not inherently deserve criminal sanction. Even rumours are not illegal by themselves, the CrPC should kick in only in instances where they might incite violence or have other criminal implications.

WhatsApp is where these tensions are strongest. Given that the technology can be used to make trouble on a wide scale, the police has good reason to keep an eye on the platform. But increasingly, WhatsApp administrators have been booked even for harmless remarks. “There’s a trend of using Section 144 of the CrPC, which applies to unlawful assemblies, to WhatsApp discussions,” says Gupta. Recall the Indore collector who invoked it to deter any conversation about demonetisation, or the Varanasi DM who said that any false content on a WhatsApp group was grounds for arrest. “This is a threat, rather than a fair legal warning,” says Gupta.

“Of course, these charges will not hold 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 the laws that govern the offline world. “This is the crossroads that the world is at, different jurisdictions are grappling with these questions,” he says.

These social media arrests are just symptomatic of a larger invasion of free speech, in Sibal’s view. “Look at the way everyone is outraging about the movie Padmavati without anyone having seen it. It’s the same with the trigger-happy criminal justice system,” he says.

Still, these arrests create a chilling effect on 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.

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