While this week begins with Narendra Modi being sworn in as the Prime Minister of India, the preceding weekend have witnessed two incidents of arrest:

1. In Bangalore, a 24 year old MBA student has been arrested and booked under “Section 505 of the IPC for issuing statements amounting to public mischief with intent to cause fear or alarm” and Section 66 A of IT Act, The Times of India reported. The complaint was filed by Jayant Tinaikar in Belgaum, who had received an offensive message on Whatapp on May 16, which was eventually sourced to Sayed Waqar, who was arrested.

The Whatsapp message, according to Bangalore Mirror, showed the final rites of Modi being performed, attended by L K Advani, Rajnath Singh, Sushma Swaraj, Baba Ramdev, Maneka Gandhi and Varun Gandhi, with the caption “Na Jeet Paye Jhooton Ka Sardar — Ab Ki Baar Antim Sanskar (A false leader will never win, this time it’s final rites).”

2. Devu Chodankar, a shipbuilding diploma holder working in Mumbai, was arrested for posting on the Goa+ Facebook Group, that if elected to power, Modi would unleash a ‘holocaust’, reports FirstPost. This post was deleted subsequently, but an FIR filed by former CII Goa Chairman Atul Pai Kane with the Cybercrime Cell, under sections sections 153(A), 295(A) of the Indian Penal Code (IPC) and section 125 of the People’s Representation Act, and Section 66-A of the IT Act. A court in Goa has denied Chodankar anticipatory bail, as per the Times of India.

Our Take

Laws in India are vague, and arbitrary enough to be applied selectively, and “intent to cause fear or alarm” is as vague as it gets. Several laws are applicable – Section 66-A of the IT Act is just one of them, and even if that is made more moderate (it still needs to be junked), and the police is at liberty to throw the rule-book at you if it wants to take you down, and you’re left to the mercy of the punishing (lack of ) pace of India’s overburdened judicial system. A sample.

India’s constitution is a source of these problems, and lawmakers justify these provisions using Article 19, which stipulates that laws can impose reasonable restrictions under fairly vaguely defined circumstances: in the “interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” (source)

Remember that policing is a state subject, so the state governments have to address this issue, and there’s not much that the central government can do about it.

Secondly, we’ve just been through a fairly fractious election: opinions were polarised, and these clearly aren’t the only two instances of “offensive” messages sent or received, across Whatsapp, Twitter or Facebook. A friend of mine mentioned recently that he had realized that the Congress would lose badly based on the volume and variety of jokes making fun of Rahul Gandhi and the Congress that were shared (and are still being shared). That was an instance where dissent was expressed as humor, often crassly, and did a fair bit of damage to perception. Whether this was a part of the BJP’s campaign strategy is anybody’s guess, but lets not forget that the right to offend is an integral part of Freedom of Expression.

Just as with Vinay Rai’s case against various online companies during the Congress tenure, we don’t know if these instances or plaintiffs have political support or motivation.  Who can file a case is also important, and many of the clauses mentioned above (apart from defamation), lend themselves to politically motivated filings. The worst thing that could happen now is a sycophant one-upmanship, if supporters of the Congress Party (or those looking to curry favor) also file complaints with the police regarding some of those messages.

The greater worry is that these two recent cases could be the first of many, and the impact it would have. Remember two things: defamation in India is a criminal offense, and if you choose to share content, you could be held liable for its transmission. The chilling effect of this is clear and present: worried that they could be hauled up for it, you might find that people have a lower propensity to voice criticism and dissent, make fun of developments (for example, of this photo, or these quotes). How many of you began thinking twice about what you were posting on Facebook or Twitter after those two girls were arrested, when one of them questioned why the city shut down for Bal Thackeray’s funeral?

Damaging dissent contributes to the creation of a facade of consent and, for a democracy, that is dangerous.

Update: In Outlook magazine, on the issue of defamation being criminal in India.