It’s deja vu all over again.

Mumbai Police has apparently registered a First Information Report against comedy group All India Bakchod, after they tweeted a photo of Indian Prime Minister Narendra Modi (of the BJP) with a Snapchat dog filter. This is a little over a year and a month after an FIR was also registered against AIB founder Tanmay Bhat, after he posted a Snapchat video parodying playback singer Lata Mangeshkar and cricketer Sachin Tendulkar.

Mumbai Police apparently forwarded a twitter based complaint made by Reetesh Maheshwari to its “cyber police station”.

AIB deleted the tweet, and then had to defend deleting that tweet, especially against representatives of the Congress.

HT Media reports that the FIR has been registered as per “Section 500 (defamation) of IPC” and Section 67 of the IT Act, at the cyber police station at Bandra-Kurla Complex. Some points to note:

1. This one is trickier than the last one: The last instance involved parodying two well known people, and is an act of parody, by poking fun at them. I’m not sure if using a dog filter on anyone is an act of parody, irreverent as it might be, but they did appear to be poking fun (the first half of the image, and the tag #wanderlust) at the PM’s foreign trips.

2. Who should file the case? Section 500 of the Indian Penal code states:

500. Punishment for defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

I checked with a lawyer, and a criminal defamation case can be filed by anyone, even if they aren’t the person being defamed. That is surprising and leaves the law open to abuse. India is one of the few countries in the world where Defamation is a criminal offence, and it shouldn’t be. The Mumbai Police should be registering a case only if a complaint comes from Narendra Modi, given that he is the affected party here.

3. Obscene? Section 67 of the IT Act states:

Punishment for publishing or transmitting obscene material in electronic form. -Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.

Either the news reports suggesting that the case has been filed under Section 67 of the IT Act are incorrect, or there’s something seriously flawed with the legal opinion that the Mumbai Police has received. Unless they found the idea of a comic’s representation of puppy’s naked ears and nose being transposed on a photograph obscene.

4. On what grounds can offensive speech be restricted? As I mentioned the last time I wrote about AIB and Snapchat,  the right to offend is a part of free speech. The Supreme Court judgment on Section 66A interprets restrictions on free speech (read it here), and when they are applicable:

This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.”

In fact, the Mumbai Police’s action may be unconstitutional. From the 66A judgment from the Supreme Court:

Written words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of view”. Further, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves.

As the Supreme Court points out, being grossly offensive is not an offence under the Indian Penal Code.

The reason we need a reform of defamation laws is quite simple:

We’re in a country where everything you say will offend at least someone, somewhere. One of these days, they’ll come for you.