Even though the Supreme Court ruled Section 66A of the IT Act unconstitutional, citizens continue to be arrested for alleged objectionable and derogatory posts on various social media platforms, especially Facebook, under other sections of the Act and the Indian Penal Code (IPC). In the latest case, last week, two men have been arrested in Ballia, Uttar Pradesh (about 140 km east of Varanasi) for posting a video on Facebook and sharing the same on WhatsApp, with alleged derogatory remarks against the Prime Minister, UP Chief Minister and Hindu deities, reports The Wire.
The report mentions that the case has been booked under Section 295A of the IPC, which pertains to “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”, and the IT Act. In all, four people have been booked, but only two have been arrested thus far.
This flagrant misuse of power is not restricted to one part of this country either. In October last year, a little over three months after a 17-year old boy was arrested for sharing an allegedly derogatory Facebook post, two men in Balurghat (about 400 km from Kolkata in North Bengal) were arrested for criticising the police over the sorry state of traffic blockades during the Durga Puja festivities, and the lack of availability of public transportation.
What’s really worrying is that unlike Facebook, WhatsApp isn’t a public facing platform, yet the number of arrests due to sharing content deemed objectionable on the messaging platform has also been on the rise.
- In March 2016, Patrika journalist Prabhat Singh had been arrested under Section 297 of the Indian Penal Code and Section 67 of the IT Act (circulating obscene material) for allegedly making confrontational comments against some members of Samajik Ekta Manch on WhatsApp.
- Around the same time, two men were arrested in Khargone, Madhya Pradesh for sharing a morphed image of Rashtriya Swayamsevak Sangh (RSS) chief Mohan Bhagwat on WhatsApp and Facebook. They were also booked under Section 67 of the IT Act, as well as Section 505(2) of the IPC.
- And back in October 2015, an administrator of a WhatsApp group and three others were arrested in Latur, Maharashtra for sharing videos of cow slaughtering and criticizing Prime Minister Narendra Modi. In this case too, Section 67 of the IT Act was used.
It needs to be pointed out that, since a WhatsApp group administrator doesn’t really have much control over the content being shared, Section 79 of the IT Act, which gives them some immunity from the law as intermediaries, could have been used. However, that’s not to say that the arrest(s) were correct in the first place.
Note that WhatsApp is working towards giving more power to administrators of groups, which might make them more vulnerable to such arrests. Section 79 of the IT Act protects intermediaries, such as administrators of Whatsapp groups, on the grounds that they have no “actual knowledge” of the content. However, giving WhatsApp admins the power to move to a restricted mode, and allowing them the ability to control the posting of content on a group, removes the safeguard put in place.