The Kerala High Court has told a rape-accused that he may not use social media while on bail, until the investigation is over. Muhammed Shifas, who has been accused of raping a woman in Ernakulam district, has been granted bail on the condition that he to stop using social media to protect the survivor’s privacy.

The context: Shifas has been accused of raping a woman multiple times since December 2018. He had allegedly taken the woman to a resort near Cherai beach, raped her and took nude photos of her. He later used these photos to threaten her. Last month, Shifas reportedly created a Facebook page and posted the survivor’s photos on it and demanded ₹1 lakh from her to delete them. Kerala police have charged Shifas under various sections of the Indian Penal Code, the Protection of Children from Sexual Offences Act, 2012 and the Section 66(E) of the Information Technology Act.

Hearing the plea for bail, Justice P.V. Kunhikrishnan observed that the survivor’s main grievance is that Shifas had posted her pictures on Facebook. Considering these “special facts and circumstances”, he wondered why the bail not mandate that Shifas be disallowed the use of social media like “Face Book (sic), Whatsapp, Twitter, Instagram etc.” till the case is concluded.

The Court noted that it could impose any condition it considers necessary based on the facts and circumstances of a case “in the interest of justice”. It held each case was to be decided separately, but the conditions of a bail order should be reasonable and effective.

‘Heavens will not fall down’, says Court

The Court ruled that until an investigation into the crime is complete, Shifas will not be allowed to use social media websites such as Facebook, WhatsApp, Twitter and Instagram.

Heavens will not fall down if a condition is imposed in a bail order restraining the accused in a rape case in using social media, especially when it is to protect the victim girl’s privacy — Kerala high Court

The prohibition on social media use could be extended as well. The Court indicated that if a final report of the investigation requires it to take cognisance of the same, Shifas would be prohibited from using social media unto until trial is over. The Court also directed the investigating officer to inform the survivor about this condition., adding that “if any complaint in this regard is received from the victim, the investigating officer will act in accordance to law”.

A new territory in jurisprudence

This is not the first time in which bail has been granted with a gag on social media use. Earlier in May, the Allahabad High Court imposed a similar condition on senior Congress leader Sachin Choudhary until the end of the trial. Choudhary was arrested in April for holding a press conference in spite of lockdown restrictions being in place at the time. He had accused UP Chief Minister Yogi Adityanath and Prime Minister Narendra Modi of mishandling the Covid-19 pandemic.

Choudhary appealed against the condition in the High Court, which subsequently modified the bail order slightly — he would be prohibited from using social media for a period of 18 months, or till the conclusion of the trial, whichever is earlier.

In August 2020, a bench of the Madhya Pradesh High Court granted bail to an 18-year-old student only if he agreed to stay away from social media for two months. The Court told Harendra Tyagi, a high-school graduate, to submit monthly reports of his “digital detoxification”. Like Choudhary earlier, Tyagi too was in trouble for violating lockdown restrictions in Bhind  district.

In March 2020, a Delhi court granted bail to three men — Shan Mohammed, Syed Masood Ahmad and Syed Taseer Ahmed — for refusing to clear Shaheen Bagh after the nationwide lockdown was imposed. They were prohibited from posting any opinion relating to the Citizenship Amendment Act (CAA), National Population Register (NPR) or National Register of Citizens (NRC) on social media. They were also barred from speaking to the media on these issues.

In November 2019, a bench of the Madras High Court granted bail to a Jabin Charles, who had posted a morphed picture of Prime Minister Narendra Modi on Facebook, only after he agreed to stay off social media for a year. The Court told Charles that his bail would be cancelled if he was found using social media during this period.

Supreme Court sets precedent, but will examine matter

In July, Sachin Choudhary appealed to the Supreme Court against the bail condition imposed by the Allahabad High Court. He argued that it was a violation of his freedom of speech. The Court, headed by Chief Justice Sharad Arvind Bobde, upheld the High Court’s order, adding that social media “can be used by a person like a gun”. Continuing with the gun metaphor, the Court asked Choudhary what he felt was wrong with the order. “If a court can order an accused to stay away from a gun, it can similarly ask you to stay away from social media,” said Bobde.

The Court also noted that if the offences alleged against Choudhary were related to how he had used social media. It said it had seen how social media could be used to create problems.

Though it refused to entertain Choudhary’s plea, the Court ultimately said that it would lay down proper guidelines on the matter of social media. 

Meanwhile, Chaudhary’s verified Twitter account (where his name is spelled “Chaudhary”), with over 47,000 followers has been inactive since May 20, when the Allahabad High Court granted bail to him.

MediaNama’s take: Bails with gag orders on social media use could lead to crushing of dissent

Three of the cases mentioned in this story — those of Sachin Choudhary in UP, and the three men at Shaheen Bagh and Jabin Charles in Tamil Nadu —  were concerned with the expression of dissent against ruling governments. A restriction on the use of social media by these men has essentially deprived them of the right to freedom of speech, and hence the ability to criticise the government.

Also, for politicians, social media has been a tool to reach out to their supporters and the general public. A social media gag for a period of 18 months — an eternity for a politician — like the one imposed on Choudhary has the potential to end his career. Similarly, such gag orders would have equally debilitating effects on private citizens and businesses whose profession and livelihood requires their presence on social media.

Indeed, the Kerala High Court has observed in Muhammed Shifas case that each matter needs to be considered separately. And, like the Supreme Court had noted in Choudhary’s case, it isn’t unreasonable to ask that if a bail could require an accused to refrain from using a gun, could he not be refrained from using social media? However, a gun and social media are not the same thing. While it is true that social media has the power to cause harm, it is still a tool of speech, and must be treated like one.