tl;dr
We wrote to the Hon’ble Chief Minister and Home Minister of the Government of Maharashtra worried by a series of criminal prosecutions against social media users which created a chilling effect on their right to freedom of speech and expression. Our main recommendation was to constitute a committee headed by a retired Supreme Court Judge to create a draft Standard Operating Procedure (SOP) for police departments across Maharashtra for any criminal cases based on studying judicial precedent.
Maharashtra has set a worrying trend
The State of Maharashtra, especially the city of Mumbai is the centre of the Indian entertainment industry and the cultural captial of India. This has led to enormous cultural and economic benefits for all of us across India and the world. However, a worrying trend has emerged where individuals are being arbitrarily targeted for online speech. This not only curbs their freedom of speech but also has a chilling effect on their creative expression which is the bedrock of any creative industry.
This trend extends across the political spectrum and while individual instances are distinguished on facts and severity, it can be seen specifically in two instances which occurred in the last month:
1. Stand-up comics have been threatened with legal prosecution for jokes or statements of anguish around public development projects such as those emerging from statements attributed to the comic artist Agrima Joshua as reported in the Hindustan Times on July 13, 2020.
2. When a social media user, namely Sameet Thakkar reportedly tweeted, “Baby Penguin” to direct humour towards the Shri Aditya Thackeray, Hon’ble Cabinet Minister of Tourism and Environment, he was booked under provisions of the Information Technology Act and the Indian Penal Code. This has been reported in The Wire on July 16, 2020.
To be clear, these instances are not wholly novel. There have been prosecutions of social media users, or threats of arbitrary legal action in the past. For instance, social media user Ajay Hatewar was prosecuted in 2015 for tweeting a picture of the Chief Minister at that time on a Yacht. While such actions may be insensitive, they are clearly not illegal and threats of prosecution often emerge from an incorrect application of penal provisions. These are quite often at variance with established precedents of the Hon’ble High Court of Bombay and the Supreme Court of India.
Our recommendation: Follow existing judicial precedent to avoid arbitrariness in prosecution
As an actionable measure, we suggest the constitution of a committee to create a draft Standard Operating Procedure (SOP) for police departments across Maharashtra for any criminal cases based on studying judicial precedent. Our recommendations on this include:
- This committee may be headed by a retired Supreme Court Judge who can adapt the precedent that we have laid down above into the SOP.
- The committee should also consist of members from the legal profession, digital rights organisations, academics on free speech as well as representatives. There may be added benefits in housing this exercise in prestigious Maharashtra based legal institutions such as Government Law College, Mumbai who can provide support and assistance to the committee.
- The committee should aim to create a draft SOP which reduces the prevailing arbitrariness when it comes to criminal prosecution for online speech and prescribing uniform standards which may provide adequate notice to social media users and police departments. A draft of this SOP may be put to public consultation and then be made publicly available on finalisation.
Why is this necessary to be done now?
In the past, we have written to the Mumbai Police and the Maharashtra Home Department for a Social Media Regulation which we addressed through a Representation bearing reference number IFF/2020/137. Such actions not only are violative of the fundamental rights of residents within Maharashtra and Mumbai, but also deeply counterproductive. They threaten creativity and the productive values of thought, expression and creativity as being promoted by the State Government. It will over time cause a massive chilling effect and also have economic impacts.
These actions in recent times have become more concerning for two clear reasons for which a break from the past in terms of such arbitrary prosecution is necessary. First, Maharashtra has one of the highest numbers of tele connectivity and internet access across India (106 connections per 100 people as per TRAI data dated April, 2020). This means many people are active users of social media and they are at risk of prosecution. Second, many such users lack actual notice or legal literacy to understand the expanse of their fundamental right to free expression and the threshold of reasonable restrictions. This more often applies to complainants who approach police departments urging them to initiate criminal proceedings.
Thus, it is important that arbitrariness in terms of criminal prosecution for online speech be curbed. This can only be done by following existing legal precedents and creating a SOP which can be followed during such prosecutions as suggested in our recommendations above. It will help reduce frivlous complaints that threaten social media creators, activists and the large number of social media users in Maharashtra.