Criminalizing tweeting is unconstitutional
No other enactment like Penal Code or Criminal Procedure Code gave so much discretionary power to the investigating officers in any country.
Personal liberty can be deprived only according to procedure established by law, says MADABHUSHI SRIDHAR. Pix: Ravi Srinivasan
If anyone ‘tweets’ or comments against politically powerful Congress rulers or their sons, the law will quickly take its course, and defamation becomes a more serious crime than ‘terrorist’ activity. A fax or email message to the IG of Police from Delhi, was enough to send Ravi Srinivasan, an activist of the ‘India Against Corruption’ group and a trader, to jail for making a critical remark that son of Union Minister had amassed more wealth than Robert Vadra.
In fact and law, this comment may or may not be defamatory. Even if it is defamatory, it could be a civil wrong and may not be proved as criminal wrong for it has to pass the vigorous test of malice in trial court. Assuming that it could be considered as criminal defamation, there is still a possibility for Srinivasan to escape. If Srinivasan could prove it as ‘truth’he would be certainly relieved of the criminal charge of defamation as per law. Exception 1 under Section 499 of Indian Penal Code says truth could be a valid defence for making a defamatory remark.
It is relevant in this context to note that Mr Paul Chamber’s conviction for tweeting a joke about blasting an Airport was reversed by the High Court in UK on July 27, 2012. It was alleged that when he found that Robin Hood Airport in South Yorkshire was closed because of snow, because he was expecting eagerly to see his girlfriend he tweeted in some frustration, “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”. He was surprised that this silly joke was taken seriously and led to his conviction and sentencing for a couple of years of jail.
The Lord Chief Justice, Lord Judge, sitting with Mr Justice Owen and Mr Justice Griffith Williams, said: "We have concluded that, on an objective assessment, the decision of the crown court that this 'tweet' constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed." It was considered as a great success to freedom of expression, that such a comment was not ‘menacing’.
As per the amended Code of Criminal Procedure, an accused, who is charged with an offence that could lead to imprisonment term of less than seven years, should not be immediately arrested. Instead, he should be served with a notice of ‘presence’ before the investigating officer or trying court on a scheduled date. If he responds positively and absents himself, he cannot be arrested. Section 66A of Information Technology Act prescribed three year imprisonment if a charge is proved. Assuming charges of defamation under IPC against Ravindran are proved, he could be sent to jail only for two years, which again, could be just a possibility. Then why is Srinivasan is arrested?
A cabinet minister in the Andhra Pradesh Government was not be arrested even after the CBI found him one of the prime accused in a corruption case, whereas on the complaint that a Union Minister’s son was commented against, a tweeter was sent to jail. Without prima facie establishment of allegation in primary investigation, and in the absence of possibility of accused escaping from the reach of police, such accused should not be arrested. It is a constitutional right of a person not to be arrested without due process, which is essential part of right to life under article 21 of our Constitution. Personal liberty can be deprived only according to procedure established by law.
Srinivasan’s personal liberty was deprived without following the procedure established by Code of Criminal Procedure. These provisions were not just prescribed by the law, but were established as justified processes all over democratic world, recommended by Law Commission of India based on several judicial pronouncements prescribing guidelines against misuse of this lethal power of arrest in the hands of police. In addition to substantive law provisions of ‘crime’, the above prescribed procedural principles are also very significant in securing due process for one accused of criminal charges.
Is ITA more terrible that IPC?
The Information Technology Act 2000 especially after it is amended in 2008, is proving itself to be more terrible law than Indian Penal Code, with possibility of abuse by the rulers or ruling party. As these incidents of misuse of high discretionary power are increasing, Macaulay and other British law makers 150 years ago (makers of Indian Penal Code 1860) are now appearing to be more ‘liberal’ than the present lawmakers of Independent India. Unless writings or other expressions are proved to be deliberately intended to be defamatory the concerned person cannot be jailed as per the 1860 legislation, Penal Code. But if messages are ‘grossly offensive’ or have ‘menacing character’ or even cause ‘annoyance or inconvenience’ the messenger can be immediately prosecuted and punished with imprisonment up to three years according to the ITA.
All these expressions are undefined. Who will decide whether a particular comment is ‘annoying’ or menacing etc? And what exactly does ‘annoying’ mean? What is ‘offensive’ and ‘grossly offensive’? This unguided power is given to the investigating officer by the Information Technology Act. No other enactment like Penal Code or Criminal Procedure Code gave such a high discretionary power to the investigating officers in any country. Even the anti-terrorism laws did not keep such a wide power in the hands of armed forces, as that could be prone to be misused generally. For these reasons Section 66 A of Information Technology Act 2000 could be unconstitutional. Srinivasan’s lawyers should challenge the constitutionality of this draconian section which could have a chilling effect among the ordinary citizens exercising their fundamental right to freedom of speech and expression under Article 19(1)(a) of Indian Constitution.
The Indian Penal Code prescribes punishment for only a deliberate defamation only if actual malice is proved. Unless the malicious intent of Srinivasan to deliberately defame Chidambaram’s son is prima facie established in preliminary enquiry, he should not be treated as an accused also. Even if proved, he cannot be arrested under amended code of criminal procedure. In this context it is relevant to note that many democratic countries like US, UK, Canada and Australia have decriminalized defamation and thus it is no more a crime to defame somebody. Defamation remains only a civil wrong.
In the interests of democracy and free expression, defamation should not be a crime in India and it is high time for lovers of democracy to agitate for repeal of Section 499 from criminal law. If Section 499 cannot stand on the statute book of crimes, it is unimaginable that a section that provides to punish a commentator for three years alleging that he caused ‘annoyance or inconvenience or defamation’ can be allowed as a constitutionally acceptable ‘crime’. There is another inequality among the penal provisions of these two criminal laws. If IPC prescribed two years of imprisonment with or without penalty for criminal defamation, the IT Act in section 66A has liberally prescribed three years of imprisonment. Why this disparity? How and on what grounds commenting on cyberspace could be considered different from expressing in physical life?
Media is now more than an entertainment industry and it is, unfortunately, turning into ‘media’ for sending people to jail just for writing or commenting.
(Madabhushi Sridhar is Professor and Coordinator, Center for Media Law and Public Policy, NALSAR University of Law Hyderabad)
Subscribe To The Newsletter