I refer to an article which appeared in Hindustan Times recently, (Read the article here). I also refer to the article on Police action in Tamil Nadu on rumours on Jayalalithaa’s health.
The article on Jharkhand is headlined “WhatsApp admin to face action if sensitive posts shared in the group”. The news is about the Jharkhand police putting out a notice in the light of a Custodial death of a person who was arrested for posting some communally sensitive message. The Police appear to have issued a notice that action will be initiated against the Admin if he does not inform the police about posting of information considered sensitive under ITA 2008.
What we donot understand is that if a person had posted a sensitive information on a Whats App group and has been arrested and later dies in police custody, how is the WhatsApp admin be responsible for this custodial death. Also under what provisions of law in ITA 2008 does the Police intend to take action?.
By trying to cover up their custodial death problem, Police seems to be creating a panic in the WhatsApp community and diverting attention of the public.
By such actions the LEA will lose their credibility and fail to get sympathy of the larger sections of the society. They will also be open to question under the Human Rights Action.
Naavi.org had already covered the responsibilities of WhatsApp admins in great detail earlier. A link to the earlier article is available here : WhatsApp Model Admin Policy
It is however necessary to reiterate here some thoughts on the mistakes that Police are committing. Since the Government of India is also revising ITA 2000/8, they also need to take into account different view points in this regard.
It is possible that different “Experts” may have different views. It requires a nationwide debate on controversial points to arrive at the most appropriate interpretation of the law.
Unfortunately, “Law” is always an “Interpretation” of the words contained in a statute which could have been drafted in a certain set of circumstances and with certain objectives, which gets forgotten over time. Hence the “Legislative Intent” and the “Overall interest of the Community” has to be taken into account before interpreting the law.
There is no argument on the fact that if any activity is intended to create a law and order problem or commit any illegal activity, then the Police should have all the right to curb it by both preventive and punitive action. My views on this is too well known to the community to repeat here.
However, what this Circular of Jharkhand Police represents and what is happenning in Taml Nadu where more than 50 persons have been arrested for what the Police calls as “Spreading Rumours” on the health of J. Jayalalithaa are to be condemned as excesses that should be curbed.
There is however a difference between the Jharkhand-WhatsApp issue and TN-Facebook issue. WhatsApp is a closed communication group and is more like an indoor meeting. Posting a message as “Public” in a facebook page may however may be similar to making a public comment on the street corner which anybody can hear. WhatsApp posting is a “One to Many Message” where as FaceBook posting is “Publishing” though both may be called “message” loosely. One is a “private speech” and the other could be a “public speech”. Law has to distinguish the two.
Whether such “Speech” requires punitive action depends on “What is Said” and “With What intent”, “in What Context” and “With What effect”.
A street urchin wondering “Is Jayalalithaa Brain dead”? may be out of concern for her and may be in great anguish. To term it as an attempt to create law and order problem is the height of over reaction. Similarly, in the Jharkhand case, if the person has died in custody Police cannot absolve of their responsibility by suppressing public speech on why the person was arrested or the criticism of the Police there after.
The Police need to clarify both in Jharkhand and TN what followed the initial reaction expressed in Facebook or WhatsApp before the public can consider that the action was justified. But what has happened in TN is that several Facebook pages and you tube pages have been shut down and we donot really know what was the comment made by the 50 different persons which can be called an “Attempt to create unrest in the society”. In the Jharkhand case I presume that the Police want to stop public outcry on the custodial death rather than preventing communal hatred.
Further, in Jharkhand or TN if the Police fear a large scale unrest, they can shut down the Internet and call for an “Internal Emergency” so that no information goes out.
I wonder how professional are doctors giving out misleading statements and politicians making a fool of themselves in visiting the doctor and giving a medical bulletin about the patient. Suppose the statements made by the doctors and the political leaders about Jayalalithaa’s health turns out to be incorrect, will they stand trial for lying before the public?.
It is sad that even the Madras High Court did not have the guts to ask for making the information public and it is clear that we are in a state of “Emergency” in Tamil Nadu which is more severe than what is there in Srinagar. The Central Government as well as the Courts seem to be willing parties to this suppression of information that needs to be made public in the interest of Democracy.
I seriously wish Mr Modi does not contribute to this farce by visiting Chennai to have a discussion with Dr Pratap Reddy and return to certify that Jaya’s health is improving. Let’s presume that her health is improving and she will return to rule Tamil Nadu without a certificate from Mr Modi.
In the case of Jharkhand, unless a WhatsApp Admin can be considered as part of a conspiracy, it is difficult to understand how he can be punished for a post.
I consider it a responsibility for the Admin to identify the member by the telephone number and possibly by name. If a post is inappropriate, it should be pointed out to the member. But not doing so should not immediately be considered as an offence grave enough for the admin to be arrested. Also most of the time the so called evidence that the Police may have on the WhatsApp posting should be considered as “Illegally acquired” and cannot stand in a Court of law unless a police officer is part of the group.
I completely agree and endorse that what is objectionable is “an incitement to violence” either on Cyber space or real space….and if it materializes. There can also be instances under Section 79 where non-cooperation of the Admins in an ongoing crime investigation can be objected to by Law Enforcement. But liabilities in such cases should be only when a notice is issued and there is a clear case of non cooperation that can be considered as complicity.
I am sure that what I say above could upset a lot of people including many of my friends. But there is a need for all adults in LEA to avoid irrational and inappropriate application of law which can create wrong precedence. I have many friends in the Police force and I know that they are aware of the law better than myself. I donot want their professional image to be sullied by such inappropriate action taken under some pressure political or otherwise.
We have already seen the ill effects of such over enthusiasm of Police in Palghar who by arresting two ladies for a facebook posting/like ended up getting Section 66A scrapped from ITA 2008.
The actions of the Jharkhand and TN police may end up banning of WhatsApp and Facebook or force the Government of India to introduce new provisions in the amendments proposed in ITA 2000/8 that would render ITA 2000 a draconian law to be feared with rather than a E Commerce promotional law for the progress of Digital India. If so, it would be a tragedy.
Naavi
