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Facebook arrests: Constitutional Right of Expression and public interest
Shaheen Dadha and her friend, both 21, posted on Facebook questioning closure of city on Balasaheb's funeral day. The piece was considered irreverent by shiv sainiks. Police charged them under section 295a of IPC and section 66 (a) of IT Act, the girls were arrested and released on bail. What next?

BEFORE EMBERS of the funeral pyre of Shiv Sena chief Bal Thackeray could die down, two women and close bosom friends, Shaheen Dadha and Rina posted their views on the Facebook that, according to Shiv Sainiks ran against their prevailing somber mood and ethos of the hour.

Mature in age but immature in thought, Shaheen arrogantly questioned the sagacity of downing shutters of business on the demise of a man who was no great shake. Balasaheb, whose funeral was attended by two million Mumbaikars, is venerated by Shiv Sainiks as their Senapati and others as a champion of the Marathi Manoos.

The Shiv Sainiks already on emotional tenterhooks, felt mortally offended and the aggressive among them at Thane bayed for blood. In a short time, an angry mob of Shiv Sainiks was knocking at the police doors in Thane, pressurizing them to arrest the girls who had, what they felt, insulted a Maharashtrian icon and bring them to trial under relevant provisions of law. The hurt feelings of the Shiv Sainiks were legally aided by lawyers who knew the law and its procedure. The FIR mentioned the sections of the Indian Penal Code and the IT Act 2001 as amended in 2008 and made stringent.

The hurt feelings of the Shiv Sainiks and the surrounding facts made the mob more emotional and they pressed hard for immediate action against the girls.

FREEDOM OF SPEECH

Let us take a look at the legal angle of the case and the Constitutional validity of our right to exercise Freedom of Thought and Expression. It would be a good idea to fall back on the constitutional provisions regarding freedom of Thought and Expression. Broadly speaking, article 19 of our Constitution covers this right. Let us quote it:

(THE EXPOSITION GIVEN BELOW IS QUOTED FROM THE RELEVANT paper WRITTEN BY Surabhi Singhi of Jodhpur and adopted with thanks)

Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. "Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers" proclaims the Universal Declaration Of Human Rights (1948). The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1)(a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.

Man as rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger interest of the community. The right to freedom of speech and expression is subject to limitations imposed under Article 19(2).

Public order as a ground of imposing restrictions was added by the Constitution (First Amendment) Act, 1951. Public order is something more than ordinary maintenance of law and order. Public order in the present context is synonymous with public peace, safety and tranquility.

Meaning And Scope

Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech and expression. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation, such as gesture, signs, and the like. This expression connotes also publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value. The freedom of speech and expression includes liberty to propagate not one's views only. It also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press.

Freedom of expression has four broad special purposes to serve:

1) It helps an individual to attain self-fulfillment.

2) It assists in the discovery of truth.

3) It strengthens the capacity of an individual in participating in decision-making.

4) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

5) All members of society would be able to form their own beliefs and communicate them freely to others.

In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters of concerning newspaper industry than while levying taxes on other matters.

Explaining the scope of freedom of speech and expression Supreme Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution.

Freedom to air one's view is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. The modern communication mediums advance public interest by informing the public of the events and development that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any setup more so in a democratic setup like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution.

The various communication channels are great purveyors of news and views and make considerable impact on the minds of readers and viewers and our known to mould public opinion on vitals issues of national importance. The freedom of speech and expression includes freedom of circulation and propagation of ideas and therefore the right extends to the citizen to use the media to answer the criticism leveled against the views propagated by him. Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest.

I would like to reiterate that the Constitutional freedom that we are discussing is to be exercised with great caution and care must be taken not to jeopardize public interest. Thus the Public Interest will take precedence over private interest. It may be seen that Shaheen and her friend transgressed over the tender feelings of a vast majority of Mumbaikars. It will be for the court of law to see whether the Police did the right thing by booking the girls under section 295A IPC.

IT ACT INVOKED

The Police has also invoked section 66A of the Information Technology Act, as amended, and charged the two girls accordingly. Let us take a look at the relevant law:

[ 66A. Punishment for sending offensive messages through communication service, etc..-Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to tthree years and with fine.

Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

[* Inserted vide Information Technology Amendment Act, 2008]

 

The law is relevant to the commission of offence by the two 21-year old girls who are no juveniles. They are full grown adults from all angles and understand the import of their act or omission. Had they been teenagers, the govt would have possibly thought twice before charging them under section 66A, IT Act. Our discussion at this stage is merely academic. It is the Court of Law that would take the final view on commission of an offence under the legal provision quoted in this paragraph.

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