Uttar Pradesh Police few days back have registered an
FIR against Congress IT Cell Head Ms. Divya Spandana for twitting an offensive
photo of Prime Minister of India Shri Narendra Modi wherein it is shown that Shri
Narendra Modi is painting his own portrait and the Word “Chor” is written on
the forehead of Prime Minister Modi. The
FIR has been registered under Section 67 of Information Technology Act,
2008 which provides “Punishment
for publishing or transmitting obscene material in electronic form” and Section
124 A of Indian Penal Code dealing with “Sedition”. The photograph of Prime
Minister Modi on the twitter was posted by Ms. Divya Spandana in
the light of allegations of Congress Party against the Prime Minister Modi
alleging corruption and favouritism in the Rafale Fighter deal.
Before proceeding further on the legality of the FIR,
one thing which is very clear and apparent on the face of it is the downward
trend of Indian Political discourse. The Politicians, cutting across political
lines, have forgotten the civility while attacking each other democratically.
In fact a careful perusal of political discourse will reveal that Politicians
have degraded themselves and their opponents without any demur. The political
opposition has become dirtier and abusive wherein both Ruling as well as
Opposite Parties are to be blamed for this downfall.
But then, I ask myself whether the photograph and the
writing on the photograph (without justifying it) constitutes a criminal
offence under Section 67 of Information Technology Act, 2008 and Section 124A of
Indian Penal Code ? Do I disagree with the entire approach of Uttar Pradesh
Police? Though the said photograph along with the writing is abusive, but
certainly being abusive, does not make you seditious. According to Black’s Law Dictionary, abuse
means, “A departure from a legal or reasonable use; misuse” or “physical or
mental maltreatment”. On the other hand,
dissent means, “A disagreement with a majority opinion” and “holding or
expression of opinion at variance with those commonly or officially held.
Before proceeding further let us see the both the sections in dispute.
“Section 67 of The Information Technology
Act,
Section 67 Punishment
for publishing or transmitting obscene material in electronic form. - Whoever
publishes or transmits or causes to be published or transmitted in the
electronic form, any material which is lascivious or appeals to the prurient
interest or if its effect is such as to tend to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it, shall be punished on first conviction
with imprisonment of either description for a term which may extend to three
years and with fine which may extend to five lakh rupees and in the event of
second or subsequent conviction with imprisonment of either description for a
term which may extend to five years and also with fine which may extend to ten
lakh rupees. ”
“Section 124A
of The Indian Penal Code:
124A.
Sedition.—Whoever, by words, either spoken or written, or by signs, or by
visible representation, or otherwise, brings or attempts to bring into hatred
or contempt, or excites or attempts to excite disaffection towards, 10 [***]
the Government established by law in 11[India],12 [***] shall
be punished with 13 [imprisonment for life], to which
fine may be added, or with imprisonment which may extend to three years, to
which fine may be added, or with fine.
Explanation 1.—The
expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation
2.—Comments expressing disapprobation of the measures of the Government with a
view to obtain their alteration by
lawful means, without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.
Explanation
3.—Comments expressing disapprobation of the administrative or other action of
the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.”
A bare perusal of both the section in the light of issue
involved concludes that Section 67 of IT Act is derived from the Act which is
allegedly seditious. Thus in simple terms, a seditious act is one where photo
of PM Modi was published on twitter. Thus the alleged offence is the picture
along with word written with the picture and then uploading it on the twitter
page. Thus allegation of sedition is corner stone and therefore let us
understand if the said act amounts to Sedition ? If the act is not sedition as
provided u/s 124A, then even S-67 of IT Act fails in the present case.
If literal reading of Section 124A dealing with Sedition is made
out, then in that case, any opposition to any mass leader will automatically
become Sedition and this can be beginning of the end of democracy. In fact, the
moment you make a criticism of a mass leader, which is not liked by his/her
follower, then certainly, it can lead to disaffection and can cause excitement
against the mass leader. However,
dissent, as provided in Section 124A of The Indian Penal Code, can only be
against the Government Authorities and by the yardstick of current FIR,
anything and everything against any of the ruling parties, may amount to
dissent. After all in the present case, the act of criticism is against an
office bearer of government. Therefore,
the question, whether the act of portraying Prime Minister the way it was
portrayed by Congress IT Cell
Head Divya Spandana is an offence under Section 124A ?
It is to be noted that right to speech and expression
is a fundamental right and time and again the Hon’ble Supreme Court of India
has held that this right needs to be strongly protected. In fact, on number of occasions, the Hon’ble
Apex Court has held that ‘making a strong criticism of the Government is not
even defamatory, let alone seditious’.
The act on the part of Congress IT Cell Head Divya Spandana by writing
the word “Chor” on the forehead of Prime Minister on the twitter account is
ramification of what the Congress Leaders are arguing; day in day out, in the
political phase. No doubt, the Hon’ble
Apex Court has held that Section 124A of the Indian Penal Code has
constitutional validity. However, the
Hon’ble Apex Court has also added on
number of occasions that one person can be prosecuted under Section 124A of the
Indian Penal Code only if his acts caused incitement to violence or intention
or tendency to create public disorder or cause disturbance of public peace. These ingredients are missing as far as the
subject matter in hand is concerned. In
fact, these ingredients are missing in entirety in the present case and it is
necessary that such ingredients have to be strictly complied with in each and
every case, Otherwise, it may lead to a situation where even a genuine,
bonafide opposition may not find its place.
Let us not forget that a citizen has a right to say or write whatever he
likes about Government or its measures, whether it is by way of a criticism or
comment. However, what is important is
that such criticism should not incite people to violence against the Government
established by law or with the intention of creating public disorder.
The Offence of Sedition is
characterized in Chapter VI of Indian Penal Code which deals with offences
against the “State”. The law to that effect is colonial era law and was meant
to protect the imperial powers from any criticism and certainly this was the
section, which was used, misused and abused maximum to curtail the freedom
movement by the colonial power. The same
section cannot be used to silence the public information or information/criticism
of a major political party though it may not be in a good taste. Let’s not forget that Article 19 (1) (a) of
the Constitution, which talks about freedom of speech and expression is a
fundamental right. This guaranteed right
is subject to the right of the Legislature to impose reasonable
restrictions. However, the said right
talks about the expression “Government established by law” and thus the critics
of PM Shri Modi cannot be dissent u/s 124A even if it is defamatory.
A careful perusal of the view
of Hon’ble Supreme Court of india over the years reveals that to attract
Section 124A
of The Indian Penal Code, it is necessary that the Act should have the effect of subverting the Government by bringing that
Government into contempt or hatred, or creating disaffection against it and
thus writing or saying something against the Prime Minister, though defamatory,
cannot be called dissent. In
other words, any written or spoken words, etc., which have implicit in them the
idea of subverting Government by violent means, which are compendiously
included in the term 'revolution', have been made penal by the section in question.
But the section has taken care to indicate clearly that strong words used to
express disapprobation of the measures of Government with a view to their
improvement or alteration by lawful means would not come within the section.
Similarly, comments, however
strongly worded, expressing disapprobation of actions of the Government,
without exciting those feelings which generate the inclination to cause public
disorder by acts of violence, would not be penal. In other words, disloyalty to
“Government established by law” is not the same thing as commenting in strong
terms upon the measures or acts of Government, or its agencies, so as to
ameliorate the condition of the people or to secure the cancellation or
alteration of those acts or measures by lawful means, that is to say, without
exciting those feelings of enmity and disloyalty which imply excitement to
public disorder or the use of violence.
It’s time Uttar Pradesh Police focuses
on genuine grievances of its people and protecting the life, property and
liberty of its people, both from anti-social elements as well as fake
encounter, rather than making an issue out of political mudslinging. Somehow
while writing this article I can’t forget the famous quote of Richard j. Daley
– ‘The Police are not here to create disorder, they are here to preserve
disorder’.
September 2018
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