Time For State To Introduce A Regime Of Conduct With Stricter Norms To Deal With Rapidly Rising Inflammatory Posts On Social Media: Bombay HC [Read Judgment]

While disposing of a public interest litigation filed against one Abu Faizal for making inflammatory speeches on social media, the Bombay High Court on Friday observed that the it is time for the State to impose stricter norms to deal with rapid rise of 'absolutely avoidable, uncalled for and unwarranted inflammatory posts/messages' on the social media.

Division bench of Chief Justice Dipankar Datta and Justice Madhav Jamdar heard the PIL filed by one Imran Khan. Previously, on May 22, another bench of the High Court passed an ex-parte interim order directing the State government to block a video clip uploaded on social media by Abu Faizal immediately, observing that it was prima facie inflammatory.

According to the petitioner, Abu Faizal who is a AIMIM supporter, has been posting objectionable video clips as well as offensive messages on YouTube, Facebook and other social media sites which allegedly have the potential of creating communal disharmony, more particularly a sense of enmity between Hindus and Muslims. Petitioner contended that despite approaching the nearby police station with a complaint urging the police as well as the State to exercise statutory powers under Sections 149, 151, 110, etc. of CrPC for deletion of such clips/messages, the police as well as the State Government has been largely inactive.

However, on June 2, the writ petition was considered by another coordinate bench. This bench was of the opinion that the writ petition is in the nature of a public interest litigation. Thus, liberty was granted by the order of disposal of the said writ petition to the petitioner to file appropriate writ petition in the necessary format. Consequent upon merger of the order dated May 22 in the later order dated June 2, the former ceased to be the operating direction.

A status report dated June 16, 2020, was filed in deference to an order dated June 12, signed by the Senior Inspector of Police, RAK Marg Police Station, Mumbai. The report states that on receipt of a complaint containing allegations similar to those levelled by the petitioner against the said Abu Faisal, an FIR has been registered against him by the Hyderabad city Cyber Crime Cell under section 153-A/269/188/505(1)(b)/505(2) of the Indian Penal Code read with section 67 of the Information Technology Act, 2000 and in course of investigation, which is in progress, it has been ascertained that the accused, a resident of Hyderabad, is presently in Dubai, UAE.

Advocate Vivek Shukla appeared on behalf of the petitioner and referring to the decision of the Supreme Court in Manohar Lal Vs. Vinesh Anand, he submitted that the said Abu Faizal is an offender and action under the extant laws is required to be taken against him to subserve a social need, since the society cannot afford a criminal like him to escape liability.

Shukla also contended that Abu Faisal having repeatedly committed cognizable offences, it is not only the duty of the police to prevent it but it is also the duty of the police to register an FIR under section 154 of the CrPC upon an information to that effect having reached it, in terms of the decision of the Constitution Bench in Lalita Kumari V/s. Government of Uttar Pradesh and Other.

Appearing for Facebook, Senior Advocate Darius Khambatta submitted that his client is prepared to remove the objectionable posts if directed by this Court subject to the petitioner providing the URL numbers thereof.

Moreover, an affidavit-in-reply has been filed by Google LLC, wherein it is averred that the objectionable video has "already been taken down for violation of the Community Guidelines of You Tube".

Whereas, the Additional Solicitor General representing the Union of India Anil Singh cited the provisions of the IT Act and the rules framed thereunder as well as to the decision of the Supreme Court in Shreya Singhal Vs. Union of India. In this decision, although the Court had struck down section 66A of the IT Act being violative of Article 19(1)(a) of the Constitution, section 69A of such Act and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 were held to be constitutionally valid, Singh argued.

The bench noted that Rules framed under the IT Act contemplate every organization to designate one of its officers as the 'Nodal Officer'. A Nodal Officer may request the Designated Officer and upon such request being received, the Designated Officer in terms of rule 10 is required to block any information or part thereof if so directed by the competent court in India.

Refusing the petitioner's prayer to direct Facebook and others to delete the said post, Court observed-

"Having regard to the statutory provisions noticed above and its interpretation by the Supreme Court in Shreya Singhal (supra), the relief claimed by the petitioner for direction on the police to delete the objectionable video clips/offensive messages from the social media appears to be misconceived. Insofar as direction on the private respondents to permanently block the access of the said Abu Faisal to their corresponding social media sites is concerned, we refrain from making any direction but leave it free to the private respondents to regulate their affairs and make such exclusion as would be desirable for strong reasons of public policy of India and the integrity of the State."

Moreover, the bench rejected the prayer to direct police to prevent Abu Faizal from committing a cognizable offence and posting objectionable video clips etc. Court noted that police cannot do so without having prior knowledge of the alleged criminal intention or power to block access.

Noting that the Nodal officer or the designated officer may proceed with the investigation as the petitioner has already approached them, the bench disposed of the matter but observed-

"In a secular country like India, the citizens of different religions should feel assured that they can live in peace with persons practicing other religions. Regrettably, a trend is clearly discernible that in the name of exercise of a right, the liberty of free speech is being abused with bad faith.

The freedom that Article 19(1) (a) guarantees to every citizen should be exercised rationally and in an orderly manner for legitimate exercises including fair and constructive criticism as well as for upholding the preambular promise of securing fraternity, assuring the dignity of every individual and the unity and integrity of India.

The framers of our Constitution visualised a stable society providing sufficient scope for exercise of the right of free speech and expression. However, those exercising such a right must not remain oblivious that the exercise cannot rise above national interest and interest of the society. In the guise of exercising the right, no form of insult to any group or community disrupting public order ought to ensue.

Notwithstanding the provisions of law in vogue, it is time that the State introduces a regime of conduct with stricter norms but satisfying the test of reasonableness, in exercise of the power conferred by Article 19(2) of the Constitution, to deal with rapid rise of absolutely avoidable, uncalled for and unwarranted inflammatory posts/messages on the social media."

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