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Supreme Court Restrains Tripura Police From Acting Against Activist's Tweets On Tripura Violence

Mehal Jain
10 Jan 2022 7:42 AM GMT
Supreme Court Restrains Tripura Police From Acting Against Activists Tweets On Tripura Violence
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Supreme Court Restrains Tripura Police From Acting Against Activist's Tweets On Tripura Violence

The Supreme Court on Monday restrained the cyber cell of Tripura police from acting in furtherance of its notice under section 91, Cr. P. C. to Twitter, in respect of activist-journalist Samiullah Shabbir Khan's tweets about violence in Tripura. The impugned notice asked Twitter to remove the Tweet and sought details of IP address and phone number for the purpose of investigation for the...

The Supreme Court on Monday restrained the cyber cell of Tripura police from acting in furtherance of its notice under section 91, Cr. P. C. to Twitter, in respect of activist-journalist Samiullah Shabbir Khan's tweets about violence in Tripura.

The impugned notice asked Twitter to remove the Tweet and sought details of IP address and phone number for the purpose of investigation for the criminal cases registered against Khan.
Issuing notice on the writ petition, the bench of Justices DY Chandrachud and AS Bopanna recorded the following submissions by Advocate Shahrukh Alam, for the petitioner-
1. The petitioner had put out a tweet on his Twitter account referring to the violence that had taken place in Tripura and the vandalisation of places of religious worship;
2. The Tripura police was tagged in the tweet;
3. On 22.11.2021, a communication was addressed from the office of the Superintendent of Police (Cyber Crime), Crime Branch, Tripura Police to Twitter Inc., adverting to the registration of FIRs under sections 153 A, 153 B, 469, 471, 503, 504, 120 B of the IPC and section 13 of the UAPA. The communication sought, inter alia, the removal of the contents of Twitter accounts whose URLs/Links are provided separately; to preserve the contents of the Twitter accounts from 01/10/2021 to 30/04/2022 whose URLs/Links are provided separately; details of user registration of the Twitter accounts as listed; Browsing log details from 01/10/2021 to 07/11/2021 of the Twitter accounts as listed; E-mail addresses added to the Twitter accounts as listed; List of Login/Logout IP addresses of the Twitter accounts as listed from the 01/10/2021 to 07/11/2021; Mobile numbers added to the Twitter accounts as listed at the time of registration and subsequent updation.
"In the above premises, it has been submitted that writing about violence will certainly not attract any of the offences to which a reference is contained in the communication", the bench recorded.
"Issue notice...Pending further order, there shall be an ad-interim direction staying the first respondent [SUPERINTENDENT OF POLICE (CYBER CRIME)] from acting on the communication dated 22 November 2021 as against the petitioner to these proceedings", directed the bench.
Ms. Alam had prayed that in addition to notice on the writ petition, she seeks a stay of the impugned notice as it amounts to an "invasion of privacy". "The suggestion seems to be that writing about the violence is contributing to the violence and that, to my mind, is completely misdirected" she had urged.
The plea urges that the Petitioner herein is a socially conscious student who has received notice from Respondent No.2 (Twitter) stating that his Twitter Account is one of several that has been marked by the Respondent No.1 and has been made the subject of a roving enquiry.
The notice received by Twitter and forwarded to the Petitioner for his information states that Case No. 2021WAG181 under Sections 153A, 153 B, 469, 471, 503, 504, 120B of the Indian Penal Code, 1860 and also astonishingly, for an alleged 'speech act' at best, Section 13 of the Unlawful Activities Prevention Act, 1967.
The roving enquiry involves allegations that some accounts on twitter posted 'distorted and objectionable' news items around the violence in Tripura. The allegations inter alia include the following:
i. The terms 'distorted' and 'objectionable' are used interchangeably in relating to posts about 'vandalized mosques' and 'atrocities on Muslims' and both are treated as constituting an offence.
ii. It is suggested that posts about the alleged targeted violence, and allegations about lack of response from authorities are objectionable and constitute an offence because they might further create 'communal disharmony'.
iii. Further, it is suggested that writing about incidents of targeted violence might provoke further violence in the state.
iv. In terms of the allegations of posting 'fabricated news', there is no distinction between 'retweets', which may have been reckless at worst, and motivated tweets if any. It must also be said that the allegation regarding fabricated posts is disputed between journalists and public authorities.
It is submitted that based on the aformentioned allegations, the office of the Superintendent of Police (Cyber Crime), Agartala, has asked Twitter to provide all details of these accounts including, inter alia, their browsing histories and mobile phones.
It is submitted that the impugned action of the police is perverse and completely misinterprets the law relating to 'speech acts' as laid down by the Supreme Court-
i. Article 19(2) of the Constitution of India allows restrictions on speech if it offers an imminent threat to public order. However, for speech to form an exception to constitutional protections, it must act like a 'spark in a powder keg', such that public disorder is immediate and imminent. References to vague and unsubstantiated 'potential to flare up communal tension' because of journalistic reportage of targeted violence is not sufficient to strip speech of its constitutional protection. Shreya Singhal v. Union of India [2015 (5) SCC 1]
ii. There is no constitutional protection against 'offense'. On the other hand, if an action – targeted speech or violence- is resulting in physical or structural violence of a people, then that does constitute a constitutional breach. They have an inherent right to report, talk about and protest such a breach. Classifying such reportage and protest as objectionable causes further marginalisation.
iii. This Court has distinguished 'speech acts' in the case of Amish Devgan v. Union of India [2021 (1) SCC 1] case and held that speech that causes cumulative structural violence in terms of spatial, social and economic discrimination is different from protests, and speech critical of such structural violence. The latter needs to be further protected unless it is directly instigating violence.
iv. This Court, in the case Amish Devgan (supra), has also recognized that "Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. (...) Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech. This is recognition of the denial of dignity in the past, and the effort should be reconciliatory."[Paragraph 75]
v. Criminal action often in fact confuses 'hate speech' with unpopular or dissenting speech in breach of the dictum of Amish Devgan (supra), Pravasi Bhalai Sangathan v. Union of India [2014 (11) SCC 477] and also the Law Commission 267th Report.
That Amish Devgan (supra) states that 'variable context' ought to weigh in favour of the marginalized.
vi. The current narrative inverts the source of threat and violence, from the actual participants to those who have reported, criticized and questioned it. It thus has a chilling effect on democratic accountability.
vii. Sections of the Indian Penal Code are proscribed by Article 19(2) of the Constitution of India and must show intent and imminence in terms of causing public disorder.
The petition urges the following prayers-
i) Issue appropriate writ, order or direction quashing the impugned notice dated 22.11.2021 served upon Respondent No.2 by Respondent No.1 under Section 91 of the Cr. P. C. in Case No. 2021WAG181 u/sec. 153A, Sections 153A, 153 B, 469, 471, 503, 504, 120B of IPC and Section 13 of the UAPA, 1967;
ii) Issue appropriate writ, order or direction clarifying the law on speech that constitutes an offence
Case Title: Samiullah Shabbir Khan V. Superintendent Of Police (Cyber Crime) And Anr.


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