India’s Tweeple may rest a little easy now, but only a little. The supreme court on Wednesday barred unsanctioned arrest of social media users who post ‘objectionable’ content on Facebook, Twitter, etc. The court said that junior police officials could not make the arrest without getting clearances from “senior” officials.
Now, as far as kneejerk reactions to such posts and the consequent harassment of citizens (remember the Mumbai girl who was arrested for posting a message on Facebook on the funeral of Balasaheb Thackeray that shut down the city? Or even the Kolkata professor who posted the anti-Mamata cartoon?) the court’s directive augurs well for internet freedom. But a little reading between the lines, and our familiar fears are back. The court upheld the advice given to states by the centre on January 9 and made it mandatory. But the Section 66A of the IT Act still looms large.
With little clarity on who would exactly qualify as “senior” officials, the court order has done little to resolve the problems that spring from the IT Act. However, a little respite comes from the fact that the central government, in a directive in November 2012, had said that officials above the rank of deputy commissioner in the rest of India and the rank of inspector general in metros must be approached for permission for making arrests under the Act. The supreme court ruling now makes the advisory binding and it is a good thing that people will not be arrested at the whims of touchy complainants and pliable junior officers.
The bad thing is that a window where arbitrary arrests can be made remains open, thanks to the Act. One of the provisions of the law hinges offences on content/posts that is “malicious”, “blasphemous”, etc. As long as the provision with such abstract and open-to-interpretations conditions remains attached to arrests, the ‘sanction’ directive would be but a small succour.
Besides, given the way policing is done in India, it would be naïve to expect that the officials will turn up at the doors of the ‘offenders’ with a signed permission letter. In India, the police simply barges in and makes arrests (it happens with the powerful also. Remember the pre-dawn arrest of former Tamil Nadu chief minister Karunanidhi). So, ordinary citizens who rile political groups or vigilante cultural/moral police, will stand little chance of even asking for the permission letter. One of the questions that has arisen from the directive is if the accused has the right to refuse to come to the police station if the letter is not produced. If there are no clear guidelines on how the permission limits undue arrests under the Act, will the directive be able make much of difference.
Just as Section 66 A is vague on the reason of arrest of the person, the guidelines of obtaining permission from a senior police officer are also unclear and open to subjective implementation. How one officer, however senior he/she might be, to gauge what is is objectionable? This guideline will be subject to the personal biases of one officer.
If the prior approval from a senior officer eventually comes to mean just another bureaucratic step in the implementation of the Section 66A in its current form, then the intentions of the supreme court will have been undermined. The malaise is the deliberate vagueness of the written word of the IT Act. Deeper deliberation is needed to understand the public-private nature of social media and the extent to which it can be monitored and controlled by the government. The next step would be to clearly delineate what needs to be done if it indeed needs to be monitored. Till then, bureaucratic steps will mean that the misuse of the Act will be contained to a few and not be entirely dispensed with.