UAPA, Sec 66A for Social Media Use: Is J&K Police’s FIR Legal?

Social media sites have been blocked, but people in Kashmir have accessed them using VPNs.

On Monday, 17 February, the Jammu and Kashmir Police registered a case against people who have tried to access social media in the Union Territory, in defiance of the telecom restrictions orders passed by the government.

“There have been continuous reports of misuse of social media sites by miscreants to propagate secessionist ideology and to promote unlawful activities,” a police spokesperson told news agency PTI, adding that the FIR has been registered after taking cognisance of social media posts by these ‘miscreants’ using virtual private networks (VPNs).

While social media usage has been restricted in the region, the legality of the J&K Police’s actions is being questioned, as they are booking people under Section 13 of the draconian Unlawful Activities (Prevention) Act (UAPA), as well as Section 66A of the Information Technology Act (which was struck down as unconstitutional by the Supreme Court in 2015).

Is Accessing Social Media Sites/Using VPNs Illegal in Jammu & Kashmir?

To comply with the Supreme Court’s verdict on restrictions in the region, the J&K government had conducted a review of the suspension of telecom services and issued new orders under the Temporary Suspension of Telecom Service (Public Emergency or Public Safety) Rules 2017 on 14 January and 18 January, for regulation of the internet in the Union Territory.

Under these orders, which replaced those which had been put in place after the abrogation of Article 370 of the Constitution, only a limited number of websites were ‘white-listed’ and made accessible, including government websites, essential services, e-banking and so on. The list was subsequently expanded to include news websites, and the order is reviewed and renewed on a periodic basis.

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However, from the start, the orders specified that all social media sites would be inaccessible, further to the material before the J&K Home Department that allegedly indicated that “separatists/anti-national elements” were trying to incite people by transmission of fake news and targeted messages.

The order dated 14 January expressly mentioned that “there shall be complete restriction on social media applications allowing peer to peer communication and virtual private network applications for the time being.”

Can the Police Book People Defying This Order Under UAPA/Section 66A of IT Act?

The FIR, the first registered at the new Cyber Police Station (Kashmir Zone) in Srinagar, has been registered under the following provisions:

• Section 13, Unlawful Activities (Prevention) Act 1967
• Section 66A(b), Information Technology Act 2000
• Sections 188 and 505, Indian Penal Code 1860

The police have identified 200 people as alleged ‘misusers’ of social media so far, according to Kashmir-based journalist Ahmed Ali Fayyaz. In a statement to the press, the Inspector General of Police for Kashmir, Vijay Kumar, has also made an appeal to the public not to use social media via VPNs.

The key question is whether the people booked are specifically those who have made posts intended to bring about the secession of a part of India, which would make them fall foul of Section 13 of the UAPA, which punishes ‘unlawful activities’.

Unlawful activity is defined under the UAPA as any action (including statements) which is intended to bring about the secession of India (or supports/incites a claim for the same) or which disclaims, questions or disrupts (or is intended to disrupt) the sovereignty and integrity of India.

As this involves restrictions on free speech, the provision has to be read with Article 19(2) of the Constitution, and so there must be some genuine threat to “sovereignty and integrity of India, the security of the State” or public order from these posts.

Similarly, for justifying the charge of Section 505 of the IPC (public mischief), it would have to be shown that the posts had been made with the intent to cause fear or alarm among the public, or incite communal violence, or promote enmity among communities.

WOULD JUST ACCESSING SOCIAL MEDIA SITES BE ILLEGAL?

Mere access of a social media site, through usage of a proxy or VPN, would not fall foul of the UAPA or Section 505 of the IPC, despite the government orders.

At best, such access would be a violation of Section 188 of the IPC, which deals with disobedience of an order lawfully passed by a public servant, as the Telecom Suspension Rules 2017 do not provide any punishment themselves.

WHAT ABOUT SECTION 66A OF THE IT ACT?

In any circumstance, there is no justification for registering the case under Section 66A(b) of the Information Technology Act, as the entire provision was struck down by the Supreme Court in the landmark Shreya Singhal case in 2015 (see para 119).

The apex court found that Section 66A was vague and over-broad, using language that was open to misinterpretation and easily misused, and so held it was unconstitutional.

As a result, booking people for social media posts under this provision is blatantly illegal, and they cannot be prosecuted under this even if the case proceeds to trial.

Interestingly, the police officers who have registered this case using this provision could face sanction for this, if the example of the Karnataka High Court is followed. In January, the court fined two police officers Rs 10,000 each for registering an FIR under Section 66A, holding that this was “nothing but a clear abuse of process of law and harassment to the citizen.”

The Supreme Court of India has also previously said that police officers who violate its judgment could even be arrested.

What Punishment Do Those Booked Under These Charges Face?

SECTION 188, IPC

• The maximum punishment for a violation of Section 188 of the IPC is imprisonment for one month and a fine of Rs 200, if the disobedience of the order causes “obstruction, annoyance or injury” to the public servant who passed it.
• If it also leads to a riot or affray, then it is punishable with six months’ imprisonment and a fine of upto Rs 1,000.

SECTION 505, IPC

• The maximum punishment for an offence under Section 505 of the IPC is three years’ imprisonment and a fine.

SECTION 13, UAPA

• A person convicted under Section 13 of the UAPA can be punished with imprisonment of up to seven years as well as a fine.
• Even before a conviction, however, being booked under the UAPA has significant consequences when it comes to bail. If a person is charged with an offence under the UAPA, they cannot get anticipatory bail. Getting bail after being arrested is almost impossible because Section 43D(5) states that a court cannot release someone on bail if the case against them is prima facie true.
• Section 43D(2) of the UAPA also doubles the amount of time an accused person can be remanded to police custody (to 30 days) and allows 90 days of judicial custody even for offences which would otherwise only up to 60 days.

(With inputs from PTI.)