FIR against Kashmiri social media users under UAPA, Sec 66A: Legal or illegal?

A day after a video of ailing Hurriyat leader Syed Ali Geelani emerged on the social media, an FIR was registered in the Cyber Police Station Kashmir Zone, Srinagar, against internet users dodging social media ban through proxy servers or Virtual Private Networks (VPNs).

Since social media sites don’t count among the white-listed websites declared by the Union Territory administration of Jammu and Kashmir, police registeredan FIR on Monday, February 17, under section 13 of UAPA 1967, section 66A (b) of Information Technology Act 2000 and sections 188 and 505 of Indian Penal Code 1860, against unknown users. The police are also said to have identified over 200 people who allegedly misused social media.

Incidentally, most of the netizens in J&K are not able to access social media sites as the mobile companies had recently installed firewalls that block VPNs which help users to hide their location. However, those who have broadband connections continue to enjoy access to social media sites.

J&K was put under a communications lockdown after the Modi government announced its unilateral decision on August 5 to abrogate the former state’s special status and divide it into two centrally administered UTs.

The apex court took note of the communications restrictions on January 10 and observed that the access to internet cannot be suspended indefinitely in J&K. A three-judge bench held that freedom of speech and expression under Article 19(1)(a) of the Constitution includes the right to internet. Any restrictions on access to internet have to follow the principle of proportionality under Article 19(2) of the Constitution, the court maintained.

Complying with the court’s order, the UT administration, in a face-saving exercise, had issued new orders under the Temporary Suspension of Telecom Service (Public Emergency or Public Safety) Rules 2017 on January 14 and lifted the ban on 2G services. However, the ban on 3G and 4G services was further extended till February 24.

Notably, the order issued by J&K Homes Department dated January 14 stated that “there shall be a complete restriction on social media applications allowing peer to peer communication and virtual private network applications for the time being.”

However, a section of internet users in Kashmir had resorted to VPNs to access social media websites. “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 VPNs.

Experts, however, argue that the charges under the FIR don’t stand legal scrutiny. Significantly, Section 66A of the IT Act was struck down by the Supreme Court in the landmark Shreya Singhal case in 2015. Reacting to continued use of the unconstitutional section of the Act, the apex court had even warned that strict action would be taken against the erring cops.

Last month, Karnataka High Court had directed two police officers to pay a penalty of Rs 10,000 each for registering an FIR under Section 66 (A) of the IT Act. The court had noted, “This is a case in which police have initiated criminal proceedings invoking provisions of law which is not in the statute book. Police have initially recorded the complaint as NCR and for reasons best known the very same officer has registered FIR after one week. This is nothing but a clear abuse of process of law and harassment to the citizen.”

Executive Director of Internet Freedom Apar Gupta wrote on Twitter: “Filing FIRs for the use of VPNs is illegal. Prosecution under 66A is unconstitutional. Right now I am talking to lawyers on how to extend help. Action will be taken only with care based on the actual needs of local users, factual inputs and legal merits.”

According to experts, section 13 of the UAPA deals with “unlawful activity” which has been defined under the law as any action, including statements, which is intended to bring about the secession of India or supports or incites a claim for the same or which disclaims, questions or disrupts or is intended to disrupt the sovereignty and integrity of India.

This provision of the UAPA, they say, has to be read with Article 19(2) of the Constitution. Therefore, there must be a real threat to security, sovereignty and integrity of India, or public order from these posts, in case a person is charged under such provisions.

Under section 505 of the IPC, the prosecution will have to establish that the accused social media users caused fear or alarm among the public, or incited communal violence or promoted enmity among communities.

While the Telecom Suspension Rules 2017 do not provide any punishment, police have also resorted to section 188 of the IPC, which deals with disobedience of an order lawfully passed by a public servant.

Digital experts have termed the police action as “authoritarian”, arguing that restricting VPN usage violates users’ right to privacy and free speech. “Despite a Supreme Court judgment, all that the authorities have done is to allow for a few whitelisted websites and 2G connections keeping the internet shutdown in effect the same. This clampdown on free speech and expression is bound to force people to get their voices out in different ways,” Technology lawyer, Mishi Choudhary, was quoted as saying by the TOI.

She further stated that “instead of using the State power to book users as criminals for speaking, we should allow the internet to work like a democratic society.”