On Wednesday, filmmaker Avinash Das was arrested for posting a photo of Union minister Amit Shah with suspended Indian Administrative Service officer Pooja Singhal, who has been arrested on charges of money laundering. Das has been charged under sections dealing with forgery for the purpose of harming someone’s reputation and transmitting obscene material.

The first information report against Das states that he lied about when Shah’s picture with the IAS officer had been taken. Police claim that Das habitually posts fake news on social media. He has also been booked for insulting the national flag for sharing a photo of a woman wearing the Indian tricolour.

Das’s arrest was part of a trend that appears to have become more pronounced recently: people being arrested for criticising politicians. Few of these cases actually result in convictions, lawyers say. But they have a chilling effect on free speech, as the long-drawn legal process of arrests and bail becomes the punishment.

Across party lines

Arrests for mocking or criticising politicians cut across party lines. In May, Marathi actor Ketaki Chitale was arrested in Maharashtra for a social media post about Nationalist Congress Party chief Sharad Pawar. She had shared a poem that said that “hell is waiting” for Pawar and made comments about his appearance and illness. Twenty-two FIRs have been registered against Chitale for her post.

In June, YouTuber Roddur Roy was arrested for abusing West Bengal Chief Minister Mamata Banerjee during a Facebook live session.

In March, the Azamgarh Police arrested a man who was allegedly abusing Prime Minister Narendra Modi and Uttar Pradesh Chief Minister Adityanath in a video. He was charged with intentional insult with intent to provoke breach of peace and transmitting obscene material, among other charges.

In several other cases, social media users have been booked for “objectionable posts” about Adityanath on social media platforms such as WhatsApp and Facebook.

Even legislators have been arrested. In April, Gujarat Member of Legislative Assembly Jignesh Mevani was arrested for tweeting that Modi was a worshipper of Nathuram Godse, Mahatama Gandhi’s assassin.

In these cases, laws related to social harmony and curbing hate speech are used, lawyers say. Some commonly used sections in these cases are: 153A of the Indian Penal Code, which punishes anyone who promotes enmity between different groups, and 504 of the IPC, which prohibits intentional insults for breaching peace.

The National Crime Records Bureau data shows that there has been a five-fold increase in Section 153A cases from 2014 to 2020.

“Sometimes, the police may charge a person under sections that have absolutely no bearing on the case,” advocate and author Chitranshul Sinha said.

These cases have continued even though one of the laws that was commonly used by politicians against critics was struck down by the courts. In 2015, the Supreme Court struck down Section 66A of the Information Technology Act, which criminalised “sending offensive messages” online and was routinely used by political parties against their critics. this law. But now, Section 67 of the IT Act, which prohibits publishing any obscene material online, is widely used.

“Most of these cases result in acquittal,” Sinha said. According to reports, Section 153A cases have the lowest conviction rates – only one in five – among all crimes.

“But the point is to have a chilling effect, which happens by keeping people in jail and making them run for bail,” Sinha said.

Registering FIRs easy

It is not that there is ambiguity in the laws used for these arrests. “There are enough judgments defining what is obscene speech, what promotes enmity etc.,” Delhi-based criminal lawyer Sowjhanya Shankaran said. “However, there is not a very high threshold for registering an FIR.”

The registration of an FIR is mandatory if a cognisable offense is made out. If the police think that a cognisable offence has not been made out, they can also conduct a preliminary inquiry. Cognisable offences are those for which the police can make arrests without a warrant. Some of the offences mentioned above, such as Section 153A, are cognisable.

“On the ground, getting an FIR registered also depends on who is registering it and against whom it is being registered,” said advocate on record Talha
Abdul
Rahman. “If it is a case involving politicians, the police will be cautious to comply.”

Even when an FIR is registered, “whether an arrest needs to be made is the question in these cases”, Shankaran said. The Supreme Court has laid down conditions for arrests in offences that carry a sentence of less than seven years’ imprisonment, she said. But these are rarely followed.

Once arrested, bail becomes extremely difficult. “In most states, lower courts are very reluctant to give bail,” Rahman said. “Someone can easily accuse them of corruption, bribery etc., and ask for an inquiry.”

As a result, magistrates act as rubber stamps while giving the police custody of the people accused. Sinha said that it is often the sessions and High Courts that grant bail in these cases.

However, this takes time. “At every step, the process becomes the punishment,” Rahman said.

In some instances, even higher courts may not offer relief. On July 15, the Allahabad High Courtrefused to quash a first information report against a person who allegedly called the prime minister and home minister “dog”. Free speech under the Constitution does not extend to abusing citizens, the court said, “much less the prime minister or other ministers”.