On Monday, a 19-year-old engineer named Thirumurugan was arrested from his home in Srivilliputhur town in Tamil Nadu’s Virudhunagar district. This followed a complaint filed by K Marimuthu, the district secretary of the Bharatiya Janata Party, accusing the teenager of sending abusive messages about Prime Minister Narendra Modi during a private conversation on Facebook Messenger, the police told The Indian Express.

According to the Virudhunagar Superintendent of Police M Rajarajan, Marimuthu had sent Thirumurugan a meme that criticised Tamil actor Vijay’s lines in the movie Mersal. Sequences in the film had questioned the wisdom of the BJP government’s Goods and Services Tax iniative introduced in July and the party had demanded that Mersal be banned. The young engineer had allegedly replied to the BJP leader’s meme with a slew of abusive comments about Narendra Modi, including insults to his mother. Marimuthu sent the Srivilliputhur police photographs of the conversation, and Thirumurugan was arrested the next day.

Thirumurugan has been booked on two charges. The first is Section 67 of the Information Technology Act, 2000, for publishing or transmitting material that contains a sexually explicit act or conduct. The second is Section 505 of CrPC, for making statements conducting public mischief.

But are these charges justified for abusive remarks on a closed group or chat on Facebook?

Incomplete investigation

The district police of Virudhunagar told Scroll.in that Section 67 of the IT Act can be applied in this case, since “such abusive comments cannot be” made “on any platform or media”.

The police, however, have not yet carried out a detailed investigation into the case. Although they have examined the photographs sent by Marimuthu, they are still unclear about whether the conversation took place on a Facebook group page or a Facebook group chat. Superintendent of Police Rajarajan first said that the conversation took place on Facebook Messenger but then went on to say that the complainant had informed him that it was posted as a comment. The police officer finally said that the remarks were posted in a closed group of friends, and the matter needed to be investigated further.

“We still have to get all the details from Facebook,” said Rajarajan. “We have to see who were the members of the group, who have all have witnessed it [the exchange] and also the IP number from the service providers,” he said. “The investigation will be strengthened.”

The police added that since the messages could be forwarded to others and witnessed by other groups too, they had to take action.

The complainant, K Marimuthu, was unavailable for comment. However, Virudhunagar’s BJP District President, GT Soliappan, said that Thirumurugan had been posting abusive content about Modi, and even his mother, on Facebook for some days leading up to the arrest. “We even called him and asked him not to post such messages, since the whole world could see it,” said Soliappan. “But he did not listen, so we had to file a complaint.”

Soliappan added that the party’s district Information Technology cell watches the exchanges on such groups and immediately takes up the matter if abusive remarks are made.

Obscene content?

However, according to lawyers, Section 67 of the IT Act is only applicable if the contents are actually obscene.

“Obscenity is meant to be sexually titillating,” said Supreme Court lawyer Gautam Bhatia. “If it not meant to sexually arouse someone, it is not obscene. That is the core definition under Indian law.” Using profane language, he said, need not necessarily be obscene.

While some profane content could potentially be obscene, not all profanity constitutes obscenity, said Ramanjit Singh Chima, a lawyer and a policy director at Access Now, a group that advocates internet freedom. “It has to undergo a test of whether it affects community standards,” he said. “It cannot automatically be considered as obscenity.”

According to Chima, the provision normally covers the publication and distribution of obscene content. “If it is a closed group on Facebook, it could still be argued to constitute distribution,” said Chima. “But, in practice, the court may decide that it is not obscenity, and decide not to penalise the person.”

Chima said that there have been concerns over the last couple of years that Section 67 of the Information Technology Act has sometimes been used in situations where it should not have been. “Since it is a broad provision, reproducing the Indian Penal Code provision on obscenity – without its safeguards – it is often used by the police along with other provisions to penalise someone,” he said.

The town of Srivilliputhur. Credit: Vinita Govindarajan
The town of Srivilliputhur. Credit: Vinita Govindarajan