Bombay High Court: A Division Bench of Dipankar Datta, CJ and Madhav J. Jamdar, J., while addressing the instant Public Interest Litigation made an observation that,
Right to freedom of speech and expression cannot be exercised to sow seeds of hatred and to create disharmony among religious communities.
Since infammatory posts/messages have the potential of disturbing public peace and tranquility, strong action ought to be taken against those responsible to uphold the high values aimed at by the Constitution.
It has been alleged that Abu Faizal has been posting objectionable video clips as well as offensive messages on YouTube, Facebook and other social media sites which have the potential of creating communal disharmony, a sense of enmity between Hindus and Muslims.
Police has been inactive in getting such posts removed after urging them to do so through the complaint.
In May, this Court had passed an order asking respondents to file an affidavit-in-reply.
Such order further directed investigation against the said Abu Faisal if the substance were found in the allegations made by the petitioner against him. Also, the respondents were directed to block the video uploaded on social media.
Since no step was taken by police, the said Abu Faisal has felt encouraged to post objectionable video clips/offensive messages one after the other with an intention to create unrest.
An FIR was registered by Hyderabad city Cyber Crime Cell against the said Abu Faisal under Section 153-A/269/188/505(1)(b)/505(2) of the Penal Code, 1860 read with Section 67 of Information technology Act, 2000 and during the investigation, it was found that the accused is presently in Dubai.
What did the petitioner seek in view of the above-stated facts?
Petitioner seeks orders on the State and its police force to prevent the commission of cognizable offence by the said Abu Faisal and to take steps for deletion of the offensive video clips/messages, as well as for direction on the respondents 4 to 6 to permanently block the access of the said Abu Faisal to the relevant social media sites.
It is in terms of the power conferred by Section 69A (2) of the I.T. Act that the Rules of 2009 have been framed. Such rules contain a comprehensive procedure for blocking access to information by the public.
Decision in Shreya Singhal v. Union of India, (2015) 5 SCC 1 says that there are only two ways in which a blocking order can be passed – one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by the competent Court.
In view of the above, Court held that neither the State nor its police force can issue a blocking order; it is left to the discretion of the designated officer under the 2009 Rules.
Further, the Court added that insofar as direction on the private respondents to permanently block the access of the said Abu Faisal to their corresponding social media sites is concerned, bench refrained from making any direction but left it free to the private respondents to regulate their affairs and make such exclusion as would be desirable for strong reasons of public policy of India and the integrity of the State.
The duty entrusted upon the police by Sections 149 and 150 of the CrPC to prevent the commission of cognizable offence has to be preceded with knowledge or information of a design to commit a cognizable offence.
However, in the present matter, without having any prior knowledge or information of any design of the said Abu Faisal and the probable time to commit cognizable offence by posting objectionable video clips/offensive messages and without being empowered to block access of the said Abu Faisal to social media sites, it may not be possible for the police to prevent a cognizable offence being committed by him.
Hence in view of the above, PIL was disposed of with a parting observation that,
“…People may exercise some degree of restraint on their liberty of free speech and expression particularly during these testing times.”
“…it is time that the State introduces a regime of conduct with stricter norms but satisfying the test of reasonableness, in the exercise of the power conferred by Article 19(2) of the Constitution, to deal with the rapid rise of absolutely avoidable, uncalled for and unwarranted inflammatory posts/messages on the social media.”
[Imran Khan v. State of Maharashtra, PIL-CJ-LD-VC-23 of 2020, decided on 21-08-2020]