At 2.15 pm on 22 February, a peculiar complaint was lodged at the Sheshadripuram Police Station in Bengaluru. In the complaint, Inspector Ravi stated that when he was scrutinising content on social media platforms, he came across two tweets of actor and activist Chetan. In the first tweet, Chetan had criticised Justice Krishna Dixit for making misogynistic observations while granting bail to a person accused of rape. In the second tweet, Chetan referred to the first tweet and questioned whether Justice Dixit had the ‘clarity’ required to decide whether hijabs should be allowed in government educational institutions or not.
The Inspector alleged that through these tweets, Chetan caused Muslims and other citizens to lose faith in the Constitution, judiciary, and other institutions. He further alleged that Chetan’s tweets spread hatred, instigated Muslims, and others to breach the peace and thereby damaged the integrity of the nation. Lastly, he alleged that by insulting Justice Dixit, Chetan attempted to force Justice Dixit to recuse himself from hearing cases related to the hijab ban.
Pursuant to this complaint, the Sheshadripuram Police registered a First Information Report under Sections 504 and 505(2) of the Indian Penal Code. In the evening, the police arrested Chetan, interrogated him and produced him before a Magistrate who then sent him to judicial custody for fourteen days.
What is striking in this episode is the gross misuse of criminal law by the police. Section 504 of the IPC criminalises insulting and provoking a person with the intention of causing the person to breach the peace or commit any other offence. The threshold to attract Section 504 is quite high as it applies only to insults that are designed to provoke a person to breach the peace or commit any other offence. It is bizarre that the police believe that Chetan’s alleged insult was intended to cause Justice Dixit to breach the peace. In fact, the Supreme Court has clarified that even abusing a person will not attract Section 504 unless the accused intended or knew that his act would cause the person to breach the peace.
Justice Dixit’s observation on how an Indian woman would typically behave after a sexual assault was widely criticised. Eventually, he expunged those remarks from the judgment. Chetan criticised Justice Dixit and his observation by referring to him as a ‘fossil’. In the second tweet, he merely drew attention to Justice Dixit’s ‘disturbing comments’ in the sexual assault case and asked if he had the ‘clarity’ to decide the hijab case. If these ‘insults’ have defamed Justice Dixit, it is his prerogative to sue Chetan. Even if we assume for the sake of argument that Chetan’s comments not only defamed Justice Dixit but also scandalised the court, the court may initiate contempt proceedings. Section 504 is not a substitute for defamation and contempt proceedings.
Section 505(2) criminalises making statements that create or promote enmity, hatred or ill-will between classes or groups on grounds of religion, race, language, caste, etc. It is usually invoked to deal with hate speech. Chetan’s tweets do not refer to any group or religion. Despite this, the Inspector alleged that he intended to instigate people, particularly Muslims to disturb tranquillity. The Supreme Court has unequivocally held that narration of facts and expression of opinions and criticism do not attract Section 505 unless a person ‘actively incites’ the audience to cause public disorder. Furthermore, ‘fanciful and remote’ possibilities of disorder may not be cited to invoke Section 505.
When the Supreme Court struck down Section 66A of the Information Technology Act, it condemned the idea of criminalising discussion and advocacy of ideas merely because others find them offensive or annoying. However, the police have found a way around the absence of Section 66A by invoking Section 505 to prosecute netizens. For instance, people who posted ‘disrespectful’ comments on General Bipin Rawat were booked under Section 505. Vinod Dua was booked under Section 505 for criticising the Prime Minister and the government on his YouTube show. There are many other instances of Section 505 functioning as a substitute for Section 66A and creating a chilling effect on free speech.
It is unfortunate and disconcerting that Chetan was sent to judicial custody in a flimsy case. Magistrates are supposed to function as the first line of defence against arbitrary arrests and detention. The framers of the Constitution consciously chose to recognise an arrestee’s right to be produced before a Magistrate within twenty-four hours of the arrest so that personal liberty is not left to the police’s whims. Though it is a settled principle of law that bail is the rule and jail is an exception, pre-trial detention is rampant in India. Unless there are genuine apprehensions that the accused may flee, destroy evidence, threaten the witnesses, or obstruct justice which makes detention in a prison absolutely necessary, there is no good reason to deny bail.
It is equally disconcerting that the police chose to arrest Chetan straightaway instead of following the procedure of issuing a notice under Section 41A of the Code of Criminal Procedure, 1973. If police officers who ignore the law or misuse the law go unpunished, it is akin to condoning state-led lawlessness.
While granting bail to Arnab Goswami, Justice D Y Chandrachud pithily observed “Deprivation of liberty for even a single day is one day too many.” Unfortunately, the police and the judiciary have not embraced this sentiment as an institutional value.
Rahul Machaiah is a lawyer from Karnataka. He holds an LLM in Law & Development from Azim Premji University.