On 21 August 2020, in a public interest litigation filed against Abu Faizal for making inflammatory speeches on social media, the Bombay High Court while disposing of the plea observed that it is time for the State to impose stricter norms to deal with the rapid rise of ‘absolutely avoidable, uncalled for and unwarranted inflammatory posts/messages’ on the social media.
The PIL filed by Imran Khan was heard by the division bench of Chief Justice Dipankar Datta and Justice Madhav Jamdar.
Previously, another bench of the High Court passed an ex-parte interim order directing the State government to block a video clip uploaded on social media by Abu Faizal immediately, observing that it was prima facie inflammatory on May 22.
Inflammatory content by Abu Faizal
The petitioner expressed that Abu Faizal is an AIMIM supporter who has been posting objectionable video clips as well as offensive messages on YouTube, Facebook and other social media sites which allegedly have the potential of creating communal disharmony, more particularly a sense of enmity between Hindus and Muslims.
Contentions by the Petitioner in Abu Faizal Case
Despite approaching the nearby police station with a complaint urging the police as well as the State to exercise statutory powers under Sections 149, 151, 110, etc. of CrPC for deletion of such clips/messages, the State Government as well as the police has been largely inactive in hearing the Petitioner.
The writ petition was considered by another coordinate bench on June 2. The bench was of the opinion that the writ petition is in the nature of public interest litigation. Thus, liberty was granted by the order of disposal of the said writ petition to the petitioner to file appropriate writ petition in the necessary format. The former ceased to be the operating direction as Consequent upon merger of the order dated May 22 in the later order dated June 2.
Status Report in the Abu Faizal Case
A status report signed by the Senior Inspector of Police, RAK Marg Police Station in Mumbai was filed in deference to an order dated June 12 on June 16, 2020.
On receipt of a complaint containing allegations similar to those leveled by the petitioner against the said Abu Faisal, an FIR has been registered against him by the Hyderabad city Cyber Crime Cell under section 153-A/269/188/505(1)(b)/505(2) of the Indian Penal Code read with section 67 of the Information Technology Act, 2000 and in course of investigation, it has been ascertained that the accused is presently in Dubai, UAE and is a resident of Hyderabad.
The petitioner was represented by Advocate Vivek Shukla who referred to the decision in Manohar Lal vs. Vinesh Anand given by the Supreme Court.
Submissions by the Petitioner in the Abu Faizal Case
Submissions were made that since the society cannot afford a criminal like him to escape liability, the said Abu Faizal is an offender and action under the extant laws is required to be taken against him to sub serve a social need.
The contention was also made that it is not only the duty of the police to prevent it but it is also the duty of the police to register an FIR under section 154 of the CrPC upon information to that effect having reached it, in terms of the decision of the Constitution Bench in Lalita Kumari V/s. Government of Uttar Pradesh and Other as Abu Faisal having repeatedly committed cognizable offences.
Senior Advocate Darius Khambatta representing Facebook, submitted that if this Court directs subject to the petitioner providing the URL numbers thereof; his client is prepared to remove the objectionable posts.
Google LLC filed an affidavit-in-reply wherein it is averred that the objectionable video has “already been taken down for violation of the Community Guidelines of You Tube”.
Anil Singh, the Additional Solicitor General representing the Union of India cited the provisions of the IT Act and the rules framed there.
The decision of the Supreme Court in Shreya Singhal Vs. Union of India was also put forth where though the Court had struck down section 66A of the IT Act being violative of Article 19(1)(a) of the Constitution, section 69A of such Act and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 were held to be constitutionally valid.
The Bench’s Noting in Abu Faizal Case
The bench noted that the IT Act contemplate every organization to designate one of its officers as the ‘Nodal Officer’ who may request the Designated Officer and upon such request being received, the Designated Officer in terms of rule 10 is required to block any information or part thereof if so directed by the competent court in India and comply with other rules.
Court refusing the petitioner’s prayer to direct Facebook and others to delete the said post, observed-
“Having regard to the statutory provisions noticed above and its interpretation by the Supreme Court in Shreya Singhal (supra), the relief claimed by the petitioner for direction on the police to delete the objectionable video clips/offensive messages from the social media appear to be misconceived. 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, we refrain from making any direction but leave 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 bench said that no direction to police to prevent Abu Faizal from committing a cognizable offence and posting objectionable video clips etc can be stopped.
Court noted that police cannot do so without having prior knowledge of the alleged criminal intention or power to block access and the prayer was hence, rejected.
The bench disposed of the matter noting that the Nodal officer or the designated officer may proceed with the investigation as the petitioner has already approached them and observed that,
“In a secular country like India, the citizens of different religions should feel assured that they can live in peace with persons practicing other religions. Regrettably, a trend is clearly discernible that in the name of exercise of a right, the liberty of free speech is being abused with bad faith.
The freedom that Article 19(1) (a) guarantees to every citizen should be exercised rationally and in an orderly manner for legitimate exercises including fair and constructive criticism as well as for upholding the preambular promise of securing fraternity, assuring the dignity of every individual and the unity and integrity of India.
The framers of our Constitution visualized a stable society providing sufficient scope for exercise of the right of free speech and expression. However, those exercising such a right must not remain oblivious that the exercise cannot rise above national interest and interest of the society. In the guise of exercising the right, no form of insult to any group or community disrupting public order ought to ensue.
Notwithstanding the provisions of law in vogue, it is time that the State introduces a regime of conduct with stricter norms but satisfying the test of reasonableness, in exercise of the power conferred by Article 19(2) of the Constitution, to deal with rapid rise of absolutely avoidable, uncalled for and unwarranted inflammatory posts/messages on the social media.”
