Earlier this month, the founder and former director of the feted Haji Public School in Jammu, Sabbah Haji, was made to sign a bond for keeping peace for six months by the local executive magistrate for sharing a post on her personal social media account referring to the late General Bipin Rawat as a 'war criminal'. While the post may be considered by some as distasteful and offensive, it did not warrant any action under our criminal law, writes VINEET BHALLA.
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A celebrated educationist from Doda district in Jammu, Sabbah Haji, was reportedly "summoned and detained" by the local police on December 13, made to report to the police station every day for the next four days, and made to sign a surety bond afterwards under Sections 107 and 108 of the Criminal Procedure Code (CrPC) after she shared a post on her personal Instagram account in which she referred to the late Chief of Defence Staff General Bipin Rawat as a 'war criminal'.
The bond order was made against her by Doda executive magistrate (EM) Shabir Ahmad, according to which Haji would be kept "under surveillance for six months and action can be initiated against her if she repeats the act."
As per section 107 of CrPC, a person "likely to commit a breach of peace or disturb the public tranquillity" may be made by an EM to execute a bond for keeping the peace for any period not more than a year. As per section 108, an EM may make a person execute a similar bond for good behaviour for any period up to a year for disseminating, attempting to disseminate, or abetting the dissemination of any matter that is seditious, obscene or meant to criminally intimidate or defame a Judge discharging their duties.
“Referring to the late General Rawat as a 'war criminal' in the aftermath of his tragic demise may certainly be considered as distasteful, offensive or even defamatory by several persons, but sharing such a post on one's personal social media account is not sufficient to attract sections 107 and 108 of the Criminal Procedure Code.
Haji's shared post had generated widespread criticism against her, as well as the non-profit Haji Public School, an acclaimed English-medium, co-educational institute for students from kindergarten up to Standard X that she had co-founded in the Breswana village in 2009 to bring education to a remote and isolated part of the region, and was serving as a Director and teacher of. A police complaint was lodged against her by a local Bharatiya Janata Party youth wing leader for "her involvement in Anti-National Act" which supposedly led to her being summoned by the police, and a complaint was also made with the Jammu and Kashmir School Education department seeking suspension of Haji Public School's registration. As a result, the school swiftly announced that Haji was no longer officially associated with it, and denounced her social media post as "distasteful".
Referring to the late General Rawat as a 'war criminal' in the aftermath of his tragic demise may certainly be considered as distasteful, offensive or even defamatory by several persons, but would sharing such a post on one's personal social media account be sufficient to attract sections 107 and 108 of CrPC? Here is why the answer is indisputably no.
When can section 107 of CrPC be invoked? The Kerala High Court expounded on the application of section 107 in M.V. Santhosh vs. State Of Kerala (2014). It held that:
"The breach of peace must be iminent [sic] to justify action under Section 107. The information about past conduct or wrongful act of the past must not be remote or isolated, must be relatable to the present apprehension in the sense that, it must have some relevance to the apprehension of likelihood of breach of peace or disturbance of public tranquility. [sic]"
There is nothing in the public domain to suggest that Haji has a record of past wrongful conduct. She is, by all accounts, an outstanding educator, who returned to her ancestral village of Breswana from the comfort of a professional career in media in Bangalore in 2008 and started the Haji Public School, for which she won the L'oreal Paris Femina Award 2013 for Education and the Jammu and Kashmir State Award for Social Reforms and Empowerment in 2017.
The high court further noted in M.V. Santhosh that "while initiating proceedings under Section 107 of Code of Criminal Procedure, the Magistrate must first pass an order under Section 111 of Code of Criminal Procedure stating the nature of information received, the relevant factors which influenced the mind of the Magistrate to form an opinion that the counter petitioners are likely to cause iminent [sic] breach of peace and public tranquility [sic] in a particular place and the probable period during which it is likely to disturb peace or tranquility [sic] in a particular locality and in order to prevent the same, it is necessary to take preventive action against them and also the period of bond for good behavior [sic] has to be executed etc., has to be explained in the order itself."
Was there an imminent risk of breach of peace and public tranquillity in Doda merely due to Haji's sharing of the impugned social media post that swayed the EM towards passing an order for bond for good behaviour? The Supreme Court has held in a catena of judgments that peace and public tranquillity is synonymous with public order and public safety.
The domain of public order was further elaborated upon by the Supreme Court in Amiya Kumar Karmakar vs. The State of West Bengal (1972) thus:
"[The] true distinction between the areas of "law and Order" and "public Order" lies not merely in the nature of quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case, it might affect specific individuals only, and therefore, touches the problem of law and order only, while in another it might affect public Order."
“The Supreme Court has affirmed that the discussion and even advocacy of views that may be perceived as annoying and grossly offensive is not an offence under the IPC, and is protected by the fundamental right to freedom of speech and expression, unless the expression of such views may lead to imminent public disorder.
This brings us to the crux of the matter. How can a post shared on one's private social media account, visible only to one's friends and followers on that social media platform, have the potential to affect public order? How did the EM make up his mind that the reach upon society of the shared Instagram post was such that it would disturb peace and tranquillity within his jurisdiction?
The order passed by Doda EM Ahmad is not available in the public domain, and there is nothing available in media reports on this matter to show what the reasons and the information were on the basis of which he passed the order against Haji.
It is worthwhile to remember that a Constitutional bench of the Supreme Court cautioned, in Madhu Limaye & Anr. vs. Ved Murti & Ors. (1970), while upholding the constitutionality of section 107, that since the liberty of the person is interfered with on the basis of mere opinion of the Magistrate regarding the likelihood of wrongdoing, rather than an actual wrongdoing, the provisions of Chapter 8 of CrPC must be strictly followed to prevent any harassment.
One of the key elements of section 107 and its judicial interpretation is the application of mind by the EM to reach the subjective satisfaction that the breach of peace and public tranquillity is likely. As summarized by the Kerala High Court in M.V. Santhosh:
"The purpose behind the initiation of proceedings is that there is an apprehension in the mind of the authorities that a particular person or set of persons is/are likely to involve in certain activities which is likely to create breach of peace and disrupt public tranquility [sic] in a particular place and presence of such persons in that place itself will be sufficient for that purpose and it is in the public interest that has to be prevented and for that purpose the proceedings will have to be initiated on the basis of the information received by the Sub Divisional Magistrate from the police or from other reliable sources and on that basis, he will have to satisfy the existence of such iminent necessity to initiate proceedings against that particular person and called upon to execute bond on good behaviour for a particular period so as to prevent that person causing any breach of peace or public tranquility [sic] in a particular place at that particular time."
It is patently clear that a mere social media post does not fit this strict criteria of the existence of imminent necessity by her sheer presence to initiate proceedings against Haji. By not following the provisions of section 107 strictly, the EM has proceeded against Haji in precisely the manner that the Supreme Court warned against in Madhu Limaye.
The Supreme Court had expressly clarified in The Superintendent, Central Prison, Fatehagarh vs. Ram Manohar Lohia (1960) that restrictions on the freedom of speech and expression may be imposed to protect public order only when there is an immediate link between speech and public disorder. Lawyer Rahul Machaiah has explained that "[i]t is unconstitutional to impose restrictions on a person's freedom of speech based on 'far-fetched' and 'hypothetical considerations' regarding the possibility of public disorder."
The relevant portion of section 108 of CrPC covers the dissemination of any content that is hit by Sections 124A (sedition), 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 153B (Imputations, assertions prejudicial to national-integration), 292 (Sale, etc., of obscene books, etc.), or 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code (IPC).
“How can a post shared on one's private social media account, visible only to one's friends and followers on that social media platform, have the potential to affect public order? How did the EM make up his mind that the reach upon society of the shared Instagram post was such that it would disturb peace and tranquillity within his jurisdiction?
Since the impugned post doesn't refer to religion, race, place of birth, residence, caste or language of any group of persons, or contain anything obscene as per the content of section 292, it won't attract sections 153A, 153B, 292 or 295A.
As far as sedition is concerned, as we have repeatedly reminded in multiple pieces on The Leaflet, the Supreme Court clarified, in its landmark judgment in Kedar Nath Singh vs. State of Bihar (1962) that in the absence of incitement of violence, the offence of sedition cannot be made out.
Since no incitement of violence can be reasonably made out in the sharing of a social media post calling General Rawat a war criminal, and no violence actually occurred either in Doda or elsewhere in the country due to the post being shared, it is hard to understand how EM Ahmad formed the opinion that there is sufficient ground for proceeding under section 108 of CrPC against Haji, as required by the provision.
The Supreme Court had affirmed in Shreya Singhal vs. Union of India (2015) that the discussion and even advocacy of views that may be perceived as annoying and grossly offensive is not an offence under the IPC, and is protected by the fundamental right to freedom of speech and expression, unless the expression of such views may lead to imminent public disorder.
As I have written previously, there is a material difference between speech and expression that is annoying, unlikeable, distasteful, even offensive, and speech that constitutes offences under our criminal law framework. Executive magistrates ought to be aware of this difference, and must exercise caution in proceeding against individuals under laws meant to tackle actual threats to public peace and tranquillity, on the basis of complaints from politically-motivated, jingoistic complainants. Otherwise, they become agents in the chipping away of our constitutionally guaranteed free speech rights and of our descent towards becoming an illiberal State.
(Vineet Bhalla is a Delhi-based lawyer, and Assistant Editor at The Leaflet. The views expressed are personal.)