The recent arrest of failed actor but super successful YouTuber and critic, Kamal R Khan, has brought the issue of social media related arrests to the fore once again. The alleged crime or offending tweets had been made two years ago in 2020 in connection with a movie starring Bollywood superstar Akshay Kumar. KRK’s arrest is only the latest of a controversial tweet related arrest and it is not likely to be the last.
In India the alleged crimes may come within the definition of obscenity as defined in the IT Act or, more commonly, promoting enmity between different groups on grounds of religion, race, place of birth etc under Section 153 A of the Indian Penal Code. In KRK’s case, he has also been booked under IPC sections 500 and 502 (defamation), and 505 (public mischief).
The word ‘tweet’ originally referred to the sound made by a small bird. In 2013 the Oxford English dictionary added the same word with a new meaning defining it as ‘a posting made on the social networking site Twitter.’ The modern version of the ‘tweet’ although mostly innocuous, like the bird’s tweet, can, in certain instances, constitute a crime. A poisonous tweet can stoke tension between communities with potentially devastating consequence. A small tweet can exacerbate or even cause a riot. Most of us would agree, irrespective of our religious or other affiliation, that it ought to be a serious crime for anyone to tweet that a particular person be killed, lynched or beheaded as the case may be.
Looking at the situation across the world, in Iran, Russia, China and North Korea, access to Twitter is banned. In the United Kingdom sending a particularly nasty or offensive tweet can be a criminal offense, and the offending party may be fined, ordered to do community service and even jailed. In the US though, by virtue of the First Amendment most posts on social media are protected from prosecution.
Many interesting and vexing questions can be raised in the context of a tweet. Most policemen in our country may not be familiar enough with the English language to judge, in certain instances, whether the author of a particular tweet really committed a crime. Trial courts judges in the country too may not sufficiently fluent in the English language to be able to judge whether the author of a particular tweet was being merely ironic, sarcastic or humorous, clearly permissible under the law, or fanning the flames of hatred between communities, which is not.
Language is such a subtle thing. A full stop here, a comma there, and the meaning completely changes. Should we then trust the police with determining whether or not a particular tweet is offensive enough to be regarded as a crime? This year Parliament’s Standing Committee on Communications and Information Technology began to review the IT Act 2020. It should consider the establishment of an independent regulatory authority to serve as gatekeeper before the police can register a case against the author of a social media post. This could ensure a degree of uniformity in the nationwide prosecution of tweets and reduce the number of politically motivated prosecutions. With laudable attempts by the new Chief Justice to clear up the apex courts backlog, the Supreme Court ought not to be spending precious time agonising over the precise intention behind a social media post.
Where a tweet is open to different interpretations, should defence summon professors of English to testify as to the precise meaning and implication of a tweet? What happens when a court in New Delhi is hearing the case of a criminal tweet originally posted in Marathi or Tamil? Since a tweet can be viewed anywhere in the country, in the world really, a tweet made by a person living in Mumbai may deeply offend a person living in Lajpat Nagar or Jhumri Telaiya.
In KRK’s case the FIR was registered by a person called Rahul Kanal from the youth wing of the Shiv Sena. Should a third party be permitted be permitted to file a complaint? In that case could we potentially allow KRK to file a similar complaint against Akshay Kumar’s wife, Twinkle, who is also not known to be pulling punches while tweeting? And if it’s a free for all, where does it all end?
Should there be a time limit for the prosecution of a poisonous tweet or post on Facebook or WhatsApp? Without a limit, we may be promoting arbitrariness and vengefulness? After all a maliciously minded authority could comb through the tweets made by a person all the way back till 2006, when Twitter first became operational in India. Surely the state too should be expected to exercise a certain degree of vigilance? After all tweets and other social media posts are made on a public platform. Should the state be permitted to sleep over an action that allegedly promotes enmity between communities?
There is a counter argument. If we do set a time limit, what happens if a two-year-old post is retweeted or shared? Is the original offence not revived? Is the person retweeting or sharing the post also guilty of a crime? A person may retweet out of friendship or accidentally press the share button. Does it matter how large a fan following the author of a particularly offensive tweet commands? Surely it should make a difference if the author of a tweet has ten followers or ten million? Does India need a comprehensive Law of Twitter and Other Social Media Posts?
In one of Shakespeare’s plays at the start of a long soliloquy Prince Hamlet asks himself: ‘To be, or not to be, that is the question.’ As prosecutions gain frequency around the world, the so-called twitterati may have to pose a question to themselves with equal seriousness: ‘To tweet, or not to tweet, that is the question.’
(Rajesh Talwar is an author of 34 books across multiple genres. He has worked for the United Nations for over two decades across three continents in numerous countries.)