Junaid Mev’s case is a textbook example of how poorly law enforcers understand digital crime and culpability. And, of how the law itself often fosters such poor understanding. The 21-year-old ‘admin’ of a WhatsApp group has been in jail since February over an objectionable forward sent by a group member. Mev, a graduate student in Madhya Pradesh’s Rajgarh district, was arrested following a probe into the complaint against the forward; the person who had forwarded the message, then a juvenile, had also been arrested. Mev was not only charged under the IT Act, but also under IPC Section 124 A (sedition) and 295A (deliberate and malicious acts, intended to outrage religious feelings of any class). It is jarring that the authorities showed little appreciation for the fact that a WhatsApp admin doesn’t really have any power to regulate content, even when it is objectionable. Even if one were to assume that it is okay to hold the admin culpable for forwards in the group, Mev had become the admin well after the case had been flagged, that too only because of the platform’s design. Such shoddy police work shows how laws that provide wide room for interpretation lend themselves to misuse.
Both the IT Act as well as the sedition law are often misapplied by ill-trained police personnel, given the subjective language of these laws. They have also been used to punish those with differing political opinion, especially when the messages/posts concern political leaders. From the case of the Thane girls—though the Section 66A of the IT Act under which they were charged was later struck down by the Supreme Court—to the case of Krishna Sanna Thamma Naik, the admin of a WhatsApp group who was arrested last year by the Karnataka Police for an objectionable message that was shared in the group by another member, instances of abuse abound. Anti hate-speech laws and anti-public mischief laws are also being liberally applied against WhatsApp admins, The Wire points out, without any real ground for these charges to be applicable—in July 2018, two WhatsApp admins were charged under Section 505 (1) for communal images getting shared on the group. The Madhya Pradesh police, in Mev’s case, ought to have paid heed to the Supreme Court’s warning against misuse of the sedition law—the SC had said that sedition charges were to be benchmarked against the limits on applicability set in the Kedar Nath judgment.
To be sure, it is relatively easy to spark communal tensions, and even lynchings, through malicious forwards/posts/messages on WhatsApp or social media. While this means both, platforms like WhatsApp as well as the government machinery, need to figure out ways to check spread of malicious content, this has to be done carefully. WhatsApp cannot, for instance, be asked to disclose data without specific court orders and, despite what the government is asking, it cannot possibly figure out who is sending rumours and report this to the authorities—and there is the issue of whether it can even snoop on messages given they are encrypted. There is also a need to sensitise law enforcers on determining culpability to ensure that no one is unduly charged. In the present instance, there was the need to establish criminal intent—what’s worse, Mev, as has been contended by his family, became the admin after the objectionable forward was first flagged. Arresting a mere WhatsApp admin under non-bailable charges, especially in such dubious circumstances, smacks of tyrannical policing.