A Gross Misuse of the IT Act by Mumbai Police

Registration of a case against a citizen for posting the Chief Minister’s picture is totally wrong and untenable

The dust has barely settled on the controversies over the misuse of Section 66A of the Information Technology Act that it seems the police have found ingenuous ways to misuse the law’s other provisions. The threshold level for registering cases especially under the IT Act, appears to be extremely low for the Indian police.

The latest in this list of abuses is the registration of a case by the Oshiwara Police in Mumbai against one Ajay Hatewar for offences of defamation and under Section 67A IT Act for allegedly defaming Maharashtra Chief Minister Devendra Fadnavis. The news reports indicate that the “dastardly” act appears to be the posting of an old picture of the CM and his family enjoying their vacation on a yacht, with intent to defame him by claiming that the picture was taken during the CM’s recent visit to USA.

This case highlights the police’s abject ignorance with respect to the provisions of the IT Act and their servility in registering a case merely because it pertains to a political bigwig. The very same Maharashtra police would perhaps not even entertain a genuine grievance under the very same Act even if it pertained to offences against women.

Misuse of power

Here’s why registration of this case ought to raise everyone’s hackles more so than for the multifarious cases registered under Section 66A in its heyday.

First, legislators in their wisdom have rightly categorised defamation, punishable under 499 & 500 IPC, as a non-cognizable offence i.e., the police cannot register a complaint filed for defamation. Only a magistrate’s court can entertain complaints for the offence. Further, a BJP worker or party leader cannot file a complaint for defamation of their CM, irrespective of how anguished they are. Only the victim of defamation i.e., Fadnavis or his family may file a complaint, due to the bar under Section 199 of the CrP.C. To use police powers for registration of a FIR in this case is, therefore, an example of the absolute and undiluted misuse of power.

Such misuse is further highlighted by the use of S.67A of the IT Act to provide the police with the power to register the complaint. This section makes publishing or transmitting a sexually explicit act or conducting (pornography) through electronic form an offence. It is no one’s case that the photograph allegedly circulated on the WhatsApp messenger service or through Twitter was either pornographic or sexually explicit. It is obvious that the police have added this section to make the complaint a cognizable one – i.e., that which the police can register. To say this is abuse of power is putting it mildly.

It may be argued that taking a photograph of a person without his consent or circulating it may amount to violation of privacy. It is significant that such a violation of privacy is not an offence in India. Section 66E of the IT Act only makes capturing, publishing or transmitting images of the “private area of a person” without his consent an offence. “Private area” is specifically defined in the explanation to that section and the details published of the photograph on the yacht do not seem to indicate that the case even remotely falls within this definition.

The Maharashtra government is being dragged into petty squabbles and debates on a daily basis. It does not need another fiasco to tarnish its image. Misuse of law and of the police machinery, which ironically is intended to protect the citizens, is a first sign of failure of democracy. What makes this case particularly worrisome is that the misuse of the law stems not from any ambiguity or vagueness in the provision or enactment but from the systemic collapse of the law enforcement machinery. It may now be time for the courts to look beyond merely striking down provisions of certain laws to ensuring strict adherence to the rule of law.

N.S. Nappinai is a Mumbai-based advocate