There can be only one response to the patently illegal action of Maharashtra police in arresting two young women for exercising their constitutional right to free speech and expression on Facebook: the officers and personnel involved must be made an example of. They should face the full force of the law, leading to the maximum penalty for wrongful arrest, illegal restraint and confinement. Only then will the message go out that trampling on constitutional freedoms will invite severe consequences. Their illegal act was made worse by the craven manner in which the police kowtowed to a violent lumpen group in Palgarh, Thane, which found the Facebook comment by one of the women on the Mumbai shutdown following Bal Thackeray’s death, and its endorsement by her friend, objectionable. What stands out in this episode, and similar ones earlier, is the readiness of the police to make arbitrary arrests and cloak their censorial actions using a combination of Indian Penal Code sections that have no place in a free country, and the infamous Section 66A of the Information Technology Act which deals with offensive messages. It mattered little to them when using Section 505(2) of the IPC on promotion of hatred, ill-will or enmity, that their case grossly fails the test of mens rea, or intent. After all, what can be illegal about expressing an opinion about so public an event as the complete shutdown of the country’s financial capital?
The rise of community websites as networks of hope for the average citizen is obviously discomfiting many in authority. The capacity of the medium to name, shame and embarrass far exceeds the ability of the high and mighty to control it. Their response has been to use the police to settle scores with some, and thus send out the message to the majority. Brazen misuse of the power to arrest continues, because there is no significant penal outcome. There are clear Supreme Court guidelines on making an arrest, which have been blatantly violated in the case of the ‘Facebook women’ and many others before them. As the court pointed out in Joginder Kumar vs State Of U.P., an arrest cannot be made simply because it is legal; the police officer must be able to justify the act. The Palgarh police stand naked in the eyes of law on this count. They have no justification for what they did and are prima facie contemnors. As a nation, India must worry about the rapidly shrinking space for freedom of speech and expression, and act resolutely now. Section 66A of the IT Act which nullifies constitutional free speech guarantees must go. Equally, Maharashtra must be compelled to restrain the Shiv Sena’s proclivity for violence towards people with a counter view.