Explainer: Why the Mumbai police charges against AIB seem to have a weak legal basis

The Mumbai police have lodged a First Information Report against the All India Bakchod group of comedians for posting an image that made fun of Prime Minister Narendra Modi, the police said in a tweet on Friday.

The police have invoked Section 500 of the Indian Penal Code, which deals with criminal defamation and prescribes a jail term of two years for those convicted, the Hindustan Times reported.

The police have also included Section 67 of the Information Technology Act, which pertains to the dissemination of obscene material on the internet and carries a jail term of three years on the first offence and five years for a repeat offence, the paper reported.

While it is not clear who has made the complaint, at first glance, the decision to invoke these sections seems arbitrary, lawyers said.

The controversy

The controversy erupted on Twitter on Thursday when a user named Reeteesh Maheshwari took offence to a morphed picture of Modi posted by the comedy group on Twitter and Facebook.

The image was split into two: one side was a photograph of a man who looked like Narendra Modi standing on a railway platform, while the second image used a Snapchat filter to depict the prime minister with canine features. The picture was titled “Dog filter is lyf.”

One Twitter user tagged the Mumbai police in a post with the screenshot of the picture and urged them to act. The police promptly responded by saying that the picture had been forwarded to its cyber wing.

Following this, the All India Bakchod account received a barrage of angry tweets from users critical of the image, prompting the group to take it down. This did not give the group any respite. Congress supporters on Twitter accused Tanmay Bhat, one of the members of the comedy group, of hypocrisy. They said that the group lacked the spine to stand up to the Bharatiya Janata Party even though they often took digs at Congress leaders like Rahul Gandhi. An angry Bhat responded by claiming that it was his prerogative to put up content or pull it down.

Now, a day later, it seems that the Mumbai Police have taken cognisance of the complaints and have lodged an FIR against the group.

Inaccurate charges

Lawyers say that several questions arise out of the FIR. First, who was the complainant? Did the Mumbai Police convert random tweets into a complaint to book the comedy group. If so, invoking Section 500 is significant.

According to lawyer KM Vijayan, the police cannot entertain defamation complaints from private parties if the complainants are not the ones allegedly defamed by the content.

Under the Criminal Procedure Code, which governs criminal justice in India, when public authorities like a Prime Minister or a Chief Minister are the subject of defamatory acts, the public prosecutor could be asked to file a case on their behalf. However, private persons cannot take up the role of a public prosecutor. The courts are likely to look askance upon cases “registered on the basis of random private complaints” Vijayan said.

Besides, defamation was not a cognisable offence for the police to file a case on its own.

Next comes the invocation of Section 67 of the Information Technology Act. This provision states:

“Punishment for publishing or transmitting obscene material in electronic form. Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”   

The curious thing in the All India Bakchod case is how portraying Modi with dog ears could be considered obscene, given that the law clearly states that obscenity relates to material “which is lascivious or appeals to the prurient interest”. The Mumbai Police could have referred to the Oxford dictionary, which defines “lascivious” as “feeling or revealing an overt sexual interest or desire” and “prurient” as “having or encouraging an excessive interest in sexual matters, especially the sexual activity of others.”

The Supreme Court has often dealt with cases where obscenity laws have been invoked against artists. Quoting the apex court in the 1996 case Amitabh Bacchan Corporation vs Om Pal Singh, Chief Justice MJ Rao of the Delhi High Court had this to say on defining an act of obscenity:

“.. it must be established that the tendency was to stir or arouse deep sexual passion or lewdness, or pander to lascivious or sexually precocious minds. That is not so in the case of proof of indecency. A vulgar thing is not necessarily obscene. Vulgarity arouses merely feelings of disgust and revulsion or boredom or shock, but does not have the effect of depraving or debasing or corrupting the morals whereas obscenity has the tendency to open minds to such influences” 

Going by court’s reasoning, the morphed picture of Modi could at best be termed “vulgar” or “indecent” and not “obscene”.

The FIR also sets a dangerous precedent where the police first takes cognisance of tweets and then moves in to file cases that have serious implications for freedom of expression.