BJP worker arrested for Mamata meme is free. What happens to others targeted for social media posts?

On May 14, after four days of public uproar, the Supreme Court granted bail to Priyanka Sharma, a Bharatiya Janata Party youth leader in Kolkata who had been arrested for sharing a meme of West Bengal Chief Minister Mamata Banerjee.

Based on a complaint by a Trinamool Congress member, Sharma was arrested on May 9 on charges of defamation and distribution of sexually explicit content, and under the controversial Section 66A of Information Technology Act – a charge that was later dropped. Section 66A criminalised the distribution of “offensive content” online but it was struck down as unconstitutional by the Supreme Court in May 2015. In its judgement, the apex court described it as a “draconian” provision that invaded an individual’s right to free speech.

Sharma is on a long list of Indians who have been arrested or detained for posting or sharing allegedly offensive or objectionable content on social media platforms. Many of them have been charged under Section 66A despite the 2015 Supreme Court order. In other cases, the police have invoked Section 67, which punishes publication of obscene material in electronic form, or other provisions of the Indian Penal Code.

The latest arrest took place in Mumbai on May 15. Sunikumar Nishad, 38, a doctor, was charged with outraging religious feelings after a Shiv Sena member complained to the police about his allegedly “anti-Hindu” and “anti-Brahmin” Facebook posts. He was granted bail the next day.

“In place of Section 66A, the police have been using provisions for sedition, criminal defamation, obscenity,” said the lawyer Apar Gupta, who is executive director of the non-profit Internet Freedom Foundation.

Most such arrests are made on the basis of complaints by political workers who claim to have been offended by social media posts critical of their leaders.

But after the complainants move on, what happens to the people facing long criminal trials for merely sharing a political meme or posting their views online? Their cases may not result in convictions but they are still forced to spend several years of their lives out on bail, making regular visits to police stations and courts. Their personal, professional, financial and social lives are disrupted. “Over the years, this process can be fairly traumatic,” said Gupta.

Scroll.in spoke with two people who were targeted for social media posts. Their cases are yet to be resolved and they are stuck in limbo.

‘I had to reject a job offer’

Zakir Ali Tyagi, Uttar Pradesh

In March 2017, Zakir Ali Tyagi, then 18, from Uttar Pradesh’s Muzaffarnagar town was arrested for two allegedly offensive Facebook posts. In the first, he joked about the Uttarakhand High Court according the rivers Ganga and Yamuna the status of living entities by asking, “If someone drowns by mistake, would there be a criminal case?”

A few days later, Uttar Pradesh Chief Minister Adityanath claimed that criminals and goondas would have to leave the state or face jail. In response, Tyagi posted on Facebook, “Do I dare say that Yogi has 28 cases against him, of which 22 are serious?”

Tyagi was arrested a few days later under Section 66A of the Information Technology Act. He was also charged under the Indian Penal Code’s Section 420, which deals with cheating, because he had briefly changed his Facebook profile picture to that of police sub inspector Akhtar Ali, who had been killed during an attempt to arrest suspected criminals.

When the police realised Section 66A had been struck down by the Supreme Court in 2015, they booked him under Section 66 instead. Section 66 deals with dishonestly or fraudulently causing damage to a computer or to information in a computer system, and has nothing to do with posting objectionable content.

Tyagi spent 42 days in jail. “The police mostly treated me well, but on one occasion they allowed another goon who had been arrested to beat me up,” said Tyagi, who was additionally charged with sedition once he was released on bail.

“There have been 12 hearings in my case in the past two years, but they are not really hearings,” he added. “I just go to court every few months to sign papers, because the court is yet to decide which charges they will hear from the chargesheet.”

Tyagi spends up to Rs 1,000 for every trip made to the Muzaffarnagar district court. His father, a truck driver, died in 2013 and the case is a huge financial drain on his large joint family.

To make matters worse, Tyagi’s movements have been restricted ever since he was arrested. “I had to reject a job offer at a steel factory in Gujarat because I would not get leave every two months to travel for hearings,” said Tyagi, who also resents that he cannot get a passport or make travel plans abroad because of the ongoing case.

“I wanted to become a journalist, but that dream has been crushed,” said Tyagi, who has just finished his Bachelor of Arts degree and is now hoping to study law. “When I would see anyone in a police van earlier, I would assume they were thieves, goondas or criminals. But now I know that there are innocent people among them, too. That’s why I have decided to study law.”

‘There’s no movement in the case’

Prabha N Belavangala, Karnataka

In March 2017, following complaints by members of the BJP Yuva Morcha, the Bengaluru police filed a criminal case against activist Prabha N Belavangala for sharing an allegedly “objectionable” Facebook post about Adityanath.

The post depicted Adityanath allegedly misbehaving with a woman and Belavangala claimed she had received it as a forward from someone else. “All I did was share the post and ask if the contents of the post were true,” said Belavangala, who works with a rationalist non-profit called the All India People’s Science Network. “I did not create the photo myself.”

However, the BJP youth workers claimed that Belavangala’s post depicted Adityanath in “poor light” through “obscene, morphed and tampered” images.

The police booked Belavangala under Section 67 of the Information Technology Act as well as several provisions of the Indian Penal Code relating to defamation, conducting public mischief, printing indecent matter and promoting religious enmity. She was not arrested. Belavangala responded by immediately filing a counter case against Pratap Simha, a Member of Parliament and the president of the BJP Yuva Morcha, accusing him of making derogatory comments about her.

As of now, Belavangala says both cases are stuck. “After the FIR was filed against me, I submitted my statement to the police, but there has been no movement in the case after that – no chargesheet, no court hearings, nothing,” she said. “It’s the same for my case against Pratap Simha, and I have not followed up.”

Also read: The Daily Fix: After Mamata meme, an arrest for an anti-BJP post. Is free speech in India a mirage?

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