Adequacy Of Legislation: Curbing Mobocracy In The Age Of Social Media – By Suyash Gupta & Dwij Sengar

By | October 5, 2018
Curbing Mobocracy

ABSTRACT

The spurt in the use of social media platforms has encompassed the definition of mainstream media in the country. But unregulated fake news, rumours and instigating opinions on such mainstream media platforms have challenged the trust and sanctity of media. The acts of mob lynching influenced by such information at mainstream media have posed a direct attack on the sovereignty of Indian democracy i.e. mobocracy overpowering democracy. Thus a strict regulation on curbing such menace has become the need of an hour. The essay suggests that re-examination or reconsideration of old statutes with certain amendments would suffice in regulating the issues of lynching and dissemination of false or instigating information through mainstream media in India. – Adequacy Of Legislation: Curbing Mobocracy In The Age Of Social Media – By Suyash Gupta & Dwij Sengar

INTRODUCTION

“A Country with shaken roots of democracy and rule of law can never build the dreams of a prosperous future”

In the age of rapid digitization where social media has been instrumental in exponentially increasing the exchange of information and redefining communication, we are all aware of its dark side. The anonymity of social networking platforms like Facebook, WhatsApp, interactive blogs and chatrooms coupled with a regulatory vacuum in the governance of their operation, has created a conducive environment for the growth of anti-social and criminal activities. These platforms are voraciously used to share opinions and statements backed by distorted facts to instigate and mobilize people for perpetrating criminal activities. The propagation of institutional and doctrinal intolerance[1] by such groups, whether towards certain faiths or particular actions deemed to be ‘in violation of our cultural values’, has led to a corresponding rise in mob violence. Thus, huge responsibilities rest upon the shoulders of government machinery.

The term ‘mobocracy’ is broadly defined as ‘rule or domination by masses’[2]. This includes incidences ranging from halting of parliamentary proceedings by the honourable parliamentarians[3] to the ugliest incidents of mob lynching, which has assaulted the democratic fabric of the constitution. Contrary to popular perception, mob lynching is not rare isolated incidents anymore; they have become a common phenomenon in India and states of the USA and Nigeria, more often than not influenced by instruments of religion and racist ideology[4]. While there is no concrete data to suggest that social media is the prime mode of widespread propagation of such ideologies, an analysis of the various lynching, thrashing and mass violence incidents across the country (e.g. Thiruvannamalai in Tamil Nadu, Karbi Anglong in Assam and Chittoor in Andhra Pradesh) reveals the crucial role that social media plays in pushing people over the edge.

This paper intends to highlight two issues concerned with lynching. At first, the paper suggests amendments in current legal mechanisms for the regulation of the social media. Further, it also attempts to strengthen policy framework preventing the acts of mob lynching thus safeguarding roots of justice in India.

Crucial role of democratic pillars in combating mob violence

In spite of mob lynching and lack of any explicit law, legislative and judicial pillars of democracy have come to the rescue of media from the depths of distrust. The essence of rule of law in a democracy has been reiterated by the Honorable Supreme Court (SC) in the ongoing case of Tehseen S. Poonawalla v. UOI[5], through the case of Krishnamoorthy v Shivakumar[6]. The SC  in these cases opined that the “law is the mightiest sovereign in a civil society and majesty of law cannot be tarnished simply by the fact that individual or a group take legal enforcement into their hands and punish violators as deem fit to them and against the rule of law”[7]. Further, the Honorable Supreme Court also issued certain guidelines and directed the legislature to formulate legislation to mitigate the menace of mob lynching.

Pursuant to the SC ruling, the Maharashtra government issued fresh guidelines to police administration to combat mob violence[8]. The said guidelines empower the police to shut down websites involved in the acts of propagating hate crimes and fake news. Further, a detailed track record of such lynching issues has been created and a special force has been appointed to identify repeat offenders. The Central Government also took a firm stand while demanding social media platform WhatsApp to draw effective solutions in tackling the issue of fake news and rumours on WhatsApp.[9]

Scrutinizing Indian legislation in the attempt to curb the barbarism of mob lynching  

While comprehensive regulations on mob violence exist, the problem lies in lackadaisical implementation by government bodies/agencies.  Information or opinions published on mainstream media platforms could be restricted and blocked before further dissemination and the concerned instigator could be prosecuted within the parameters of the law. Information Technology Act (IT Act) and Indian Penal Code (IPC) play a crucial role in covering such acts and grant power to the government to maintain the public order in the country via digital media platforms.

As per Section 69 of the Information Technology Act, 2008 (IT Act), if the Central and/or State governments deem fit, in order to maintain public order or to stop incitement of commission of any cognizable acts, it can direct any agency to decrypt any information which is transmitted through computer resources.[10] Further, the government machinery can also call upon any subscriber of that information to decrypt that information and provide all the technical assistance along with access to the computer resources.[11]Currently, while combating situations of mob lynching influenced by mainstream media, the government can ask any social media platform (Twitter, WhatsApp) to provide access to the information or decrypt the information on the computer resources in order to stop commission of penal offences, without violating the right to freedom of speech and expression.[12]The decryption will help the government machinery to identify the person(s) involved in spreading such fake news or rumours having the potential to cause fear in the minds of the public. Further, Section 69A[13], also provides an additional power to stop and block the public access to of any information which might cause or caused the fear or has the potency to disturb the public order in the country.

Interestingly, legislation in India has special attributions to youth which constitutes an integral part of mainstream media user throughout the country. The Young Person (Harmful Publication) Act, 1956, states that if any person intentionally and publicly exhibits any harmful publication[14]  depicting violence or commission of any offence and if such publication might or tend to corrupt a young person and encourage him or her to commit an unlawful act is liable under the said statute. In the concerned issue of mob lynching, the regulation could play a crucial role in protecting the youth from being a victim of fake news and rumours.

The recent incident of young men being lynched by a mob under the presumption of child kidnappers in Karnataka had shaken the roots of rule of law in India[15]. The insights of the incidents deliberate the circulation of fake rumour on a social media platform ‘WhatsApp’. The mob swayed by such rumours apprehended the two men offering chocolates to a pair of children as kidnappers.

Such incidents when judged on parameters of law detailed in Indian Penal Code fulfil all the necessary ingredients of section 505(1) (b) of IPC in order to prosecute instigators of such fake news or rumours.  The concerned provision defines act done by any person with the intention to make, publishes or circulates any rumours which will cause or might cause a situation of alarm or fear in minds of public and subsequently induce them to commit the offence against state or public.

Further, the act of disseminating fake rumours and instigating speeches leading to agitation by mob could be covered under Section 153 of IPC which defines any illegal act done intentionally to incite public in rioting[16]. In addition to the above provisions, the persons identified in the brutal acts of lynching could be subsumed as part of the unlawful assembly as has been laid down under section 141 of IPC[17].

 On recollecting and analyzing various incidents of mob lynching in India, one could safely deduce that plentitude of such acts was drawn on the issues of cow protection.  The rumours circulated instigate mob on the lines of religion and slaughtering and smuggling of cows. In order to prosecute such instigators, IPC had incorporated Sections 153A and Section 295A. Both of these two sections seek to protect the idea of social coexistence by prosecuting and punishing those who intentionally try to promote enmity between different class and religion or try to insult any religion.

Conclusively it is evident that the existing regulations of IPC and IT act would suffice in dealing with horrifying incidents of lynching. The discussed provisions cater to two issues. At first, the provisions of IT act to cater to the attempts of government machinery in blocking and decrypting the relevant information on mainstream media platforms. Second, the provisions of IPC act as umbrella legislation and define relevant punishments for instigators and a group of persons identified as accused.

SUGGESTIONS

Though regulations in India are sufficient in combating the gruesome acts of mob lynching, still certain amendments are requisite in order to make legislation more comprehensible and coherent with changing dimensions of media for information dissemination and issues of lynching. The suggestions are as follows-

  1. Publication, as defined, is, “Publication is an act by which some information is exhibited, displayed, disclosed or revealed before public” [18] or “Means making a work available to the public by issue of copies or by communicating the work to the public”[19]. The definition does not explicitly indicate or includes publication of any information on digital platforms and the same non-explicit nature could grant a levy to those who would otherwise be bound by it. For instance, if a person is found spreading fake news or instigating opinions on digital platforms than the said person could take a levy of implicit meanings of publication in order to escape the liabilities. Thus amendment if made to the definition stating publication as publication on digital platforms, would avoid the point of ambiguity and curl out to be a supportive instrument in regulating the acts of mob lynching or the Honorable Court can explicitly mention that publication includes digital or online publication as well.
  1. Further, it is also suggested that Section 8 of Unlawful Activities (Prevention) Act, 1967 which lays down the power of Government in notifying places for the purpose of Unlawful Activities, shall include social media platforms. The concerned amendment would target a huge menace of use of social media as a potential place to form an unlawful association.[20]On account of events of fake news and rumours leading to the violation of rule of law of India which in itself is sovereign[21], associations formed on social media platforms performing such acts should be held unlawful.
  1. Subtle understanding of Directive Principals enshrined in Part IV-A of the Indian constitution ought to be institutionalized as enforceable rights. This is well recognized by honourable Supreme Court in case of Chandra Bhawan Boarding v State of Mysore[22]. The honourable court in case opined that part IV enables the legislature to build a welfare society and the same could be achieved by implementing directive principals through instruments of law.  Certain other suggestions could also be embraced keeping in mind the sanctity of fundamental duties.
  1. It should be a duty enforceable by law on every citizen to try and save victims of mob lynching if no such danger affects his life.
  2. It should be a duty enforceable by law on every citizen to inform police authorities of such incidents as soon as possible.
  3. Burden of proof in such cases would lie upon the person so alleged[23] for not complying with the enforceable duty.

Such obligations would ease the access of police authorities as the duty-bound citizen would inform the authorities within time. Further, it would reduce the mustering of people as they would be under an influence of legal prosecution. Meaning thereby that every person in the crowd who loiters around the incident would now prefer keeping away from the incident and if failed, would be legally bound to help the victim of lynching in reasonable circumstances.

CONCLUSION 

The abrupt change in the use of social networking platforms has reshaped the idea of mainstream media in India. But fake news and rumours on such media platforms have become a root cause of mob lynching thus maligning the virtue of media democracy in the country. The essay attempts to propose legal suggestions in order to curb such menace before it dominates and completely ruin the idea of development in India.  Though honourable Supreme Court opined to draft a new legislation, however, we firmly assert that issues of mob lynching through mainstream media could be best dealt by the existing provisions of the Information Technology Act, Indian Penal Code as the effect of the new statute might entangle in legal complexities and no further legislation is required.

Towards the end, the concerned essay deliberates certain suggestions which on implementation could curb the menace of lynching and restore faith in rule of law. The essay proposes to amend the definition of publication in order to incorporate publications on digital platforms. Moreover, section 8 of Unlawful Activities Prevention Act 1967 should be amended to embrace the idea of unlawful activities on digital platforms i.e. any act done with an intention to challenge the sovereignty of the country such in case of lynching on digital media platforms could be curbed.  Besides catering to the existing statutes, the essay also suggests the enforceability of certain fundamental duties on part of citizens. It proposes to lay down an enforceable duty upon the citizens to inform police authorities as soon as possible and try to save the victim if not under any imminent danger. The intended proposition could be used as a two-way mechanism in dealing with current issues of lynching. At first, such amendments would develop the idea of fraternity in the society. Second, it would reduce mass gathering which though never intended to be a part of brutal acts of lynching, had made identification process of such accused difficult in the garb of mob violence.

-BY SUYASH GUPTA, DWIJ SENGAR

BA; LLB

Dr. Ram Manohar Lohia National Law University, Lucknow


[1] Wolfgang Hubert, Christian Responsibility and Communicative Freedom: A challenge for the future of pluralistic societies, 118,https://books.google.co.in/books?id=Ky807s6rxO8C&pg=PA118&lpg=PA118&dq=doctrinal+intolerance&source=bl&ots=dNASXUP6Qn&sig=MLtxswAkDdUhqS_WHBQWUy1TZuY&hl=en&sa=X&ved=2ahUKEwi07YKA46XdAhUFFHIKHdGJCzIQ6AEwA3oECAcQAQ#v=onepage&q=doctrinal%20intolerance&f=false.

[2]Shorter Oxford English Dictionary, vol. 1 (5th ed. 2002).

[3]Indian Parliament pepper-sprayed as MPs brawl over new Telangana state,The Guardian, https://www.theguardian.com/world/2014/feb/13/india-parliament-pepper-spray-brawl-telangana-state.

[4]Young Nigerian, lynched, burnt for snatching a bag, News24,https://www.news24.com/Africa/News/listen-and-watch-young-nigerian-lynched-burnt-for-snatching-a-bag-20180523.

[5]Tehseen S. Poonawalla v. Union of India, 2018 SCC OnLine SC 1076.

[6] Krishnamoorthy v. Shiva Kumar, (2015) 3 SCC 467.

[7]Id.

[8]Maharashtra issues guidelines against lynching and mob violence, The Hindu,https://www.thehindu.com/news/cities/mumbai/state-issues-guidelines-against-lynching-and-mob-violence/article24683058.ece.

[9]PankajDoval, Trace origin of fake messages, Whatsapp told, The Times of India, https://timesofindia.indiatimes.com/business/india-business/trace-origin-of-fake-messages-whatsapp-told/articleshow/65495167.cms.

[10]Information Technology (Amendment) Act, 2008, § 69, No. 10, Acts of Parliament, 2009 (India).

[11]Information Technology (Amendment) Act, 2008, § 69 (3), No. 10, Acts of Parliament, 2009 (India).

[12]INDIAN CONSTITUTION. Art. 19.

[13] Information Technology (Amendment) Act, 2008, No. 10, Acts of Parliament, 2009 (India).

[14] The Young Persons (Harmful Publications) Act, 1956,§ 2(a), No. 93, Acts of Parliament, 1956 (India).

[15]Karnataka Police Arrest 25 Men Over Latest WhatsappRumour-Led Lynching, Tech 2, https://www.firstpost.com/tech/news-analysis/karnataka-police-arrest-25-men-over-latest-whatsapp-rumour-led-lynching-4748601.html.

[16]India Penal Code, 1860, § 146, No. 45, Acts of Parliament, 1860 (India).

[17]India Penal Code, 1860, §141,No. 45, Acts of Parliament, 1860 (India).

[18]Joseph M. Puthussery v. T.S. John, (2011) 1 SCC 503.

[19] The Copyright Act, 1957, §3, No. 14, Acts of Parliament, 1957 (India).

[20] India Penal Code, 1860, § 2 (p), § 2(o), No. 45, Acts of Parliament, 1860 (India).

[21]Krishnamoorthy v. Shivkumar, (2015) 3 SCC 467.

[22] Chandra Bhavan Boarding v. State of Mysore, (1969) 3 SCC 84.

[23] Centre mulls changes in IPC to deal with mob lynching, The Hindu, https://www.thehindu.com/news/national/centre-mulls-changes-in-ipc-to-deal-with-mob-lynching/article24488474.ece.


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