8 december 2013
ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME
Urgent Appeal Case: AHRC-UAC-149-2013
ISSUES: Arbitrary detention, freedom of speech and expression, cyber liberty, human rights defender
The Asian Human Rights Commission (AHRC) has received information regarding the imminent threat of arrest and harassment of New Delhi based journalist, feminist activist and human rights defender Ms. Sheeba Aslam Fahmi. She informed AHRC that in August 2012, she received email from unknown source threatening her of dire consequences for expressing her opinion over social media terming those as ‘anti-national’. She filed an FIR under section 66 (A) of Information Technology Act 2000. However, the accused Mr. Pankaj Kumar Dwivedi, son of Sh M.P. Dwivedi has been discharged from all charges on October 10, 2013. Ms. Fahmi informed AHRC that she was never informed of the outcome nor she was summoned to depose her statement. The Metropolitan Magistrate (Central) has ordered action against her under section 153 (A), 153(B) and section 295 A IPC. She has recently learnt through media that a non-bailable warrant against her has been issued and she may be arrested at anytime.
Ms. Sheeba Aslam Fahmi is a reputed writer, journalist, social activist and a regular panelist in news channel debates. She uses social media as a medium to express her views and opinion as a part of her journalism. Recently she received an unidentified email colouring her writings as ‘anti-establishment’ and ‘anti-national’ and warned her of dire consequences if she does not stop. She made a formal complaint at the Jama Masjid police station in New Delhi under section 66 (A) of India’s Information Technology Act in August 2012. Consequently, a FIR (No. 47/12) was registered by the police in the case. It was found during investigation that said email was generated from the laptop of one Mr. Pankaj Kumar Dwivedi, son of Sh M.P. Dwivedi and was transmitted from the MTNL Internet connection with IP address 18.104.22.168. Mr. Dwivedi later admitted that he has sent the email to Ms. Fahmi. The message in the email reads as follows:
“Friday, August 26, 2011 9:44 AM subject **Warning*** Warning* **Warning ***Warning ***Warning* **Warning ***Warning ***Warning*** Sheeba Aslam, stop posting AntiIndian and AntiNational comments on Facebook. Stop immediately. Otherwise be prepared for it’s consequences. ***Warning*** Warning*** Warning* **Warning ***Warning ***Warning***Warning***”.
As per section 66 A of The Information Technology Act, the message is grossly offensive and criminal in intent having menacing character and the sender is liable to be charged for prosecution under section 66 (A) of The same Act. However, the defense argued that the email was sent as a comment of objection to her opinion and did not, therefore, amount as ‘information’ as provided under section 2 clause (v) of the Information Technology Act, 2000. Acting on this argument, Metropolitan Magistrate has discharged Mr. Dwivedi from the charges under section 66 (A) of Information Technology Act 2000 and observed that the postings/publication of Ms. Fahmi attract the provisions of Indian Penal Code under section 153 (A), 153(B) and section 295 A . He, then, directed the police to register a separate FIR against her and investigate the publication as published by her on social media. He also ordered the police to file the compliance report that was to be submitted by November 16, 2013.
However, Ms. Fahmi came to know this development only through media on December 3, 2013 and she was informed by the police when contacted personally that the police authorities will act on the order only after the conclusion of the election in Delhi which is scheduled on December 4, 2013.
The use of cyberspace in India is regulated through the Information Technology Act 2000, amended in 2008 and 2011. Freedom of speech and expression is constitutionally guaranteed in India. However, this protection ceases when the opinion is expressed through cyberspace. If an opinion is published in a newspaper, then it is covered by article 19 (1) (a) of the Constitution. However, if the same in posted online, it will be covered by the Information Technology Act. Any message transmitted via the cyber space is considered as ‘communication’ and not as ‘publication’.
Section 66 A of The Information Technology Act reads as follows:
“Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device,
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, hall be punishable with imprisonment for a term which may extend to three years and with fine”.
1. Urge the authorities to pass a stay order on the non-bailable warrant against Ms. Fahmi
2. Urge the authorities to prosecute the perpetrator for threatening Ms. Fahmi and violating her freedom of expression
The AHRC is writing a separate letter to the UN Special Rapporteur on the Protection of Human Rights Defenders for immediate intervention into this matter.