Was Shaheen Dhada punished rightly even when her post on Facebook was far from being “grossly offensive”?

The Facebook post of Shaheen Dhada has become a rallying point for citizens to defend their fundamental right of freedom of expression under Article 19 (1) (a) of the Constitution. But are we focusing on the right issues? Citizens and media have loudly condemned the Shiv Sena leader who filed the complaint and the police who filed the FIR (first information report). Some others have been agitated sufficiently to ask for an amendment to Section 66 (a) of the IT Act. Section 66 (a) provides for punishment for “any information that is grossly offensive or has menacing character”. If someone were to post vile abuses or threats continuously against a young girl, should it not constitute an offence?

Merely because some cartoons misuse and misunderstand the provisions of a law when dealing with cartoons, it does not mean we should go about changing laws. In the instant case young Shaheen had not posted anything that could even remotely qualify as “grossly offensive”, and hence the complaint filed was frivolous. The police should have recorded a non-cognisable complaint and forgotten it. Instead they made a cognizable FIR. Justice Markandey Katju has written to the Maharashtra chief minister asking him to “immediately order suspension, arrest, charge-sheeting and criminal prosecution of the police personnel responsible for arresting the women”. I think Mr Katju is being a trifle harsh on the wrong people and should also look elsewhere.

I understand that the two girls were produced before a magistrate. What is the role of the magistrate, when a person is produced before him? The only purpose for this requirement in the Criminal Procedure Code (CrPC) is to ensure that a judicial mind is applied judiciously before a remand or bail is given. The Sena leader who filed the complaint was wrong, and the police who filed the FIR was also wrong. However, it was the duty of the magistrate to have seen the gross absurdity of the charge and ordered release of the girls. The requirement of producing all arrested persons before a magistrate within 24 hours puts the responsibility on the magistrate to decide whether a prima facie case exists for giving a remand or bail. If it appears that no reasonable case exists the magistrate must refuse to allow any further detention. Since this does not happen, it leads to unnecessary harassment and piling up of cases. A magistrate must apply his mind to the matter before him and take responsibility.

Neither Mr Katju, nor citizens nor media are even questioning why the judicial check mandated by law did not work effectively. This is a very important legal safeguard against police arbitrariness or stupidity, but it does not appear to be working meaningfully. Judiciary is the guardian and monitor of the law. I wish Mr Katju, media and citizens recognized the failure of the judicial check in this case, so that the next time police slips up, the judicial process takes responsibility and a citizen is not traumatised for exercising her fundamental right.

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