T’gana HC issues rules to deter misuse of law against online speech

The Telangana high court rules against automatic arrests for social media posts, protecting political criticism and requiring thorough inquiries before FIRs.

Bengaluru: Investigating authorities cannot resort to automatic arrests in cases linked to social media posts, the Telangana high court has ruled in a landmark verdict, issuing a set of guidelines for police and magistrates to “protect political criticism from criminalisation” and to curb the misuse of criminal law against online speech.

T’gana HC issues rules to deter misuse of law against online speech

In an order passed on September 10, Justice N Tukaramji ruled that the police must not mechanically register cases over harsh, offensive, or critical political speeches or social media posts unless they “incited violence” or posed an imminent “threat to public order.”

Before registering first information reports (FIRs) over social media posts, the court said, the police must ensure that the complainant is the “aggrieved person” and they must conduct a preliminary inquiry to see if the offence is made out.

The police must set a “high threshold for cases alleging enmity, insult, mischief, sedition or threats to public order and look for proof of incitement to violence or disorder,” the court said in its order, which possesses far-reaching implications.

The court found that the FIRs, registered on third-party complaints, were procedurally unsustainable, especially since criminal defamation is a non-cognisable offence that can only be pursued through a private complaint by the aggrieved person.

Noting that the posts in question amounted at most to political criticism and did not disclose elements of riot, public disorder, or obscenity, the court quashed all three FIRs. It held that the posts, though sharply worded, amounted to “legitimate political expression” protected under the Constitution.

“The impugned tweets, such as ‘Congress is the scourge…’ and ‘No Vision, No Mission…’ are plainly political criticism and satire, which do not amount to defamation or public mischief and are fully protected by Article 19(1)(a) [right to freedom of speech and expression],” the court held.

It set out detailed guidelines for police and judicial magistrates on handling criminal proceedings arising from social media posts, to ensure that similar cases are not unduly criminalised in future.

The guidelines mandate that before registering an FIR for defamation or similar offences, police must first verify that the complainant is the legally recognised “aggrieved person,” as complaints from unrelated third parties will not be maintainable unless they disclose a cognisable offence. They also direct investigating authorities to treat defamation as a non-cognisable offence triable only on a magistrate’s complaint and to avoid “automatic arrests” by following the safeguards laid down by the Supreme Court in its 2014 judgment in Arnesh Kumar vs the State of Bihar case.

In its 2014 landmark verdict, the top court established guidelines emphasising that arrests should generally be an exception, particularly in cases where the alleged offence carries a punishment of less than seven years.

The high court guidelines further mandate that investigating authorities must seek prior legal opinion from the public prosecutor in cases involving sensitive speeches, and they must close “frivolous, vexatious or politically motivated complaints” at the stage of inquiry itself.