Hyderabad: If content that is defamatory or obscene is posted on a social media platform, a disclaimer claiming that it is a ‘personal opinion’ will not save the writer of the post or article.
Legal experts say when the content is written or shared or forwarded to a third person or group of people in any form it is considered to be a publication and there is nothing like ‘personal opinion’. However, the police can book a case or courts take cognizance only when the content is defamatory or obscene or incites violence or contempt of court.
If the content is non-defamatory or non- obscene, action taken by the government or police would amount to curbing freedom of expression of any citizen be it a private person or a person holding a public office.
The sacking of AP Brahmin Corporation chairman, I.Y.R. Krishna Rao, a former chief secretary has once against kicked off a legal debate on the freedom of expression. Mr Krishna Rao claims that his content (which was critical of the government) shared on his FB page is a personal opinion. Experts say he has a right to criticise the government and that is not an offence as long as the content is not defamatory or is not in violation of the law.
Central Information Commissioner Prof. Madabhushi Sridhar said, “Any content is subject to law. The content decides and not the form of publication. It makes no difference whether it is a printed paper or public meeting or social media platform. Critical analysis is not an offence. Anyone can express their opinion.”
But, he adds, there are civil services conduct rules for the All India Services, which says government shall not be criticised. “However, these rules itself are unconstitutional. There are rules for subordinate employees too,” he says.
In the united Andhra Pradesh, in 1997, a constable, G. Mohan Rao, had written a book ‘Khaki Bhatukulu’ (Plight of a policeman) in which he highlighted how ordinary policemen suffer in the department.
The AP government had served him a show- cause notice asking why action can’t be taken against him for violating APCS Conduct rules. Rule 13 of the APCS (Conduct) of 1964 says: “No government employee shall, without the previous permission of the government, publish any book which is not purely of a literary, artistic or scientific character.”
Mr Sridhar said, “In this particular case, Mohan Rao filed a write petition in the then AP High Court stating he has fundamental freedom of expression under Article 19 A. The High Court upheld it. No rules can stop a government employee expressing his opinions.”
In the case of Mr Krishna Rao, who is chairman of the Brahmin Corporation, the service rules do not apply.
“Constitutional law is supreme,” explains Mr Sridhar. “In the order it is natural law followed by constitutional law, statutory law and then rules and regulations and then last comes the code. Freedom of Expression is originally a natural right, which is constitutionally guaranteed by Article 19 A. Freedom of Expression is in the top two rights and it cannot be undermined. Section 499 of the Indian Penal Code defines publication as showing it to a third person. There is no publication if it is a letter between two persons. In any case, form of publication is not an issue, it's the content that shall be examined. If it is not defamation or contempt of court, nobody can stop an opinion from being expressed. Article 19(2) restricts freedom of expression regarding sovereignty, defamation, inciting offences and so on. If anyone is not doing that, no one can stop him expressing his opinion.” The Supreme Court, too, has struck down the draconian section 66A of the IT Act that has been misused by governments.
Senior advocate Ashok Ram Kumar, an expert in cyber crimes and digital forensics, explains that the Supreme Court said that provisions of section 66 of the IT Act are too wide and struck it down. “After the section was struck down there has been a huge rise in derogatory comments made on social media. When certain comments are made on social media against the Prime Minister, the cops apply the Indian Penal Code and arrest him. In this particular case of Mr I.Y.R Krishna Rao, there is no defamatory content.”
A Hyderabad cyber crime officer said, "We are filing cases under 67 of the IT Act when the content is obscene. There is a procedure to file defamation case under section 499 and 500 of the IPC. Police can't directly book cases under defamation. A person has to approach a magistrate and file the complaint. The magistrate can either refer the complaint to the police or take cognizance himself and record the statement and conduct the trial. The services rules are an administrative issue."
What the law says
Article 19A of the constitution provides freedom of speech which is the right to express one’s opinion freely without any fear through any form.
Section 7 of The All India Services(conduct) rules 1968.
No member of the service shall, in any form anonymously, pseudonymously make any statement of fact or opinion, which has the effect of an adverse criticism of any current or recent policy or action of the Central or a State Government. Section 17 of AP CS conduct rules 1974.
No Government employee shall, by any public utterance, written or otherwise, criticise any policy or action of Government or any other State Government the Central Government; nor shall he participate in any such criticism.
