KOLKATA: The 6 December arrest in Rajasthan of a spokesman of the West Bengal ruling party for a tweet that used a falsified document to criticise Prime Minister Narendra Modi is the latest instance of selective criminalisation of misinformation in India.
On 8 December, Saket Gokhale of the Trinamool Congress (TMC) was rearrested hours after he got bail, two days after he was arrested by the Gujarat police in Jaipur, Rajasthan. He had arrived there from New Delhi, where he lives, accused of sharing fake news and criticising Modi over the collapse of a pedestrian bridge in the town of Morbi, where 135 people died on 30 October 2022.
On 6 December, a magistrate's court in Ahmedabad remanded Gokhale to two days’ police custody after he was arrested on charges of spreading misinformation over Twitter.
Several from Modi's Bharatiya Janata Party (BJP) have consistently shared fake news and misinformation on social media (here, here, here, here and here) with no consequences, while journalists, politicians, dissenters, and others who criticised the BJP and Modi's government or merely reported or fact-checked misinformation have faced criminal cases, as Article 14 has reported (here, here, here and here).
“Nothing but an intention to teach a lesson to an Opposition political activist can explain the arrest of Mr Gokhale when he could, instead, have been summoned for an inquiry,” an editorial in The Hindu said on 8 December. “This is one of those cases in which arrest is obviously avoidable, even if the government of the day is seriously aggrieved by the purported falsehood in the claims he shared on Twitter.”
In contrast, managing director Jaysukh Patel of Oreva, the company responsible for the repair and maintenance of the Morbi bridge, has not been arrested or questioned. The Gujarat police have arrested nine employees, including security guards and ticket clerks.
“The irony of the situation is that my tweet was on Morbi,” said Gokhale, speaking to reporters while the police were taking him to court in Ahmedabad on 6 December. “I have been arrested, but the owners of the Oreva company have not been arrested yet. That just shows the priority of the government.”
He offered no comments when reporters asked him about the charges of peddling fake news.
Ritzu Ghosal, an advocate and member of the All India Congress Committee, asked how the police could arrest Gokhale without issuing a notice of appearance under section 41A of the Code of Criminal Procedure 1973, made mandatory by 2022 order of the Telangana high court for all cases involving a maximum punishment of up to seven years.
Police, Lower Courts Aid Criminal Action
A raft of criminal charges can be used against opinion on social media in general and misinformation in particular, but it is up to the police to decide if legal action is required at all and for courts to vet such action.
But, as lawyers and other experts said, the police and courts have, instead of dispassionate evaluation, often sided with and carried out the agenda of parties in power in states ruled not just by the BJP but others, including the TMC.
Indeed, the TMC in West Bengal in 2012 arrested university professor Ambikesh Mahapatra and a Bengal Congress spokesperson Sanmoy Banerjee in 2019 for social media posts criticising chief minister Mamta Banerjee. In June 2022, the state police went to Goa to arrest YouTuber Roddur Roy for abusing the chief minister and charged with a series of crimes, including IPC sections 153 (wantonly giving provocation with intent to cause riot) and 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence) on him.
Several countries have promulgated new laws to deal with misinformation and disinformation spread through the Internet. Still, those laws have often been used to block free speech and criticism, as in Bangladesh, Singapore and Malaysia, said Prateek Waghre, policy director at the Internet Freedom Foundation, a think tank.
In India, the existing statutes in the CrPC and the Information Technology Act, 2000 have been used the same way, said Waghre, who added that since social media posts were subjective, opinion is a grey area since they may “neither be true nor false”.
“Laws are generally written in such a manner that there is a scope for subjective interpretation,” said Waghre. “Therefore, people are getting arrested for posting opinions, which the police are interpreting as misinformation.”
Waghre agreed that there were concerns about the role of misinformation, “creating confusion in times of uncertainty and leading to violence in some cases”, but he said that there was “no discernable basis” for criminal action, except that in most cases, those who criticised the ruling party got arrested.
“Law and order being a state subject, the police in states target opposition leaders and journalists critical of the government,” said Waghre. “The degrees vary, but the tendencies exist in all parties.”
Similar arrests have been reported in states ruled by other parties, but the largest number of cases and pursuit of criminalisation for opinion over social media have been reported from BJP-ruled states or in Delhi, where the police report to the union home ministry.
That was evident when the police raided the homes of four editors and the business head of the independent website, The Wire, after it took down a series of stories that alleged how BJP spokesman and chief of its IT cell Amit Malviya exerted significant influence over Meta’s content removal practices.
On 23 October, The Wire retracted the stories when it found they were based on fabricated documents. On 29 October, the Delhi police registered a first information report (FIR) against five members of The Wire. The raids came within 48 hours.
In contrast, the volume of fake news from and lack of any retributive action against those from the BJP is so common that India’s fact-checking agencies do not ordinarily keep count, as Article 14 reported on 11 November 2022. Factchecker.in, a fact-checking website, once counted misleading and untrue claims made by Prime Minister Narendra Modi and found 43 over five years to 2019.
Such selective criminalisation has been particularly evident in India’s most populous state, Uttar Pradesh (UP), ruled by the BJP since 2017.
The Cases Against Mohd Zubair & Rohit Ranjan
The most recent example of selective criminalisation in UP was the 23-day custody of fact-checker Mohammed Zubair of Alt News over June and July 2022 before being granted bail by the Supreme Court.
“Zubair has been one of the most prominent and trustworthy fact-checkers in the country, and he was framed on ridiculously false charges because he did his job the right way,” said Ghosal. “This alone shows how much the BJP actually cares about dealing with misinformation.”
After his initial arrest on 27 June 2022, six FIRs against Zubair emerged in UP, most filed between 2021 and June 2022 but lying dormant, including three for an accurate fact-check he did in 2021 of a modified image of a mosque shown as being bombed.
The charges in these six cases pertain mainly to “promoting enmity” and “deliberate and malicious acts intended to outrage religious feelings”, but different police stations sought custodial interrogation for what his lawyer Vrinda Grover then called an “omnibus investigation”: three police stations issued 91 notices to Alt News seeking their entire records and accounts.
In contrast to the UP government’s dogged pursuit of Zubair was the chain of events that unfolded after Rohit Ranjan, an anchor with the pro-BJP television channel Zee News, was booked on 5 July for hosting a news show using a doctored video.
The video, in which Congress leader Rahul Gandhi supposedly referred to those accused of murder in Rajasthan’s Udaipur as “children”, was circulated by BJP MPs Rajyavardhan Singh Rathore and Subrat Pathak, among others.
FIRs were lodged against Ranjan in Congress-ruled Rajasthan and Chhattisgarh and one in Uttar Pradesh by his channel for reasons that soon became clear. Ranjan had apologised for telecasting a doctored video, and the channel had withdrawn the programme.
But on 5 July, when Chhattisgarh police armed with a warrant of the arrest reached Ranjan’s home in UP to take him into custody, the UP police promptly arrived at the scene.
The UP police stopped their Chhattisgarh compatriots and took Ranjan into custody in connection with a case filed minutes before, only to release him on bail on the same day.
On 7 July, The Quint reported that the Chhattisgarh police were stopped from carrying out their arrest on more serious charges so the UP police could take custody of Ranjan for a milder charge.
The FIR in Chhattisgarh was filed under IPC sections 153A (promoting enmity between different groups), 295A (deliberate and malicious acts intended to outrage religious feelings), 467 (forgery), 469 (forgery to harm reputation), 504 (intentional insult), three of them non-bailable and carrying jail terms up to 10 years.
The FIR in UP quoted only section 505 (2), which allows a maximum punishment of imprisonment of up to five years.
Experts agree that misinformation is a threat that requires to be addressed.
“Fake news or misinformation has emerged as a major threat to social stability in a multi-cultural and multi-structural country like India,” said Bivas Chatterjee, a Kolkata-based lawyer specialising in cyber laws.
However, there is no agreement on the best way to address misinformation, as Gokhale’s case reveals.
The Case Against Gokhale
The Gujarat police action against Gokhale came following an FIR lodged with the cyber crime cell of the police in Ahmedabad by a BJP official on 1 December, allegedly misinformation involving Modi’s 1 November visit to Morbi.
Gokhale was booked under sections 469 (forgery for harming reputation), 471 (using as genuine a forged document/ electronic record), 501 (printing or engraving defamatory matter), and 505(2)(b), for "statements conducing to public mischief" of the Indian Penal Code (IPC) 1860.
The IPC sections against Gokhale provide jail terms of up to seven years.
The TMC called the arrest “an act of intimidation” by the BJP and alleged that he was arrested “for questioning Govt's ineptitude in the Morbi incident.”
“This is very bad and sad,” said Banerjee, who too was in Rajasthan, visiting the religious site Ajmer Sharif on Tuesday. “Saket is a very important and bright man. He is also very popular on social network (sic). He has made no mistake.”
A senior TMC leader told Article 14, requesting anonymity, that Gokhale had gone to Rajasthan to meet Banerjee on Tuesday.
“Cyber crimes need to be looked into, especially those that endanger national security or indulge in personal attacks should not be allowed,” she said on 6 December, and added, “But the Morbi bridge collapse was a major incident. He only quoted a news report. I condemn this vindictive attitude (of the ruling party).”
‘This Claim is #Fake’
The police and the union government said a newspaper clipping that Gokhale shared was fake. A fact-check section by the government of India’s Press Information Bureau had, on 1 December, said Gokhale’s 30 November tweet was spreading misinformation.
“Quoting an RTI, It is being claimed in a tweet that PM’s visit to Morbi cost ₹30 cr,” said the PIB. “This claim is #Fake. No such RTI response has been given.”
On 30 November, a day before the first phase of polling of Gujarat’s state assembly elections, Gokhale shared screenshots of a couple of tweets from a Twitter handle called Dax Patel.
In those tweets, ‘Dax Patel’ had shared what looked like images of pages from a Gujarati newspaper and listed out the purported highlights of the report in English, ostensibly for those who did not understand Gujarati.
Gokhale shared screenshots of these tweets and added his comment.
“RTI reveals that Modi’s visit to Morbi for a few hours cost ₹30 cr,” tweeted Gokhale. “Of this, ₹5.5cr was purely for “welcome, event management, & photography. 135 victims who died got ₹4 lac ex-gratia each i.e. ₹5 cr. Just Modi’s event management & PR costs more than life of 135 people.”
Dax Patel’s Twitter handle could not be found on 6 December. It appeared to have been deleted. Traces that the account left behind shows it had over 4,000 followers.
When questioned (here and here) by Twitter users about the name of the newspaper that carried the report, the profile user had named Gujarat Samachar, a leading Gujarati newspaper, before deactivating the handle.
The police said the newspaper had not published such a story.
Even before the PIB’s tweet, Rishi Bagree, a known supporter of India’s ruling party, challenged Gokhale about the authenticity of the story.
“This is a (sic) fake news,” Bagree wrote in reply to Gokhale’s tweet. “No such RTI has been done. No such news has been published. It is fully fabricated. Show the RTI if u (sic) have any.”
Several other users of the social media platform drew Gokhale’s attention to the PIB’s tweet. Gokhale neither offered clarification nor deleted his tweet, a behaviour similar to his compatriots in the BJP.
For example, BJP spokesman Malviya has often been called out for fake news but has rarely deleted tweets or admitted to mistakes.
Some BJP leaders have landed in jail for spreading misinformation, but that has been in states ruled by opposition parties, such as the TMC in West Bengal.
Tit For Tat: What The BJP Faces In West Bengal, Other States
Ghosal said Gokhale’s arrest was an example of how those opposed to India’s ruling party need to be extra careful with the information they receive on social media.
“Of course, spreading misinformation is an offence, and it seems that Gokhale did a stupid thing by not verifying the veracity of the original tweet, but the promptness with which the police swung into action is seen only in cases involving opposition party leaders or members,” said Ghoshal.
“The ruling party’s IT cell has long been identified as the biggest disseminator of misinformation,” said Ghoshal. “They have been caught innumerable times. But how many BJP leaders did land in jail?”
In West Bengal, scores of BJP leaders and workers have faced criminal charges and spent days behind bars—over 300 in 2020 alone. Several arrests were made in 2021 as well.
“The TMC government in West Bengal has arrested innumerable BJP workers on charges of spreading misinformation,” said Tarunjyoti Tewari, a West Bengal BJP spokesperson who is a lawyer by profession.
“Even when people share information that the mainstream media suppresses, the police charge them for spreading fake news,” said Tewari. “The party has no right to talk about vindictive politics. They should practise what they preach.”
As for other states, in July, the police in Congress-ruled Chhattisgarh had filed an FIR against BJP MPs Rajyavardhan Singh Rathore and Subrat Pathak for circulating the doctored video featuring Congress leader Gandhi. Neither has been arrested.
In June 2022, former Indian Administrative Service (IAS) officer-turned-BJP leader O P Choudhury was booked for circulating an allegedly fake video on social media. Still, Chhattisgarh police have not launched criminal proceedings.
In March, a BJP youth wing functionary in Tamil Nadu, governed by Dravida Munnetra Kazhagam, an opposition party, was arrested for spreading misinformation, saying a jacket belonging to chief minister M K Stalin cost Rs 17 crore.
What Lies Ahead For Gokhale
One expert said Gokhale’s case should serve as an example for people who hold responsible positions and share or endorse unverified information through social media platforms.
“We are the world’s second-largest internet user, but we Indians have very little awareness of misinformation. We don’t tend to verify information that we receive through social media platforms,” said Chatterjee, the Kolkata lawyer quoted previously. “But this is necessary, all the more so for people holding responsible positions, as such misinformation has led to events of violence.”
According to Chatterjee, the charges against Gokhale could have been lighter had he not added his comments endorsing the original tweet.
“The prosecution will try to prove that his intention was malafide, whereas the defence is likely to argue that the intention was bonafide, that the tweet was shared in good faith,” said Chatterjee. “However, since he added his comments, the prosecution might find it a good case for defamation.”
“If consequences include violence, property damage or loss of life, the court may not take a lenient view,” he said.
Chatterjee suggested that when someone sees a photo or screenshot of a newspaper clipping, it is essential to confirm if it is true by using keywords to check if a “credible news platform reported it”.
Gokhale may have to fight the charge of lacking in “due diligence” in the court, said Chatterjee.
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(Snigdhendu Bhattacharya is an author and independent journalist based in Kolkata, writing on politics, human rights, environment, climate change and culture.)