Leh: In 2016, the Delhi High Court had ruled that making the administrator of a social-media group responsible for a post on that group was akin to holding a newsprint manufacturer responsible for what appears in a newspaper. Yet, on 5 September, a journalist from Leh was detained by police for a post in a public Facebook group that he administers.
Tsewang Rigzin was arrested and released under section 188 (disobedience to order by public servant) of the Indian Penal Code, 1860, punishable with a month’s imprisonment or a fine or both.
The Indian Journalists Union called Rigzin’s arrest a “blatant attack on freedom of expression”. A rare joint statement from Congress and Bharatiya Janata Party (BJP) leaders in Ladakh over the arrest reflected demands for special constitutional rights that would disallow outsiders to get domicile rights, which locals fear may be forced on them, as they were in Jammu and Kashmir (J&K).
Former BJP member of Parliament (MP) Thupstan Chhewang, former Jammu and Kashmir ministers Chering Dorjay, of the BJP, and Nawang Rigzin Jora of the Congress, criticised the arrest in this joint press release.
On 28 September, acknowledging those tensions, Home Minister Amit Shah assured Ladakhi representatives that the government was open to discussing special protections to Ladakh. Based on that assurance, a key group called off a call to boycott elections to the Ladakh Autonomous Hill Development Council.
The anger that the issue has generated in Ladakh emerged when a man called Dorjey Sham, whose Facebook profile is locked at the moment, on 3 September, wrote of Jamyang Tsering Namgyal, BJP MP from Ladakh: “C****a, yeh admi kursi ke leye ek din apne biwi ko be bej dega (Expletive, one day this man will sell his wife for his position).”
The post, criticising Namgyal’s silence on the issue of domicile, was written on Ladakh In Media, a Facebook group of 34,000 members—more than the population of the town of Leh—of which Rigzin is administrator.
The police registered a first information report (FIR) against Sham under IPC sections 188, 294 (obscenity) and 500 (defamation). "We have registered a case against Dorjay Sham and are trying to establish his identity," said Leh Senior Superintendent of Police (SSP) Rajiv Pandey.
Rigzin’s arrest follows a 2 September 2020 order from the Deputy Commissioner (DC), Leh, which says group administrators are responsible for posts on social-media groups they manage and liable for legal action for messages with “huge potential to cause panic among the general masses, may promoted (sic) enmity between various groups and may cause law and order problem in Leh district”.
Similar orders have been issued in many districts of J&K.
Pandey said no FIR was registered against Rigzin, but he was called to the police station and told the post violated the DC’s order. “The arrest was shown on paper, and he (Rigzin) was made to sign a bail application, after which he was released," said Pandey.
Rigzin, bureau chief of the State Times, said he was detained for about two hours. “Though I was let off after signing the bail documents, the fact remains that I had not even noticed what comment was made against the MP, as the group has about 34,000 members, which is a huge number in Leh [district population: 133,487]," he said.
Simmering Anger Over Domicile
The genesis of the controversy is simmering discontent in Ladakh over a perceived threat to "cultural identity” after the abrogation of Article 370 of the Constitution and the creation of the union territory (UT) of Ladakh. legislature. J&K, too, was made a UT but, unlike Ladakh, with a legislature.
Apart from the BJP, a majority of political, cultural and social organisations of Leh have demanded that Ladakh be brought under the purview of the Constitution’s 6th Schedule, which guarantees special rights for the indigenous population of a region.
Political leaders of Ladakh have said they will not accept the domicile law forced on J&K, where anyone who lives in the region for 15 years is eligible for a government job and local college admissions. Ignoring criticism that locals would be swamped, about 1.7 million have been granted domicile in J&K since 5 August 2019, when Article 370 was removed.
The Ladakh In Media group carries many posts advocating 6th-Schedule status to Ladakh.
On social media, MP Namgyal criticised the “derogatory comments” Sham made about his wife and him.
“The comment was neither related to my political profession, nor to my party affiliation, and to my stand on current issues,” Namgyal wrote on 8 September. “It was purely [a] personal attack on my family members.”
"How can someone make such derogatory comments,” wrote Namgyal. “It was extremely intolerable for me. So as a husband of my beloved wife and as a father of our son, I filed an FIR on this individual by the name Dorjay Sham.”
Namgyal is in quarantine after testing positive for Covid-19 and could not be reached for comment.
Attempt To Stifle Dissent: Journalist
Previously associated with the Congress, Rigzin alleged his arrest was an attempt to muzzle dissent in Leh, at a time when the BJP faces criticism over the 6th-Schedule status for Ladakh.
"It was a conspiracy to silence me as I have been very critical of the BJP and the BJP-controlled Ladakh Autonomous Hill Council Development (LAHCD) over this issue,” said Rigzin. “Some people had told me earlier that my writings and posts could land me in trouble.”
Rigzin was elected on a Congress ticket as Councilor of the LAHCD in 2010 from Nubra and remained one till 2015. Rigzin, however, said he quit the party in 2014, has not associated with any party since and has only been a journalist.
But Rigzin’s previous association with the Congress has led the BJP to allege his arrest was deliberately blown out of proportion to get MP Namgyal in trouble.
"The scribe had admitted that the post against the MP was wrong,” said a Leh-based BJP leader, speaking on condition of anonymity. “So, he was detained and subsequently released as per the law, so where is political vendetta in the case?”
“He has been associated with Congress. The BJP has given Ladakh UT status, which no one ever dreamed would be a reality, so the opposition is left with no issue.”
K B Jandial, a retired Indian Administrative Service officer said “political aspirations are high” in Ladakh over getting 6th-Schedule status and the case against Rigzin would only inflame the situation.
“Even if the journalist is an admin, he should have been called by the concerned authorities and let off by giving a strong warning,” said Jandial. “I believe that it should have been avoided."
What The Courts Have Said About Admins
J&K High Court lawyer Sheikh Shakeel said court judgements on the issue of holding social-media group administrators responsible for content were a mixed bag.
“Some judgments of the courts have given relief to the admin while some have said the accountability of the group admin can be fixed,” said Shakeel. “Use of social media is now being regulated… the MP had the legal right to file a complaint and the police proceeded against the group admin accordingly, so there was no malicious intent on part of the police."
In 2016, the Delhi High court observed that the administrator of an online group cannot be held responsible for messages posted in that group.
“I am unable to understand as to how (sic) the Administrator of a Group can be held liable for defamation even if any, by the statements made by a member of the Group,” said Justice Rajiv Sahai Endlaw. “To make an Administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation.”
“When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor,” said Justice Endlaw. “It is not as if without the Administrator‟s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”
During the 2019 parliamentary elections, local journalists had alleged that the BJP was trying to bridge Leh-based media.
Rigzin, who is also the general secretary of the Leh Press Club, was one of the journalists who asked for an FIR against BJP leaders.
After the bribery allegation became public, J&K BJP president Ravinder Raina on 7 May 2019 accused Rigzin—some said because of the journalist’s past political affiliation—of being the "mastermind" of the controversy.
(Upadhyay is a Jammu-based journalist and a member of 101Reporters, a pan-India network of grassroot reporters.)