Lathicharge not for intimidating protesters: Former government advocate Sidharth Luthra

Edited excerpts:

Can such a takedown notice violate the freedom of expression or the rights of people, or is it within the range of reasonable curbs?

Sidharth Luthra: Simply put, if the police receive a complaint of an offence, they can ask for these allegedly offending posts to be taken down. They also have the power to write to the author and ask the agencies concerned whether they fall within the contours of the Information Technology Act. As you are well aware, the IT Act has rules framed under it, and under Section 69A it mentions instances where an offending post can be taken down. It can be done by law enforcement, as in the Shreya Singhal case, or it can be done in terms of a court order, but it can be done.

What safeguards or judicial oversight must law enforcement agencies follow while asking for the removal of such social media content to prevent arbitrary censorship?

Sidharth Luthra: It has to fall within the scope of Section 69A (power to issue directions for blocking public access of any information through any computer resource) of the IT Act, as there are certain safeguards which have to be applied. The safeguard, in short, is that there can’t be any arbitrary removal. Any removal sought has to have a nexus with the object of the provision and the rules. Just because you and I hold different opinions doesn’t mean they can be taken out. It has to have a level of offence which may either be a cognisable offence or a claim for defamation, loss of reputation.

What is a cognisable offence?

Sidharth Luthra: There are certain offences which the police can register in an FIR of their own accord. They are categorised as cognisable offences, and that is mentioned in the schedule to the BNS and also in different laws as to what are cognisable offences, where any police agency can investigate of its own accord.

Then there are non-cognisable cases. Now, the categorisation broadly is cases where there is a need for a police investigation in terms of the material that is to be gathered, and these are normally considered more serious or more heinous offences.

Non-cognisable offences are not offences against the state normally. Let us say, you and I disagree. I push you, or you shove me, that’s a case of simple hurt. Simple hurt is a non-cognisable case where you have to go to the magistrate’s court, you file a complaint, and then the magistrate’s court may either direct an investigation or, if necessary, direct a takedown notice.

Senior Advocate Sidharth Luthra, who has previously represented the Delhi Police, explains the use of legal provisions in such takedowns and says lathicharge can never be a means to traumatise people, but only to ensure that law and order is maintained.

Or, for example, in a defamation case, criminal defamation is non-cognisable. You have to file a private complaint, and the court has to be satisfied whether you committed the offence or not. There can also be civil actions, and normally people come in for loss of reputation, infringement of rights, intellectual property rights, and others. And when they do that, you can get a takedown notice from court, which is then implemented through the agency that has put up the data in the first place.

Do posts against the PM put a higher degree of onus and responsibility on investigation agencies?

Sidharth Luthra: Any takedown notice must conform to the requirements of the IT Act and the rules under it. The nature of office that the person holds is not a material consideration. The police have to be bound by the law and the law only.

The Delhi Police filed 15 FIRs in relation to the Jantar Mantar protests but withdrew them. What rules are followed when FIRs are withdrawn?

Sidharth Luthra: The law enforcement agency can withdraw an FIR in one of two ways. One is that if they find that no offence is made, they can close the matter. If they can find that they cannot find who the offender is.

But let’s say there’s a large mob and an incident is attributed to some members of the mob, but no member is identified; the Delhi Police can then call that matter untraced, that they were not able to identify the offenders. Thirdly, where there is a technical bar, for example, a sanction bar. There is government permission required before investigation.

And of course, lastly, if they find on the face of it that the facts narrate a factually incorrect version. Let’s say, there’s an allegation that you or I are attending the protest at India Gate. If that be the case, and if you and I show that at that time you were before Supreme Court or high court or trial court arguing our matter and our presence is recorded both electronically because maybe the VC hearing or via the court, or it may be a physical hearing where you are present in court and the CCTV cameras show you going in and out of the building, the record shows that you were attending court — in such cases, the Delhi Police ought to close the matter.

Also, if they find that the jurisdiction of the offence, whatever the offence be, is not in Delhi but in Haryana, they can then again say, “Look, your cause of action arose in Haryana. Please go there. Please go outside Delhi.”

Where does the law draw the line between a peaceful, constitutionally protected protest and an unlawful assembly that requires police intervention?

Sidharth Luthra: First and foremost, you need to have permission to do protests in certain areas. You seek permission, you get it, and you go there, and you are given the permission for several hours, perhaps several days, the nature of the protest, whether you can put up tents or not. All those categories are given to you. These categories have to be fulfilled. You fill in a form, and you inform the authorities that you are protesting.

One form of protest is when you don’t have permission, but you start protesting in a public place. It is illegal because you can’t block traffic. You can’t block people’s entry and exit. That’s number one. It can also be a case where people have medical emergencies; you are blocking them. These are concerns. Then you have cases where while the protest is on, there is aggression or violence.

Let us say they break the barriers or start hurting law enforcement. At that stage also it becomes unlawful on a declaration when the officer concerned says, “Look, you are protesting wrongly in this place. You have caused violence, and we are going to do a lathi charge.” They are informed that the police are doing a lathicharge, then it is up to the protesters to stay or leave. Lathicharge is not a means, nor should it be a means of intimidating or traumatising people. Lathicharge is a means to ensure that no law-and-order situation, destruction of public property or private property or injury to third parties takes place.