The police tell us they will prosecute only ‘misuse’ of social media under a raft of newly deployed vague, broad laws. But social media are illegal, the state’s informal reaction to their use violent, and the jail term can be up to seven years
Srinagar: After threatening anyone using social media with—among other legal provisions—an anti-terrorism law that carries a jail term of up to seven years, the Jammu and Kashmir police have made first arrests and informed Article-14.com that the threat was meant to prevent “misuse”.
Tahir Ashraf Bhattie, superintendent of police at the city’s cyber police station, described “misuse” of social media as “fake news that would create a law-and-order situation” in Kashmir.
“The FIR (first information report) is not for the entire Kashmir, it is for only those who have been misusing social media,” said Bhattie, as he explained a vague, broad police case and subsequent press release on February 17, 2020, which sparked fear, confusion and criticism. “We have identified people who are misusing social media and are in the process of identifying more people.”
Open to wide interpretation, the FIR appeared to threaten anyone using social media with a variety of punishment options: section 13 of the Unlawful Activities (Prevention) Act 1967, or UAPA; sections 188 and 505 of the Indian Penal Code (IPC); and section 66 (A) of the Information Technology (IT) Act, 2000.
Section 13 of the UAPA allows police to detain suspects on suspicion of terrorism,
Section 188 of the IPC to detain suspects who “disobey” government orders, and Section 505 to detain those who create “hostility” to others by incitement.
Section 66 (A) of the IT Act, which imposed restrictions on online speech, does not even exist, struck down as it was in 2015 by the Supreme Court as “unconstitutional” in Shreya Singhal vs the Union of India.
The first such arrest, in a case registered about two months ago, was made on 19 February, 2020, and the suspect, Imitiyaz Ahmed Kawa, charged with incitement. Kawa “was outside Jammu and Kashmir and had put up fake photos and news about Kupwara on social media, claiming the police had damaged property”, said Shriram Ambarkar, Kupwara’s senior superintendent of police.
The Srinagar FIR was filed after a video of an ailing Syed Ali Shah Geelani, a 90-year-old separatist leader, circulated on social media despite a social-media ban since 14 January, 2020. Geelani's cook and a domestic worker were arrested for smuggling the video out of his house and uploading it to social media via a virtual private network (VPN), The Times of India reported.
Since limited Internet access under a slow speed or 2G protocol restarted on 14 January, 2020, after an six-month suspension, many in Jammu and Kashmir circumvent the social-media ban using VPNs, websites that allow users to mask their locations.
“There have been continuous reports of misuse of social media sites by the miscreants to propagate the (sic) secessionist ideology and to promote unlawful activities,” said the press release. “Social media has remained a favourite tool which largely provides anonymity to the user and also gives him (sic) wide reach. The FIR has been registered while taking cognizance of the social media posts by the miscreants by use of different VPNs which are propagating rumours with regard to the current security scenario of the Kashmir valley, propagating secessionist ideology and glorifying terror acts/ terrorists.”
“As of now, a general FIR has been filed against those misusing media,” said Inspector General of Police (Kashmir) Vijay Kumar told Article-14.com. “We have identified some people who are spreading fake news and are facilitating militants. Once the evidences (sic) will be collected, we will arrest them.”
The UAPA: Guilty Unless Proven Innocent
The UAPA bypasses conventional legal logic that a suspect is innocent until proven guilty. “The law also says that if someone is facing trial, he should not be kept in custody merely for that reason,” said Wahid Mohammad Haseeb, a Jammu and Kashmir High Court lawyer.
Under the UAPA, “if there is a prima facie case, and the judge has a reasonable opinion—on the basis of the case diary or an allegation made by police—that this person has committed a crime, bail is not granted”, said Haseeb.
While this applies only to section 4 & 6 of the UAPA, the police said they would use section 13, which does allow bail, “but only if the judge approves the bail, said Haseeb. “In UAPA trials, rejection (of bail) is the rule and bail is exceptional.”
Section 13 reads: “Whoever takes part in or commits, or advocates, abets, advises or incites the commission of any unlawful activity shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.”
The UAPA allows the government to deem anyone a terrorist on suspicion—the onus is on them to prove otherwise, according to an amendment that Parliament passed on 8 July, 2019—and is not new to Kashmir, as we explain later.
The government can designate as a terrorist anyone who “commits or participates in the act of terrorism, prepares for terrorism, promotes terrorism or is otherwise involved in terrorism”, according to the 2019 UAPA amendment.
Between 2014 and 2016, over 75% of cases filed under the UAPA ended in acquittal or discharge, according to National Crime Records Bureau data.
“Over the years, UAPA has become a tool of repression – a weapon to keep people entangled in legal system and place people in jails for as long as the state wants,” said Amnesty International, a global human-rights organization, in 2019.
Panic And Confusion
Minutes after Bhattie’s cyber police registered the FIR, panicked locals, many of whom anticipated mass arrests, began de-activating social-media accounts, taking no chances in a state where detentions without due process of law are common, as Article-14.com reported recently.
“I read the police press note, but it is very vague,” said Mohammad Shakir Hussain, a Kashmir law student who stopped using social media after the FIR was filed. “Are they saying that everyone will be arrested, or are they arresting certain people they have identified misusing social media?”
On 5 August , 2019, when parliament approved the removal of Section 270—a special constitutional provision that provided for Jammu and Kashmir’s accession to India in 1948—and divided the former state into two union territories, the central government, fearing an insurrection, suspended telephone and internet services. When 2G Internet services resumed after six months, the ban on social media stayed, and access was granted to no more than 300 websites.
Soon after Internet services resumed, people started downloading VPNs, prompting Relicance Jio Infocomm, Kashmir’s leading telecom company, to block some VPNs. But social-media access continued because users logged on to more VPNs than could be blocked.
After users irked by the firewalls erected by Jio complained to Playstore—an official app store for Android operating systems—a network called Lets VPN responded. They asked users to download their latest version, which they said would allow VPNs to keep running. “Dear Kashmirian (sic) users, we’re more attached to the problem than you think,” Lets VPN wrote.
Given this inability to shut down VPNs entirely, the government has now issued threats of arrest under UAPA and other laws. The security forces and the army have already been informally—and without due authorization—checking phones for VPNs, and locals have alleged abuse and violence by soldiers.
Searching Phones For VPNs
In south Kashmir’s Kulgam district, many fear using phones in public places frequented by army and paramilitary patrols, who have checked phones and beating those found with VPNs on them, a local alleged, requesting anonymity for fear of retribution.
“They made our lives miserable to the extent that we prefer keeping our phones home,” said the man from Kulgam. “In Jammu also social media are banned, but we never heard people being mistreated there for using VPNs. The army is biased towards us.”
In south Kashmir’s Anantnag district, government employee Masood Alam uses VPNs and has learned to switch phones during checks. “Whenever I travel on the highway and the army stops the driver and starts frisking the vehicle, I keep my phone hidden,” said Alam. “I show (the army) my other phone, which doesn’t have an Internet connection.”
When soldiers stopped Sanam Aijaz, a television journalist, if he was using a VPN, he misunderstood and thought they wanted to call his family, reported Scroll.in, a news website. The soldiers were furious and abused him, said Aijaz, when they found he had a VPN.
“I am using a VPN, not an AK-47 rifle,” Aijaz was reported as saying.
Broadband use is banned for the general public but available to some organisations—such as hospitals and government offices—that provide essential services. However, they must sign an undertaking that they will not allow social-media access to employees and will be held responsible for violations.
UAPA Is Not New To Kashmir
On 16 February, 2020, two Kashmiri engineering students studying in Bengaluru were arrested under the UAPA for “putting up offensive posts and whatsApp status in support of the Pulwama Suicide Bomber, Adil Ahmad Dar and hailing him as a brave martyr”, the Bangalore Mirror reported.
“During cordon-and-search operations or during encounters [firefights], if young boys are found protesting or going close to the encounter sites, they have been booked under the UAPA,” said Ghulam Nabi Khan, a senior lawyer. “But this is the first time that people will be booked under UAPA for misusing social media."
Since 2019, more than 100 cases filed under the UAPA have been moved from local courts to a special Srinagar court of the National Investigating Agencies (NIA), a federal agency that can handle terrorism cases in states without their permission.
(Shafaq Shah is a journalist based in Srinagar)
Update: This story has been modified to reflect the arrest of Syed Ali Geelani's cook and domestic worker.