The Kashmir Cyber Police on Monday said that a first information report has been filed against “social media users who defied the government orders and misused the social media platforms”.

The FIR, the police said in a statement, is aimed at clamping down on individuals who “propagate the secessionist ideology and promote unlawful activities”. These people, the police claimed, have accessed restricted social media websites through Virtual Private Networks or VPNs – apps that allow users to mask their location and browse the internet more securely.

Internet access to Jammu and Kashmir was cut off just before the Centre on August 5 revoked the region’s special status under the Indian Constitution. Five months later, on January 25, net access was allowed to 301 “whitelisted” websites. On Saturday, the whitelist was expanded to 1,485 sites but internet speed has been restricted to only 2G for now. Social media sites still remain banned.

The sections of the law mentioned in Monday’s statement about the FIR carry punishments that are completely disproportionate to the alleged offences. The legal provisions invoked in the FIR include the Unlawful Activities Prevention Act, which allows a suspect to be detained for several months without bail. Curiously, the statement said that police have also invoked Section 66A of the Information Technology Act, even though it has been struck down by the Supreme Court.

The police statement did not name individuals who had defied the order nor did it explain if any incriminating material had been found.

The primary idea behind the FIR seems to be to intimidate Kashmiris to ensure they do not access social media platforms using VPNs. Given the restrictions on communication and movement still in place, social media serves as an important avenue to communicate with the outside world. If information about the the situation were to become apparent, it would be difficult for the government to sustain its claims that the valley is “normal”.

A senior Kashmir police officer told Scroll.in that specific individuals had not been named in the FIR because the identity of these social media users had to be verified to rule out impersonation. On the use of UAPA, the officer said that the posts attracted these provisions because they were “promoting anti-India, anti-social and anti-national activities”.

On the use of Section 66A of the Information Technology Act, which has been struck down by the Supreme Court, the officer said this provision has been dropped from the FIR. “But Section 66 B will remain in the FIR,” the police said.

By invoking these sections, the FIR violates Supreme Court orders.

Flawed FIR

After the communications blockade to which Kashmiris were subjected for five months from August 5 was challenged, the Supreme Court asked the administration to review its orders on the restrictions. As a consequence, on January 25, the administration put out a list of websites that Kashmiris were allowed to access. Social media sites like Twitter and Facebook were blocked.

Monday’s FIR means that the social media block has not worked on the ground, as users have skirted the ban by accessing sites through VPN networks.

The first category of crime in the FIR relates to people accessing social media sites that are banned. This falls under Section 188 of the Indian Penal Code, which punishes disobedience relating to orders imposed by public authorities. Since these sites are blocked, the police claims that using them amounts to disobedience.

Then comes posting troublesome messages and statements that are in the nature of alarming the public. This is covered by Section 505 of the Indian Penal Code, which punishes “statements conducing to public mischief”.

The fact that the use of VPNs is not a crime in itself is established in the police claims. In Monday’s statement, the police appealed to residents to avoid their using these apps rather than warning of criminal action. The crime alleged in the FIR relates to accessing blocked social media sites and using them sites to instigate unlawful activities.

Use of UAPA

Not only has the police statement failed to establish any concrete act about inflammatory social media posts, it has turned the FIR into a fishing expedition. Since the FIR does not name any individuals, it provides the police with a licence to include anyone under its purview in the future and make arrests.

Section 13 of the UAPA that has been mentioned relates to the advocacy and instigation of unlawful activities. The police officer told Scroll.in that this was included because there are social media posts that glorify terrorists and terror outfits.

“Anybody doing any illegal activity be it in Jammu, Punjab, or Delhi or anywhere else, UAPA will attract,” the police officer said. “You have to see the gravity of the offence. If the offence or activity is against a particular individual, society, class or an area, then it falls under different ambit of law. But if the activity is against the security and integrity of the nation, then it falls under the different ambit. The gravity of the act attracts the provision. And when the law is available to deal with such an act, it will naturally be used.”

Kashmiri students wait for their turn to use the internet at the Divisional Commissioner's office in Srinagar. Credit: AFP

However, using the UAPA in this manner is not sustainable. Mere social media posts or even public speeches cannot attract the UAPA. The police has to show that the provocation actually endangered sovereignty and integrity of the country and public order. This has been made clear by the courts time and again.

IT Act

As noted, the FIR invokes sections of the Information Technology Act that have been declared illegal. In 2015, the Supreme Court struck down Section 66 A of the Act in its entirety, stating that it violated the fundamental right to speech and expression.

This means that Section 66 A stands deleted from the law books. The Kashmir Cyber Police, whose job is to monitor cyber crimes, seems to be so ignorant that it has not updated itself on this crucial legal development even five years after the landmark judgement.

In recent times, the courts have come down heavily on police officers in other states for continuing to invoke Section 66 A. But when asked about the use of this erstwhile law, the police officer said it has now been dropped from the FIR. “Since Section 66A has been struck down by the Honorable Supreme Court, it has been dropped from the FIR,” the officer said. “But Section 66 B will remain in the FIR.”

There is a contradiction here. In the Monday statement, the police claimed that Section 66 A(b) had been invoked. On Tuesday, the officer told Scroll.in that Section 66 B will remain in the FIR. Curiously, this section deals with receiving or retaining stolen computer and communication devices. It isn’t clear why the police statement on Monday did not mention Section 66 B.

The police officer added that the investigation was still proceeding and no arrests have been made, despite the claim in the Monday statement that “lot of incriminating material has also been seized in this regard”. It is unclear if the material was seized before or after the filing of the FIR.

IPC Sections

What clearly establishes the FIR as an intimidation tactic is the use of two IPC sections of 188 and 505 along with the UAPA and the IT Act.

According to Delhi based lawyer Abhik Chimni, the FIR brings together two categories of crimes that should have been ideally handled separately. “Disobedience to orders and unlawful activity cannot be put on the same pedestal,” the lawyer said. “The idea seems to be to include even innocuous access of these sites in the conspiracy against the state. This is unsustainable.”

Since there is no order banning the use of VPNs and it is virtually impossible to curb such usage, an FIR that makes sweeping claims of seditious and anti-national behaviour could be used as a chilling effect on free speech. “Nothing stops the police from claiming the very use of social media in this context as part of a seditious conspiracy,” he said.