The Courts should have the right perspective in Twitter controversy

The Karnataka High Court yesterday issued an order restraining the UP Police from taking any coercive action against Mr Manish Maheshwari, Managing Director of Twitter Communications India Private Limited (TCIPL). (The order copy has still not been posted on the Court website. A report is available here)

The order is issued against the notice issued by the UP Police under Section 41A of the CrPC.

The section 41A states as follows:

41A. Notice of appearance before police officer.– (1)The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

Mr Manish Maheshwari had been issued a summons to appear before the UP police regarding investigations of the Gaziabad fake video case. He had requested for Virtual attendance which was not agreed to by the Police.

The “Coercive” action which is speculated here indicates that Mr Manish has the intention of not appearing for filing his statement in the manner in which the Police is authorized to take and therefore he is challenging them to arrest him.

Manish is contending that he is called a Managing Director but is only a revenue head and not responsible for uploading of content.  Hence he is expected to deny any statement of value being given to the Police.

He is being represented by Advocate C V Nagesh and the case has been posted for further hearing on June 29.

It appears that a small incident of whether Manish has to give his statement in person in a Police Station in UP or through the video conferencing has been escalated to a petition in a High Court. It could have been solved by the UP police agreeing to either take the statement  on the video and there after issuing an arrest warrant if required. Alternatively they could have also travelled to Bangalore and taken a statement in Bangalore with the assistance of the local police.

Court could have also ordered that the statement could be taken at the Police Station but a video recording of the statement be submitted to the Court later so that there would not be an interference in the duties of the Police.

The notice under Section 41A of CrPC is not an imminent arrest warrant and there was an option for Mr Manish Maheshwari to apply for an “Anticipatory Bail”. However, one additional step in litigation involving the time of the High Court has been introduced by first taking this restraining order and then if UP police issues an arrest warrant, hide and apply for a bail.

This is a game played by most resourceful criminals to use the judicial system to drag the trial. If Mr Manish wants, he may even abscond and leave the country like  Nirav Modi et.al.

In the pleadings, the petitioner has indicated that Supreme Court had earlier agreed for recording of the Virtual statement and is now claiming it as a matter of “Right”. If the Karnataka High Court agrees to this contention, then every witness will be able to claim as a matter of right that the statement with the Police under Section 160 of CrPC has to be taken virtually.

It would be interesting to see if this incident is taken to the extent of creating such a precedent.

As far as Twitter is concerned, it is at war with India and all these cases are only instruments of war. Hence they will use all tricks to bleed India by thousand cuts by exploiting every small loophole in the procedures which are meant for a different context other than a war situation.

It is necessary for the UP Police to impress upon the Court that they had invited Mr Manish Maheshwari as a witness in a cognizable offence. He is holding the designation of a “Managing Director” and under the Indian Companies Act, there are duties and responsibilities cast on a Managing Director. By definition of the “Managing Director” he is a person entrusted with substantial powers and is capable of representing the company in all business and legal requirements.

Hence invoking Section 41A appears to be misplaced.

Even if  Twitter Communications India Private Limited (TCIPL) is responsible for revenue and Twitter Inc, USA is managing the uploading, TCIPL earning revenue in India with the uploading of the postings in the micro blogging website will be the “Principal” appointing Twitter Inc as its “Agent” for technical services of uploading.

Hence the Managing Director of such a company should be liable for the actions arising out of the content. Under Section 85 of ITA 2000, if the offence is attributable to a Company, the person in charge of the business including the Managing Director “Shall be guilty”.

Twitter has assumed the role of a “Publisher” and is a “Publisher” because it is a “Blogging Site”. It also executes editorial content of approving membership of account holders, verifying their identity, deciding whether a content is “manipulated” or not and even takes its own coercive action to block a user from expressing himself on the platform even if he is the sitting president of the United States of America.

If tomorrow the Karnataka High Court passes an order against Twitter, there will be a series of criticisms on Twitter from “Verified Accounts” and this same Court will have to worry about “Contempt of Court”. (Eg: Kolkata High Court Judge hearing the Mamata Banerjee election case facing a social media trial).

A Company which has held the sitting, elected US President in contempt because it wanted to politically support his opponents and is taking a similar stand in India to oppose the elected Government and supporting the political opponents, is not an “Independent Media” requiring protection of the Indian democratic principles. They have to be treated as a political entity trying to bring about a regime change in the country.

I wish the Courts will shed their attitude to cater to the sentiments of populism and take a stand within the legal confines to protect the integrity of the sovereign nation. If the Managing Director of a subsidiary of a US Commercial entity can refuse to abide by the rules framed under an Act passed 21 years back and say its company rules are binding on it and they consider it above the Indian legal requirements, then it is mocking at the Indian sovereign powers.

In case Twitter tomorrow refuses to accept the order of the Karnataka High Court that its corporate policies donot recognize the laws of India, the Judges who support Twitter today under the false contention of “Freedom of Speech” will have to eat their own words.

No doubt there is a large section of press who would hail such judgements as “Upholding the democratic principles” etc and the Judges will get their photographs on all news papers. But the responsibility of a judge is towards protecting the Country and if in the process unpopular decisions have to be taken, they need to have the conviction for National good to take such decisions.

Advocates who play around technicalities to save murders and terrorists escape punishments should not be allowed to dictate the Judgements that will in the long run erode the authority of the  Indian Government.

Let us therefore wait and watch whether Karnataka High Court will  pursue the headline “Court protects Twitter” or “Court protects Indian sovereignty”.

In the current case, it is a speculation that Mr Manish will be arrested and based on the speculation and not a  fact. If the Court agrees to the petitioner’s contention that UP Police should be restrained then they will be acting on speculation. In many anticipatory bail cases, Courts refuse to grant anticipatory bail if there is no reasonable apprehension of arrest such as a FIR. Similar restraint is warranted in this case also.

We all know that the Courts themselves are struggling to conduct virtual hearings which are fair and legal. It is therefore difficult to presume that the UP Police will be able to have a fair virtual interaction with a potential witness without ensuring that his battery of lawyers will be hiding behind him when he is recording his statements.

If the Karnataka High Court wants to provide the privilege to Mr Manish to claim Virtual Statement as a matter of right, they will have to provide the guarantee that the statement will be provided without coercion and lawyer’s guidance. Perhaps they will have to consider that the statement will be recorded in the presence of the High Court judge in his chambers without the  presence of the lawyers.

Any other order will be creating an unwanted precedence which the Court will regret.

It is necessary for the High Court to also consider live web broadcast of the continuation of hearing on June 29. Will they consider?

Naavi

Also see the video here:

 

 

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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1 Response to The Courts should have the right perspective in Twitter controversy

  1. Balu Swaminathan says:

    Dear Sir,
    Investigation is the exclusive subject of the Police and no one could interfere including Judiciary .Pl. Read the following news item.
    https://timesofindia.indiatimes.com/india/investigation-is-prerogative-of-police-courts-should-not-interfere-sc/articleshow/70996199.cms

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