4th December 2013
National Human Rights Commission
Manav Adhikar Bhawan,
Block-C, GPO Complex, INA,
New Delhi – 110 023.
Sub: HRD Alert – India – Urgent Appeal for Action – New Delhi: Imminent threat of arrest and harassment to Ms. Sheeba Aslam Fahmi, writer / journalist / activist – Reg
We are now writing to express our grave concern regarding imminent threat of arrest and harassment of New Delhi based journalist, feminist activist and human rights defender Ms. Sheeba Aslam Fahmi for expressing her opinion over social media which are supposedly ‘anti-national’.
Source of Information on the Incident:
A communication dated 3 December 2013 from the Asian Human Rights Commission.
About the Human Rights Defenders under attack:
Ms. Sheeba Aslam Fahmi is a reputed writer, journalist, social activist and a regular panellist in news channel debates. She uses social media as a medium to express her views and opinion as a part of her journalism.
Mr. Pankaj Kumar Dwivedi, son of Mr. M.P. Dwivedi
Date of Incident:
August 26, 2011, threat – on-going
Place of Incident:
According to the information received, Ms. Fahmi received an unidentified email colouring her writings as ‘anti-establishment’ and ‘anti-national’ and warned her of dire consequences if she does not stop. She made a formal complaint at the Jama Masjid police station in New Delhi under section 66 (A) of India’s Information Technology Act in August 2012. Consequently, a FIR (No. 47/12) was registered by the police in the case. It was found during investigation that said email was generated from the laptop of one Mr. Pankaj Kumar Dwivedi, son of Sh M.P. Dwivedi and was transmitted from the MTNL Internet connection with IP address 126.96.36.199. Mr. Dwivedi later admitted that he sent the email to Ms. Fahmi. The message in the email reads as follows:
“’Friday, August 26, 2011 9:44 AM subject **Warning*** Warning* **Warning ***Warning ***Warning* **Warning ***Warning ***Warning*** Sheeba Aslam, stop posting AntiIndian and AntiNational comments on Facebook. Stop immediately. Otherwise be prepared for its consequences. ***Warning*** Warning*** Warning* **Warning ***Warning ***Warning***Warning***.
“As per section 66 A of The Information Technology Act, the message is grossly offensive and criminal in intent having menacing character and the sender is liable to be charged for prosecution under section 66 (A) of The same Act. However, the defense argued that the email was sent as a comment of objection to her opinion and did not, therefore, amount as ‘information’ as provided under section 2 clause (v) of the Information Technology Act, 2000. Acting on this argument, Metropolitan Magistrate has discharged Mr. Dwivedi from the charges under section 66 (A) of Information Technology Act 2000 and observed that the postings/publication of Ms. Fahmi attract the provisions of Indian Penal Code under section 153 (A), 153(B) and section 295 A . He, then, directed the police to register a separate FIR against her and investigate the publication as published by her on social media. He also ordered the police to file the compliance report that was to be submitted by November 16, 2013.
However, Ms. Fahmi came to know this development only through media on December 3, 2013 and she was informed by the police when contacted personally that the police authorities will act on the order only after the conclusion of the election in Delhi which is scheduled on December 4, 2013.
The use of cyberspace in India is regulated through the Information Technology Act 2000, amended in 2008 and 2011. Freedom of speech and expression is constitutionally guaranteed in India. However, this protection ceases when the opinion is expressed through cyberspace. If an opinion is published in a newspaper, then it is covered by article 19 (1) (a) of the Constitution. However, if the same in posted online, it will be covered by the Information Technology Act. Any message transmitted via the cyber space is considered as ‘communication’ and not as ‘publication’. Section 66 A of The Information Technology Act reads as follows:
“Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device,
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, hall be punishable with imprisonment for a term which may extend to three years and with fine.
We, therefore, urge you to immediately take necessary steps to ensure that:
- A stay order on the non-bailable warrant against Ms. Fahmi is passed
- The perpetrator is prosecuted for threatening Ms. Fahmi and violating her freedom of expression
- All human rights defenders in India are able to carry out their legitimate human rights activities without fear of reprisals and free of all restrictions, including judicial harassment in all circumstances.
- Respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments ratified by India is guaranteed
Looking forward to your immediate action in this regard,
Honorary Working Secretary