Jalandhar based industrialist Atul Mehta had no clue that he would land up in jail one fine September evening, when he was sending Santa Banta jokes to a group mate on Whatsapp. The group mate happened to be the President of the Sikh Action Committee, Narinder Singh Lucky. He made it clear to Mehta that he would not be spared for ​“offending the sentiments of the community”. However Mehta refused to back off and sent not one, not two but 15 jokes back-to-back that allegedly ​“showed Sikhs in poor light”. Incensed, Narinder Singh Lucky lodged a complaint at 4 pm on September 5, 2013 at Bawa Khel police station in Jalandhar city. By 5 pm Mehta was tracked and arrested. By 9 pm an FIR was lodged and Mehta was booked under section 295 A of IPC for hurting religious sentiments and sections 66(a) and 67 of the IT Act. Narinder Singh speaking to Newslaundry says, ​“I told Mehta that I didn’t like his jokes but he continued sending me the offensive jokes. He challenged me saying, ​‘let me see what action you can take against me.’ So, I went with other people of my committee and lodged a complaint against him.” Mehta could get bail only after having spent two weeks in jail.

If you are one of those who think that Santa Banta jokes are a harmless way of sharing a good laugh and are curious about Mehta’s journey from joke to jail, a look at the said sections of the IT Act would answer most of your questions. It would tell you that just like Mehta you too could land up in jail for the same offence.

Section 66 (a) of IT Act

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; or

(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,

© 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,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Section 67 of the IT Act

Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

The bottom line is, if convicted, Mehta can end up spending three to five years in jail and coughing up a fine of Rs 1 lakh for sharing a joke.

The case has created ripples among internet users in Jalandhar. The word also spread as the Sikh Action Committee made sure that the matter got extensive coverage in local media.

A Times of India report claimed that the arrest has led to an environment of fear and caution among Whatsapp users in Jalandhar and the sharing of such jokes has come down. The debate however is not whether the arrest has scared people on Whatsapp or other online platforms to the extent that they have stopped exchanging such jokes. The question is: Is it justified to put a person behind bars for sharing a joke through a communication device? Or is it about hurting religious sentiments? If the latter is the case, the person has already been booked under Section 295 A of the IPC under which the maximum punishment he might be awarded is three years or fine or both. Then what necessitates the use of the IT Act?

Often the administration is blamed for misusing the IT Act as it is subject to the interpretation of the police officer. We spoke to ACP of Jalandhar City R P S Sandhu and asked him what warranted the slapping of Section 66 (a) and Section 67 against the accused. He said, ​“Any person exchanging hateful or offensive content on internet has to be booked under this law. In this case we got the orders from the Commissioner to register the case under the IT Act.” Earlier, the arrests of Shaheen Dhada, Ravi Srinivasan and Ambikesh Mahapatra on similar grounds under the IT Act met with widespread outrage and the administration was accused of dealing with them in a highhanded manner.

However, experts draw a difference between these cases which had a ​‘political motivation’ and Mehta’s arrest. Prabir Purkayastha, founding member of Delhi Science Forum and one of the leading voices against the misuse of IT Act says, ​“This case is different from the Karti Chidambaram and Mamata cartoon case. As far as hurting religious sentiments in concerned it is justified to book someone under the IT Act in case of sharing of online content that leads to flaring up of communal tensions. But can it be used to arrest someone for sharing offensive jokes? This is a grey area. The merit of the case depends on the content of the messages shared.” Cyber expert Pawan Duggal, on the other hand, is very clear that one cannot be arrested for sharing a joke. He says, ​“You cannot arrest a person for sending out a joke that is in common folklore. Due to the vague nature of the Act, the interpretation of the law is subject to the discretion of the complainant and the police officer. The problem is 66 (a) essentially is one of the widest under the Indian cyber law. It is so wide that if you take ten cases of free speech, 5 to 6 cases would be covered under 66 (a) for being menacing, grossly offensive and annoying. The case would have made sense had such jokes not been in public domain.”

Anja Kovacs, Director, Internet Democracy Project agrees. She says, ​“The ground for criminalisation of speech has to be really strong. Underinternational human rights law as agreed within the UN framework the minimal condition for criminalising speech is danger of violence and that tooa real and imminent threat of violence. Speech cannot be criminalised just for cracking a joke.”

She adds that if indeed certain members of a community feel vulnerable when subjected to jokes of racial nature, the administration can resort to several other effective ways of safeguarding their interests. She says, ​“Jokes do sometimes tend to take the shape of abuse. But locking up people wouldn’t solve the problem. If courts feel it is required to take action, they could impose civil penalties: making the offenders pay a fine, making them publicly apologise or write an open letter are effective ways of dealing with the issue. But it is difficult to legislate how people behave with each other at a personal level,and the best way to put an end to the stereotyping of a community and its ridiculing through jokes is by responding to bad speech with more speech. This is something that the community itself can do as well”

Meanwhile Narinder Singh thinks his ​‘tormentor’ has been let off too easily. He is determined to take his fight with Mehta to its ​‘logical’ end and make sure he spends a considerable part of his life in jail. Thankfully, most of these cases fizzle out once they reach the court. But after spending two weeks in jail, Mehta has perhaps already learnt the most important lesson of his life. That joke and jail are just three letters apart.