---
abstract: |
  Instead of enforcing punitive measures for spreading violence through
  rumours, the administration sought to prevent private group
  conversations.
archive-url: "https://web.archive.org/web/20230909084746/https://scroll.in/article/807277/whatsapp-in-kashmir-when-big-brother-wants-to-go-beyond-watching-you"
author:
- Pranesh Prakash
- Vidushi Marda
authors:
- name: Pranesh Prakash
- name: Vidushi Marda
categories:
- Freedom of expression
citation:
  abstract: Instead of enforcing punitive measures for spreading
    violence through rumours, the administration sought to prevent
    private group conversations.
  accessed: 2019-01-12
  archive: "https://web.archive.org/web/20230909084746/https://scroll.in/article/807277/whatsapp-in-kashmir-when-big-brother-wants-to-go-beyond-watching-you"
  author:
  - name: Pranesh Prakash
  - name: Vidushi Marda
  available-date:
    date-parts:
    - - 2016
      - 4
      - 28
    iso-8601: 2016-04-28
    literal: 2016-04-28
    raw: 2016-04-28
  citation-key: prakashWhatsAppKashmir2016
  container-title: Scroll.in
  issued:
    date-parts:
    - - 2016
      - 4
      - 28
    iso-8601: 2016-04-28
    literal: 2016-04-28
    raw: 2016-04-28
  language: en_US
  title: "WhatsApp in Kashmir: when big brother wants to go beyond
    watching you"
  title-short: WhatsApp in kashmir
  type: article-newspaper
  URL: "https://scroll.in/article/807277/whatsapp-in-kashmir-when-big-brother-wants-to-go-beyond-watching-you"
comments:
  hypothesis:
    theme: clean
date: 2016-04-28
engines:
- path: /opt/quarto/share/extension-subtrees/julia-engine/\_extensions/julia-engine/julia-engine.js
keywords:
- surveillance
- freedom of speech
- Jammu & Kashmir
- India
- WhatsApp
- intermediary liability
license:
  text: CC BY-NC 4.0
  type: creative-commons
  url: "https://creativecommons.org/licenses/by-nc/4.0/"
listing-page: ../press.html
original-url: "https://scroll.in/article/807277/whatsapp-in-kashmir-when-big-brother-wants-to-go-beyond-watching-you"
publication: Scroll.in
title: "WhatsApp in Kashmir: When Big Brother wants to go beyond
  watching you"
title-block-categories: true
toc-title: Table of contents
---

# WhatsApp in Kashmir: When Big Brother wants to go beyond watching you

------------------------------------------------------------------------

Last week, Kumar Rajiv Ranjan, district magistrate of Kupwara in Jammu
and Kashmir [issued a
circular](http://scroll.in/latest/806872/whatsapp-news-groups-in-kupwara-told-to-register-with-local-authorities){rel="noopener noreferrer"}
requiring registration of "WhatsApp news groups" following violent
protests in Handwara and Kupwara in which 5 people were killed.

The circular was issued with a view to "restrict the spreading of
rumours". The circular laid down five conditions:

1.  It asked group administrators to register their "WhatsApp news
    groups" with the 'District Social Media Centre' within 10 days of
    the issuance of the circular.
2.  It required this Centre to keep a "vigil on the activities of these
    WhatsApp groups".
3.  It made group administrators responsible for all posts on their
    group, with any "irresponsible remarks leading to untoward
    incidents" to be dealt with by the law.
4.  It restrained government employees serving in the Kupwara district
    from "making any comments/remarks with regard to the policies and
    decisions" of the Government, failing which strict action will be
    initiated against them.
5.  It required authorities in Kupwara and Handwara to maintain a list
    of individuals (with evidence) involved in provoking the creation of
    law and order problems in the district. 

The Jammu and Kashmir department of information and public relations in
a [press
release](http://www.jkdirinf.in/NewsDescription.aspx?ID=21202){rel="noopener noreferrer"}
also noted that the divisional commissioner "directed the operators of
social media news agencies to obtain proper permission from the
concerned Deputy Commissioners for posting news on social media news
groups along with sources."

## Information Technology Act

As the [Centre for Internet and
Society](http://cis-india.org/internet-governance/blog/the-case-of-whatsapp-group-admins){rel="noopener noreferrer"}
has previously pointed out, alarmist news reports, which proclaim that
administrators of WhatsApp groups are liable for what the group's
participants post, are wrong.

Unlike many other laws passed by the Indian Parliament, the Information
Technology Act is applicable to Jammu and Kashmir. In 2008, the
provision that deals with liability of "intermediaries" for the actions
of third parties -- Section 79 of the IT Act -- was amended following
the notorious Bazee.com case, where Avnish Bajaj, the chief executive
officer of Bazee.com -- which is now eBay India -- was arrested for a
sexually explicit video being sold on that website.

Post-amendment, Section 79 provides strong protection for intermediaries
against liability for actions by others, with limited exceptions. The
district magistrate of Kupwara roundly ignores this, and in doing so
contravenes a law passed by Parliament. His circular states:

> "Group admins of each group will be responsible for all the posts on
> their groups and for any irresponsible remarks/deals leading to
> untoward incidents will be dealt under law." 

This is a gross violation of Section 79, and is beyond the powers of the
district magistrate.

## Freedom of expression

There is a difference between the press release provided by the
department of information and public relations of Jammu & Kashmir, and
the circular issued by the district magistrate of Kupwara. The circular
states that registration is required, whereas the Divisional
Commissioner Dr Asgar Hassan Samoon is quoted as stating that "proper
permission from the concerned Deputy Commissioners" is required for "
posting news on social media news groups along with sources" and also
that "action will be taken against the violators."

The latter smacks of the pre-censorship of the Emergency days. It is
actually even worse since this applies not just to the mass media, but
to *everyone*. If "permission" of a government official is required to
engage in speech, what remains then of the guarantee of freedom of
speech and expression in our Constitution?

While the circular -- which doesn't require taking of permission, but
requires registration -- is nominally better, it is no more within the
powers of the district magistrate. The Press and Registration of Books
Act, 1867, which (since 1965) is applicable to Jammu & Kashmir, requires
registration by all newspapers published in India, but does not cover
social media -- nor does the Jammu and Kashmir State Press And
Publication Act, 1932 cover social media. It is clear that the district
magistrate can't make up requirements when Parliament and State
Legislature have opted not to.

## Chilling effect

What the district magistrate has sought to do is *not* to strongly
enforce punitive measures for spreading violence through rumours, which
would be welcome. What he has instead sought to do is to prevent private
group conversations from taking place, thus directly striking at the
intersection of the rights to freedom of expression and opinion, the
right to privacy, and the right to assembly. Rumour-mongering with an
intention to cause disharmony and violence is clearly undesirable, but
it is far more reasonable to counter these both by spreading the truth
using the same channels of communication, and through punishment of
those engaging in such malicious acts.

Requiring prior permission from, or even registration with, authorities
to simply post messages on a WhatsApp group cannot be considered a
"reasonable restriction" under Article 19(2) of our Constitution. Having
such onerous requirements will only cause the chilling of speech --
discouraging of even legitimate and lawful speech because of fears that
Big Brother is reading all that you write.

There is unfortunately a long history of such repression in Jammu &
Kashmir. Restrictions on text messages -- SMSes, as they are called --
have been frequent. Internet shutdowns -- which caused an uproar when
they happened in Egypt -- are considered commonplace. Since 2013, there
have been at least 15 instances of Internet shutdowns in Jammu &
Kashmir.

Rather than countering rumours with truth, the government seeks to
counter rumours with fear and the chilling of speech. *Satyameva
Jayate.*