Who Will Police What the Police Posts on Social Media?

Tweeting about the latest raid conducted or details of accused persons is violative of various constitutional rights.

“Ram @ Bittu of Rampur (name changed) has been arrested by AATS/ West. 4 Scooty and 2 Motorcycles recovered from him. He will dismantle the vehicle after stealing and then sell the parts,” read a recent tweet by an official Twitter account of DCP-West, Delhi.

Attached to the tweet is the picture of Ram in a T-shirt that says, ‘Imagination Can Change Your World’. Below it are a range of comments, varying from congratulations to the police department to a suggestion that crime will continue until all ‘history sheeters’ are ‘encountered’. Another comment mocks the quote on the T-shirt of the accused. Yet another, playing to stereotypes, claims that “drivers of RTVs are fully intoxicated and (are) obviously illiterate”.

The trend of Indian police posting or tweeting about their latest raids and seizures, along with details and photographs of the accused, is not limited to the Delhi Police. A cursory glance at Twitter turns up similar posts by official accounts of police departments of Bengaluru, Kolkata, Lucknow, Bijnor, Noida, Punjab and Moradabad.

Under Digital India and e-governance programmes, government departments have been encouraged to build a presence through verified accounts on Twitter, Facebook and even Instagram. Law enforcement agencies are no exception.

The Department of Electronics and IT has guidelines for the handling of government social media accounts; for example they advise taking screenshots and recording social media interactions for future records. But they say little on the constitutional question of privacy.

There seem to be no guidelines for the police’s social media usage with relation to accused persons. In 2010, the Ministry of Home Affairs did issue an advisory on the media policy of police reporting, but made no reference to social media.

Also read: The Many Criminal Injustices of India’s Police and Investigating Agencies

Ram’s case highlights the problematic use of social media by the police. Personal details of accused persons are posted on official social media where they become the source of chest-thumping messages, jokes and bigoted comments.

Presumption of guilt, not innocence

The names, details and pictures of accused persons are posted after an arrest or a raid, i.e. mostly at the pre-trial stage. The guilt of the accused person has not yet been established and yet he or she has been condemned already.

Presumption of innocence is the foundation of our criminal justice system. The principle means that no one should be held guilty without being ensured due process and the right to be heard before a court of law. While legal contours of the presumption of innocence may be further debated, the spirit of this ‘golden principle of any civilised criminal justice system’ does stand violated by such social media posts because of labels of criminality matter.

In Suresh Kumar Koushal vs Naz Foundation & Ors, the court, on de minimis logic, upheld the constitutionality of section 377 stating that there have only been two hundred prosecutions under the provision. Justice Chandrachud in K.S. Puttaswamy did not agree with the reasoning in Kaushal. He stated that the ‘social opprobrium or disapproval’ attached to the provision has the potential to send a ‘chilling effect’ on the fundamental rights of individuals. Hence, while the legal determination of guilt under the provision may have only been in two hundred cases, yet it was declared unconstitutional since it labels certain individuals as criminals.

Thus, labels of criminality and presumption of innocence matter. The undertone of posting pictures and details of an accused person amounts to social condemnation and disapproval and has the potential to impact his or her fundamental rights.

Also read: Fair and Unbiased Policing Still a Far Cry in India

Post-sentencing stigma and right to be forgotten

While India lacks a legal framework envisaging the right to be forgotten, Justice Sanjay Kishan Kaul’s concurring opinion in K.S. Puttaswamy provides a glimpse of it identifying the right as necessary to ensure informational privacy.

Kaul asserts that ‘humans forget, but the internet does not forget and does not let humans forget’. While such a right would not be absolute, an individual has a right to control his or her existence on the internet. Recognising the ability of individuals to evolve and grow, he observes that:

“The technology results almost in a sort of permanent storage in some way or the other making it difficult to begin life again giving up past mistakes. People are not static, they change and grow through their lives. But they are entitled to re-invent themselves and reform and correct their mistakes. It is privacy which nurtures this ability and removes the shackles of unadvisable things which may have been done in the past.”

Thus, after a point, an accused should be left alone and be allowed to move on from her past. She cannot be condemned forever. But as Justice Kaul states, the ‘internet does not forget’. Pictures of the accused floating on social media may remain on the internet forever, even if such information serves no legitimate interest.

This coupled with the stigma attached to past criminal records would never allow the accused person to be reintegrated into the society even though she has duly served her sentence. Suppose in the above case, Ram is found guilty of theft and duly serves his sentence after which he is a free man.

The reformative theory of punishment tells us that Ram should be allowed to be part of the society as any other person, he should be allowed to live with his family, and have a regular job. But such posts would obstruct his successful reintegration. One Google search and Ram may be denied employment opportunity, housing facility; his children may come to know of his offence. The never-forgetting internet would never let him move on.

Institutional biases of police

Institutional biases and prejudices against women, minorities and certain castes in the Indian police force are well-known. According to the Status of Policing in India Report, 2019 by Common Cause and CSDS, every second police officer believes that Indian Muslims are more prone to committing crimes. The Indian police working under the colonial Indian Police Act, 1860 is known to discriminate against certain tribes solely on the basis of their physical features, occupations, customs, and ancestry.

The interaction of technology with these inherent institutional biases has the potential of further cementing biased narratives which are evident in the comment sections of the above instance of Ram. What is the guarantee that bias ridden police officers handling social media accounts would not post pictures of accused persons belonging to certain caste and religion more frequently?

Other implications

Such practice clearly encourages mob mentality and instant justice, which, in current times, have become a threat to the constitution itself.

Not merely pictures but any such detail of accused persons (say, name and address), that can reasonably lead to their identification, may become yet another attachment in police surveillance files. It sets assumptions and implications that may impact subsequent arrests, bails and sentencing decisions, not only in the matter at hand but also in subsequent matters.

Also read: It’s Time India’s Police Reclaimed Its Lost Time

Even from the point of view of policing, no legitimate purpose is served by posting pictures of accused persons. It cannot be justified on the grounds of legal obligations or of public interest. It rather has the potential of hampering the investigation, for instance, during the Test Identification Parade.

A social media presence for government bodies can help in “reaching out to their stakeholders and understanding their concerns and hear their voices”, but there are major risks to constitutional rights if these accounts are not handled carefully. Our constitutional vision tells us that ‘to live is to live with dignity’. This is a rather undignified way of dealing with citizens coming in contact with the criminal justice system.

Surbhi Karwa is an alumnus of NLU-Lucknow and NLU-Delhi and is currently working as a researcher. Pritam Raman Giriya is a fourth-year student at NLU-Delhi.