Invocation of NSA on YouTuber Manish Kashyap raises an interesting question

The Supreme Court yesterday dismissed the petition filed by YouTuber Manish Kashyap wherein inter alia he had sought the quashing of charges under the National Security Act (‘NSA’). In this post, I argue that this case raises an interesting question about the application of the Act on individuals with considerable social media presence. I argue that given their ability to reach and influence masses, they are likely to meet the high threshold of ‘public order’ required under the Act.

Before getting to my argument, let’s recap the events leading up to the petition. In March, Kashyap was arrested in Bihar for allegedly creating and uploading doctored videos of Bihari migrants being attacked in Tamil Nadu. It must be noted that Kashyap has a considerable following on social media and his YouTube channel ‘Sach Tak News’ has over 63 lakh subscribers. Hence, the alleged fake videos were widely shared on social media. The said videos were debunked as fake by the police department and fact checkers. Last month, Kashyap was detained under the draconian NSA in Tamil Nadu. Against the detention he approached the Supreme Court which refused to grant him relief under Article 32 of the Constitution and observed that he may approach the necessary authorities. At the outset, I must clarify that there are several videos and articles claiming that the Court has rejected his petition on merits, however that is not the case. Instead, the Court has granted him the liberty to approach the necessary authorities which would be the Advisory Board under the NSA or the High Court. I urge the readers to not believe or rely on videos deprecating the Supreme Court’s order.

Coming to my arguments on the invocation of the NSA. The NSA is considered a draconian legislation as it allows the central or state government to detain an individual for a maximum period of one year if they are satisfied that s/he may act in a manner which shall be prejudicial to (a) defence of India; (b) relations with a foreign power; (c) security of India; (d) security of state; or (e) maintenance of public order. In Kashyap’s case, the government is likely to have invoked the ground of maintenance of public order which means an act that is likely to spark tensions requiring police intervention to restore normalcy.

The NSA is a preventive legislation and not punitive which means it is invoked to prevent certain actions in future. In other words, the concerned government must possess enough material to show that in future a person may act in a manner which prejudicially affects the above-mentioned grounds. The Act cannot be invoked to punish an individual for his/her previous actions no matter how heinous. This was aptly explained by the Supreme Court in Fazal Ghoshi v. State of U.P and Others, where it observed,

It is pointed out that the National Security Act provides for preventive detention and preventive detention is intended where it is apprehended that the person may act prejudicially to one or more of the considerations specified in the statute. There is no doubt that preventive detention is not intended as a punitive measure, as a curtailment of liberty by way of punishment for an offence already committed. Section 3 of the Act clearly indicates that the power to detain thereunder can be exercised only with a view to preventing a person from acting in a manner which may prejudice any of the considerations set forth in the section.”

The Courts have time and again urged the governments to apply the NSA sparingly. To this effect in A.K. Roy’s case, the Court had remarked, “While construing laws of preventive detention like the National Security Act, care must be taken to restrict their application to as few situations as possible. Indeed, that can well be the unstated premise for upholding the constitutionality of clauses like those in section 3, which are fraught with grave consequences to personal liberty, if construed liberally.” Unfortunately, governments have rarely paid heed to these warnings and the NSA has been routinely invoked. 

Unique Element: Kashyap’s Social Media Clout

In Kashyap’s case, for the charge of NSA to succeed we need to consider whether (a) he is likely to commit the offence in future, and (b) whether the act is capable of affecting public order.

First, an analysis of court decisions highlights that the invocation of NSA has only been upheld where the possibility of the alleged crime being repeated is high. The threshold is higher especially in situations wherein the offender is already in custody.  To reach this conclusion, Courts rely on criminal antecedents of the accused. In the proceedings before the Supreme Court, the Tamil Nadu government has argued that Kashyap is a habitual offender and has previously published misleading content as well. If the government is able to prove a consistent pattern of publishing fake/misleading content by Kashyap, it is likely to succeed in its charge.

Second, to assess whether the ground of ‘maintenance of public order’ is attracted the Courts assess whether the act is capable of disturbing public tranquillity  by creating panic in the society. If the alleged act will potentially only affect few individuals and not a larger audience, it disturbs ‘law and order’ and not public order. In some cases, the Courts have held that public order is attracted wherein police intervention was required to restore normalcy. This is where Kashyap’s case gets interesting as given his social media presence and reach, videos made by him are bound to reach masses and arguably cause panic in the society, especially if they turn out to be doctored. A similar argument was made by Senior Advocate Kapil Sibal before the Supreme Court who stressed on Kashyap’s lakhs of followers while defending the invocation of NSA.

This is an important and interesting argument because individuals with considerable social media presence must exercise caution while expressing their views or sharing content. If the said content is doctored or misleading, it is bound to influence people and cause unrest in the society. To my knowledge, this argument has not been made before in context of NSA and earlier cases were concerned with speeches/slogans uttered by individuals to an audience in a physical space (See, S. James Peter v. Government of Tamil Nadu, 2009 SCC Online Mad 759. Earlier the high threshold of ‘public order’ was rarely reached because proving that an act affected a larger audience was tough, however, that threshold will be lower for people with social media clout. It will be interesting to see whether the authorities and Courts take the social media presence of Kashyap into account while deciding his plea.

Views are personal.

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