In an era dominated by digital interactions, the strategic use of social media has emerged as an integral aspect of professional communication and information dissemination. Recognizing its significance, government employees in the Union Territory of Jammu and Kashmir are provided with a meticulously crafted set of guidelines to ensure a judicious and compliant approach to social media engagement. Circular No. 09-JK(GAD) of 2023, meticulously issued by the General Administration Department, delineates the precise parameters within which government employees must operate to uphold professionalism, safeguard classified information, and adhere to the tenets of good governance.

Legal Framework :

The guidelines find their roots in constitutional and statutory provisions, notably Article 19(2) of the Constitution of India. This constitutional article acknowledges the right to freedom of speech while concurrently delineating the permissible limitations, including considerations of sovereignty, integrity, security, friendly relations with foreign states, public order, decency, morality, contempt of court, defamation, or incitement to an offense. Further legal underpinning is derived from the Jammu and Kashmir Government Employees (Conduct) Rules, 1971, and the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, providing the necessary framework for regulating the conduct of government employees in the digital landscape.

Prohibitions and Restrictions :

The guidelines impose specific prohibitions and restrictions on government employees' social media conduct, emphasizing the following key points:

1.  Confidential Information: Strictly prohibited is the publication, posting, or release of any information considered confidential or not meant for public consumption. Unauthorized sharing of official documents is expressly forbidden.

2.  Discussion of Government Policies: Prohibiting the discussion or criticism of government policies or actions on social media platforms, this restriction aims to prevent the dissemination of disparaging views in public or association meetings.

3.  Political or Communal Content: The dissemination of political or anti-secular and communal content is explicitly prohibited. This measure ensures that government employees maintain impartiality and avoid activities that may compromise the integrity of the government.

4.  Subversive Activities: Engagement in activities on social media that are, either directly or indirectly, subversive of the established government is strictly prohibited. This includes actions that may be detrimental to the government's reputation or its relations with other entities.

5.  Professionalism: Upholding professional standards in online interactions is paramount. Government employees are urged to refrain from posting content that is vulgar, obscene, threatening, or intimidating, particularly concerning co-workers or individuals.

6.  Grievances: Posting workplace grievances on social media, whether in the form of videos, posts, tweets, or blogs, is strictly prohibited. Employees are advised to utilize established channels for complaint redressal within their respective departments.

 7. Avoiding Scams: Cautioning against participation in giveaways and contests on social media platforms, which could potentially be scams, is emphasized. This is aimed at preventing the inadvertent spread of malware or the compromise of sensitive data.

Consequences of Violations :

The gravity of these guidelines is underscored by the stipulation that violations will be considered misconduct, inviting disciplinary action under the relevant rules. The spectrum of penalties includes censure, fines, withholding of increments and/or promotions, reduction in rank, recovery of pecuniary losses, premature retirement, removal, or dismissal from service.

Responsibility of Administrators :

In instances involving group platforms, administrators, if serving government/semi-government employees, bear the responsibility for disciplinary proceedings in the event of a violation within the group. This underscores the need for heightened vigilance and enforcement of guidelines within such digital spaces.

Conclusion :

While Circular No. 09-JK(GAD) of 2023 offers a comprehensive framework for regulating government employees' social media conduct, a closer examination reveals potential intricacies that merit consideration. The guidelines rely on broad terms such as "disparaging views" and "subversive activities," leaving room for subjective interpretation and possible inconsistencies in enforcement. This subjectivity could inadvertently lead to situations where the line between legitimate expression and violation becomes blurred, posing challenges for both employees and administrators tasked with implementation.

The prohibition on discussing government policies, while aimed at maintaining a positive image, might inadvertently stifle constructive criticism and hinder the government's ability to adapt to changing public sentiments. it is important for the government to seek commentary from their constituents. citizen feedback is considered to be the opinions,suggestions, and comments provided by the citizens regarding certain government policies,services,or other public mattes. it helps the government to identify areaes of improvement,more informed policy decisions etc.

Moreover, as the digital landscape is constantly evolving, the guidelines may struggle to keep pace with emerging technologies and communication trends. Social media platforms frequently introduce new features, and guidelines may need regular updates to address novel challenges or opportunities. Continuous review and adaptation are crucial to ensure that the guidelines remain relevant, effective, and capable of addressing the dynamic nature of social media and digital communication. The modern genesis of vicariously attributing culpability to a creator or administrator of a WhatsApp group for offensive, defamatory or objectionable content posted by a group member can be found in the recent decision of the High Court of Kerala on February 23, 2022, in the matter of Manual versus State of Kerala and another, 2022 Legal Eagle (KER) 91. The High Court of Kerala has largely followed the bright line laid down by the High Court of Bombay, the High Court of Delhi and the High Court of Madras in their previous decisions on this subject. As a rule, most common law jurisdictions have traditionally applied vicarious liability by employing the common law doctrine of respondent superior. It is noteworthy that superior courts have also authoritatively held in successive judgments that vicarious criminal liability can be attributed only if a penal provision of such nature is specifically provided in the underlying statute.

Briefly the High Court of Kerala, and the High Court of Bombay have described the functioning of WhatsApp, which is an instant messaging application, on these broad lines. WhatsApp is an instant messaging platform which can be used for mass communication by opting to create a chat group. A chat group is a feature on WhatsApp, which allows joint participation of members of the chat group. Group Administrators, as they are generally called, are the ones who create the group by adding or deleting the members to the same. Every chat group has one or more group administrators, who control participation of members of the group by deleting or adding members of the group. A group administrator has limited power to remove or add other members to the group, can restrict or grant permissions to group members, such as the ability to send messages, change the group’s subject, enforce group rules and guidelines. Once the group is created, the functioning of the administrator and that of the members is at par with each other, except the power of adding or deleting members to the group. The Administrator of a WhatsApp group does not have power to regulate, moderate or censor the content before it is posted on the group. But, if a member of the WhatsApp group posts any content, which is lascivious or appeals to prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained or embodied in it, such person can be held liable under relevant provisions of law.

When a member of the WhatsApp group posts such objectionable content, its liability has often been, as a corollary, sought to be attributed to the administrator of such group. Typically, allegations such as the aforesaid are often charged under Section 67 of the Information Technology Act, 2000 (the “IT Act”). In the Manual versus State of Kerala case (supra) the accused was inter alia charged under Section 67 of the IT Act, along with Section 13, 14 and 15 of the Protection of Children from Sexual Offence Act, 2012 (the “POSCO Act”), for the predicate crime, as was alleged therein. Whilst, coming to its final findings the Hon’ble Court analysed the jurisprudence surrounding the doctrine of vicarious liability, specifically to the extent of the presence of a special penal provision under the underlying statute being largely a sine qua non for attributing vicarious liability, to the admin of the WhatsApp Group, and the strict, secondary liability that arises under the common law doctrine of agency.

Whilst Manual versus State of Kerala case does not exhaustively analyse this aspect, superior courts in India have ratified that to constitute an offence under Section 67 of the IT Act, a person must publish or transmit an obscene material in electronic form. In view of the allegations made in a First Information Report and material placed in the charge sheet, the words employed in Section 67 of the IT Act are required to be analysed to verify if the allegations against the accused meet the threshold. In the specific conspectus of the Manual versus State of Kerala case, the Hon’ble Court confirmed that there was no allegation or material to suggest that the admin of the Whatsapp group published, transmitted or caused to publish or transmit any obscene material electronically. One must also appreciate the term ‘Intermediary’ as defined under Section 2 of the IT Act, that refers to any person who on behalf of another person receives or stores or transmits that record or provides any service with respect to such record. In cases including but not limited to the Manual versus State of Kerala case, whereunder courts have assessed the liability of the admin of a WhatsApp group in the backdrop of the definition of intermediary, the admin was not found to have met the threshold of the definition under the IT Act. Previously, in the matter of Avnish Bajaj versus State of (NCT) of Delhi, the Apex Court whilst determining the vicarious liability of the Managing Director of a Company qua listing of an obscene MMS on the company’s website, had held that as the Indian Penal Code did not recognize the concept of automatic criminal liability of a director of a company when the company itself was not mentioned in the charge-sheet, the Managing Director ought not to be held liable for offences requiring men rea or strict liability.

It follows from the aforesaid background, that in the absence of a specific penal provision creating vicarious statutory liability for offences requiring mens rea or strict liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of such group. Put differently, as has been held by the High Court of Bombay in the case of Kishore versus State of Maharashtra (Supra) a group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was common intention or a pre-arranged plan and acting in concert pursuant to such plan by such member of a WhatsApp group and the administrator. Common intention cannot be established in a case wherein a WhatsApp service user is merely acting as a group administrator. When a person creates a WhatsApp group, he cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group.

Interestingly, in a conflicting order, the High Court of Allahabad has contemporaneously on February 23, 2022 in the matter of Mohd. Imran Malik versus State of U.P. and Another inter alia ruled, based on the peculiar facts of the case, that the liability of an admin of a WhatsApp group is co extensive with the group member posting the objectionable post. Whilst coming to the foregoing brief conclusion, the Allahabad High Court, in its order, has not theoretically distinguished or analyzed any of the aforesaid judgments by particularly applying the rudimentary principles of vicarious liability in the manner discussed hereinabove. It is also apparent that in the Mohd. Imran Malik case (Supra), liability for the objectionable post has not been extrapolated by applying the scheme under Section 67 of the IT Act (in the manner discussed above), per contra, liability in this case has been attributed to the admin of the WhatsApp group by invoking the scheme of Section 66 of the IT Act. Whilst the Hon’ble Allahabad High Court does not reflect on the basis of invoking Section 66 of the IT Act, the limited facts presented in the aforesaid case leaves little room for contemplating any basis thereof.

In order to inject uniformity in the foregoing decisions of the High Courts, the Hon’ble Supreme Court may well have to authoritatively rule on the subject matter. It cannot be emphasised enough that the subject matter is an evolving jurisprudence, particularly in the conspectus that the question of attributing criminal liability to the administrator of a WhatsApp group shall have to be nuanced by several factors. To say the least, the aspect of common intention and mensrea shall have to be tested by the courts by applying the foregoing principles to the peculiar facts of each case.

To foster a more resilient regulatory framework, engaging in an ongoing and inclusive dialogue with stakeholders, including government employees, legal experts, and technology professionals, would be beneficial. This collaborative approach could help identify potential pitfalls, refine ambiguous terms, and introduce flexibility into the guidelines to accommodate the evolving nature of online communication. Ultimately, an adaptive and transparent regulatory approach is vital to strike the right balance between preserving the government's image and upholding the democratic principles of free expression and informed public discourse.

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