[Ed Note: The following post has been authored by Anirudh Vijay, a fourth year student of B.A. LL.B. (Hons.) at Faculty of Law, Jamia Millia Islamia, New Delhi. In an engaging read, Vijay talks about how the Gujarat government’s decision to ban popular game PUBG is problematic, and provides recommendations in this regard. Read to find out more!]

Introduction

Recently, in the Indian state of Gujarat, several Police Commissioners have issued orders restricting use of the popular game of Player Unknown’s Battleground (“PUBG”) under Section 144 of Code of Criminal Procedure, 1973 (“Cr.P.C.”). In pursuance of the same, 10 youngsters were reportedly arrested for disregarding these orders under Section 188 of Indian Penal Code, 1860 (“IPC). Subsequently, a PIL was filed in the Gujarat High Court by the Internet Freedom Foundation challenging the ban orders & arrests made by Gujarat Police. However, it was dismissed on the ground that the scope of the said petition does not fall under the ambit of “public interest litigation”.

In contrast, another PIL was filed in Bombay High Court by an 11-year old through his father, praying for initiation of PUBG ban, on the grounds that it promotes immoral conduct such as violence, aggression, gaming addiction, cyber-bullying etc. Following this, a Bench of the court directed the Secretary of IT Ministry to review the game and take actions if any ‘objectionable content’ is found in it. The matter is presently pending before the court.

The questions that arise here whether the orders of the Gujarat Police to ban PUBG are arbitrary or not; and whether the arrests made by the police in this regard are illegal or not. The present post shall first address and answer the above questions. This shall be followed by the analysis on the interplay between the judicial and executive process of banning the game. Subsequently, the post will put forth recommendations based on the overall discussion.

Why the Orders on PUBG Are Arbitrary & Unreasonable?

It is S. 37(3) of Gujarat Police Act, 1951 (“GP Act”) and S. 144 of Cr.P.C. that provides power to the Police to issue orders in urgent cases of nuisance or apprehended danger. The English translation of concerned orders states:

“…it comes to our knowledge that due to games like PUBG GAME/MOMO CHALLENGE violent traits are shown to be increased in youth and children. Due to these games, the education of children and youth are being affected and it affects the behaviour, manners, speech and development…”

A perusal of the order shows that the police had issued it without any substantive evidence to prove PUBG provoking violent traits. In fact, the order was issued based on mere knowledge and perception of threat without adequate evidentiary substantiation. This is in complete violation of the Ramlila Maidan Incident, In Re [(2012) 5 SCC 1] case, where the Supreme Court of India held that Section 144 cannot be invoked in case of mere apprehension, without any material facts to indicate that the apprehension is imminent or genuine.

Secondly, orders can be issued under Section 144 if there exists an urgent situation which could result in grave consequences as held in the case of Madhu Limaye v. SDM Monghyr [(1971) AIR SC 2486]. Certainly, playing PUBG does not constitute any urgent or grave consequences and is merely a game for the purpose of entertainment. Moreover, the allegation on PUBG having violent traits to cause grave consequences, was recently rejected by the Nepal Supreme Court on April’19, who stayed the PUBG ban imposed by Nepal’s government.

Lastly, the Police orders have imposed restriction on the right of free speech & expression under Article 19 of our Constitution by banning PUBG, and has thereby disregarded the ‘test of proportionality’, as applied by A.K.Sikri J. in K.S. Puttaswamy v. Union of India [(2019) 1 SCC 1, p. 132]. As per this test, the state can impinge a right (i) if there exists a law for it; (ii) such that the restriction must have a legitimate state aim; (iii) and should not have any disproportionate impacts on the right’s holder. In relation to (i), it is true that the Cr.P.C. contemplates statutory provisions to restrict such rights. However, in the present case, the Police officials have not properly adhered to it while imposing the ban, as has been discussed above. As for (ii), a ‘legitimate’ aim for the state entails making a lawful approach to maintain players’ health and tranquillity. Apparently, the police’s order does not constitute a legitimate aim as it was based on the rationale of controlling moral panic (and not health), and is bad in law. The aim pf “moral panic” is subjective and discretionary as what is moral for one, may not be moral for other. Moreover, in relation to (iii), the arrests of students made by the virtue of the said orders will have disproportionate impacts on them as they were arrested for merely playing a game. These arrests will in harm the students’ reputation at school, college and office, having a deeply negative impact on them. A proportionate approach would be psychological counselling & social support and not criminal prosecution or imprisonment initiated by the ban. Hence, the orders of the Police Commissioners are arbitrary and unreasonable.

Why the Arrests Made by Police are Illegal?

Statutorily, an arrest can be made under Section 188 of IPC for violating Section 144 of Cr.P.C. A person could be arrested only if he disobeys the order duly promulgated by a public servant, and if such disobedience causes, tends to cause, or risks obstruction, annoyance or injury, to any person lawfully employed. However, a mere disobedience of Section 144, without the aforesaid elements, is not a ground for arrest under Section 188 and the same was observed by the court in the case of Ramlila Maidan. Interestingly, Mumbai police used PUBG to promote helmet necessity for riders by sharing an image of a character of the game wearing helmet on their Twitter handle. Such promotion of game by public servants reflects that even the state’s own machinery does not apprehend any ‘obstruction, annoyance or injury’ being caused by playing PUBG. Certainly, the arrest made are illegal as it was done beyond the scope of the concerned provision.

Moreover, in the case of Gulam Abbas v. State of Uttar Pradesh [AIR 1981 SC 2198], the Supreme Court held that the purpose of Section 144 is to provide adequate, reasonable and temporary remedy to ‘emergency cases’ of nuisance or apprehended danger. Similarly, in Acharya Jagdishwarand Avadhuta v. Police Commissioner, Calcutta [AIR 1984 SC 512], the Supreme Court held that the nature of the order under Section 144, Cr.P.C. is intended to meet ‘emergent’ situation. In the present case, the Police orders gave reasons that the education of children are being affected through PUBG. This effect on their studies does not constitute any ‘emergent’ situation under which there exist any risk of apprehended danger.

Thus, the ban orders as well as the arrests made by the Gujarat Police are unreasonable, arbitrary, illegal and are exercised beyond the permissible limits of the statutory provisions. If at all, a PUBG ban is found to be required, there is a proper procedure that has been statutorily stipulated to initiate it, as has been explained below:

How to Initiate A Ban On PUBG?

The Information & Technology Act, 2000 (“IT Act”) has set out the complete process of blocking Apps or online games under the Procedure and Safeguards for Blocking for Access of Information by Public Rules, 2009 (‘Rules’). Such blocking can be done either by the officers defined under the IT Act [I] or by any order issued by the court of law [II].

I. By the Executive

Rule 4 states that a “Nodal Officer” should be compulsorily be appointed by the organisation (mainly the state-government) to whom a citizen can submit his/her request for blocking any electronic information. After examining the request, the Nodal Officer transfers the application of request to the “Examination Committee” headed by the “Designated Officer”. As per the Rules, the Designated Officer is appointed by the Central government along with other representatives of Ministry of I&B, Law & Justice and Home Affairs, who are not below the rank of a Joint Secretary. This Committee checks whether the application is in accordance with Section 69A of IT Act or not and in turn submits a recommendation to the Secretary, Dept. of IT though the Designated Officer.

The direction of blocking the information is passed after the approval of the recommendation by the Secretary. This direction should also provide the reasons for blocking the game. A Review Committee, set up by the Central government, further validates this direction by setting up meetings after every 2 months and may set aside the blocking orders (if direction is not in conformity with Section 69A of the IT Act), as prescribed under Rule 14.

II. By the Court

The Rule 10 authorizes the court to block any electronic information and bounds the Designated Officer to implement the same as soon as he receives the copy of that order. Section 79(3)(b) of the IT Act holds intermediaries liable for non-compliance of the court’s order. For example, the Court in 2017 took suo moto cognizance to ban the Blue Whale Game and directed the government & intermediaries like Google Play, Apple Store etc to remove the said game from their domains.

Further, as mentioned above, any such ban must be in conformity with Section 69A of the IT Act, which provides a list of grounds based on which any electronic information may be blocked. This list includes reasons such as security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence. The potentially suitable ground in the PUBG case, namely ‘preventing incitement to the commission of any cognizable offence’ has itself been interpreted as cognizable offence by the Indian courts. Therefore, the court can initiate a ban on the PUBG only after it is proved by the authorities that such game contains content which can led to the commission of any cognizable offence. Similarly, the concerned authorities defined under the Rules, 2009 can impose a ban only if they find the working of the App in contradiction to the Section 69A of the IT Act, 2000. Although Bombay High Court has made an effort to adhere to rules set out under IT Act, 2000 by approaching the Secretary of IT Ministry, yet both Gujarat Police and Gujarat HC have miserably failed to acknowledge the banning procedures under IT Act, 2000. Moreover, the Gujarat Police have processed ban which do not met the requirements of Section 69A of IT Act, 2000.

Recommendations

In view of the above discussion and analysis, the author would like to propose following recommendations:

1. The Police officials must release all the arrests made by the virtue of the PUBG orders with immediate effect.
2. The state must ensure that orders under Section 144 of Cr.P.C., which are exercised beyond the excessive limit and infringes the Supreme Court verdicts, should not be passed.
3. The concerned authorities of the state should first approach the Nodal Officer, in cases where the banning of any digital source is required. The process of such banning should take place only as per the procedures laid down under IT Act, 2000.
4. The state should resort to Section 144 only in extraordinary situations where there are no other reasonable means of preserving public health and tranquility.
5. Psychological counselling and social support should be preferred over criminal prosecution and imprisonment as a remedy to counter the intense gaming addiction.