Misuse of social media platforms by terrorists to be borne in mind by courts while sentencing: Delhi HC

New Delhi: The Delhi High Court has observed that while encrypted social media platforms permit privacy and the freedom of speech and expression, their misuse by terrorists and banned organisations has to be borne in mind by courts while awarding sentences.

The high court's observation came while modifying the jail term of two women, convicted for being associated with and extending support to the banned Islamic State Khorasan Province (ISKP), an affiliate of ISIS.

The jail terms of convicts Hina Bashir Beigh and Sadiya Anwar Shaikh were modified to six years from eight and seven years respectively.

"Considering the specific facts of the present case, the proliferation of crime through the internet and social media platforms cannot be ignored. The fact that the appellants (Beigh and Shaikh) used fake identities to conceal their original identity and avoid tracing also cannot be ignored," a bench of Justices Prathiba M Singh and Amit Sharma said.

Both the women had approached the high court, seeking a reduction of jail term and parity with another convict who was sentenced for the period already undergone in jail by the trial court.

The high court, however, said the two women could not claim complete parity on facts with the third person as the roles ascribed to them were also not identical.

"While encrypted platforms permit and encourage privacy and freedom of speech and expression, the misuse of the same by terrorists and banned organisations also would have to be borne in mind.

"The appellants are technologically savvy persons who have made use of their educational qualifications to promote terrorism and incite offensive activities against the country," it said.

The court further said that such cases would have to be dealt with differently from those involving innocent persons, who may have been pulled into crime without their knowledge.

Factors such as funding through Bitcoins and the use of journalistic credentials to publish and disseminate magazines to incite violence also cannot be ignored, it added.

The bench also referred to the sentencing policies of some overseas countries in terrorism-related matters.

"While awarding sentences for terrorism-related activities, the courts will have to, not merely bear in mind the crime committed but also the impact of the same and the propensity of the person to indulge in a similar crime in future," it said.

The intent behind providing a range of punishment that could be awarded for an offence is to give the courts sufficient discretion to consider various aggravating and mitigating factors while awarding sentences, the bench said.

"Though there is no doubt that the discretion has to be exercised judiciously, it cannot be expected to be uniform. In a country like India, where there are possibilities of innocent persons being encouraged towards terrorism, it is not merely the rights of the convict that have to be considered but also the impact of the said convict being allowed to integrate back into society which has to be considered," it said.

The high court noted that Beigh has been in custody since March 23, 2020, and the period of sentence undergone is around four years and nine months.

Shaikh has been in custody since July 29, 2020, and the period of sentence undergone is around four years and four months, it noted.

The court said both the women had shown their active involvement with the proscribed terrorist organisation and Beigh, being the wife of convict Jahanzaib Sami, had permitted her laptop to be used by her husband. Even their phones were exchangeably used by each other.

"Reasonably, she (Beigh) cannot be said to have been ignorant. Insofar as Shaikh is concerned, she was a student of journalism when she was arrested. As per the NIA's submissions and other news reports, she was also suspected to have been earlier involved in the J-K blasts and was let out with a warning considering her age at that time," it noted, adding that Shaikh was 20 years of age at that time.

The high court said both the women may not be fully aware of the complete plans of Sami could be mitigating factors but their association with the main accused as also the circumstances in which they were seen inciting violence through publications during the anti-Citizenship Amendment Act (CAA)/ National Register of Citizens (NRC) protests, would have to be borne in mind.

According to the prosecution, Beigh was accused of propagating or circulating objectionable ISIS materials which were used in the anti-CAA protests for inciting Muslims to take up violence in the name of jihad and spreading hatred against non-Muslims.

They were convicted under the provisions of the Unlawful Activities (Prevention) Act.