Arrested for Playing PUBG!

By Nitesh Mishra

“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” – Charles-Louis de Secondat, ‘The Spirit of the Laws’

Introduction

Recently, the Gujarat Police has arrested some students found playing Player Unknown’s Battleground, popularly known as ‘PUBG’ in Rajkot. It is a mobile game required to be manually downloaded by the user.  The cases were registered under Section 188 of the Indian Penal Code, 1860 (“IPC”), and Section 135 of the Gujarat Police Act, 1951 (“GPA”). This was in pursuance of a notification issued by the Police Commissioner of Rajkot, under Section 144 of Code of Criminal Procedure, 1973 (“Cr.P.C.”), and Section 37(3) of the GPA, on March 6, 2019, which ordered prohibition on playing the game across the territory of Rajkot City area. Further, the notification ordered the public at large to inform the police station if it comes to their knowledge that some other person is playing the game.

In the course of this article, I shall argue that the said notification is an abuse of power by the Police Commissioner. Arrests under it evidences the fact that laws in India could be so paternalistic and draconian, that the State wants to control even the applications we use on our mobile phones, and it could result in arrests if we did not comply with an executive order, prohibiting the use of a certain application.

The Notification is legally untenable.

Section 144 of the Cr.P.C. empowers the executive magistrate to issue an order in urgent cases of nuisance or apprehended danger. The purpose underlined in the provision is to provide adequate, reasonable and temporary remedy to an emergency situation that has arisen, as stated in Gulam Abbas v. State of Uttar Pradesh. ‘Emergency’, as explained in the Ramlila Maidan Incident case, is a serious, unexpected and potentially dangerous situation, requiring immediate action. Further, in Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta, it was stated that an order passed under Section 144 can remain in force only for two months, and it cannot be repetitive in nature, which would render it a permanent or semi-permanent nature. Powers conferred under this section are comparable to that under Section 37 of the GPA, as stated in the Gulam Abbas case.

Now, playing PUBG does not qualify as an emergency because it is neither unexpected nor does it pose an imminent serious harm to the public. The notification says that the order was being passed because it has come to its knowledge from various sources that PUBG tends to make people violent and distract them from academics. I argue that the notification lacks sufficient reasons and reliable empirical data to enable the authorities to make claims of increased violent traits. Also, distraction from studies is not a situation of emergency, which poses a risk to public tranquillity.

Moreover, issue of the said notification suggests that either the authorities believe that psychological conditions like violent behaviour can be tackled by merely banning the game for two months, which is improbable, and hence, making the prohibition not an adequate, reasonable and speedy remedy; or they plan on issuing repetitive orders for the purpose of tackling the issue, which is beyond their powers under Section 144. Hence, in either of the conditions, prohibition on playing PUBG, using an order under section 144 is excessive and arbitrary use of power by the authorities.

The arrests are arbitrary.

Section 37 of the GPA empowers the Commissioner and the District Magistrate to issue orders prohibiting certain acts for prevention of disorder. On any contravention of the said order, Section 135 of the GPA is invoked and the deviant shall be punished with a fine which may extend to one hundred rupees. Hence, the police did not derive the authority to arrest the person under this section.

Moreover, under Section 188 of IPC, 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. Therefore, mere disobedience of an Order is not offence. Disobedience coupled with the enlisted consequences shall constitute an offense, also reiterated in the Ramlila Maidan Incident case.

The anticipated consequence of the proscribed act, as stated by the authorities, is mental annoyance to the users of the game, which falls beyond the ambit of this provision. The specific conduct of the accused having the potential to cause annoyance or interference with public safety has to be pointed out, as stated in Pradip Chowdhury v. State. The authorities are lacking in this, since, there is no independent proof available that the accused could have interfered with the public safety, merely by playing PUBG. Hence, the arrests of the accused are not legally valid.

Conclusion

The Supreme Court of India noted in Arnesh Kumar v. State of Bihar that arrests bring humiliation, curtail freedom and cast scars forever. The police have been using the power to arrest as a tool of harassment and a source of corruption. Such draconian arrests, for petty actions like playing a game on the mobile phone tend to produce counterproductive effects. If convicted, it would add a criminal record onto a young person’s profile, which he would have to explain throughout his life, including at passport issuance and renewals. Such a person would have low regards for law and state machineries for the rest of his life, which would pose a greater problem for the authorities at a later stage.

If a certain section of the society is against the action of people playing PUBG, there is supposed to be a dialogue between the parties. Instead, the authorities took up a paternalistic attitude and banned the people from playing the game, thereby curbing the personal liberty of the people at large, and reminding us much of the colonial regime.

Arrests for such petty actions lower the deterrence effect of the criminal law. The purpose of the criminal law is to deter the people from committing acts which are defined as offences. If the day to day activities of the people are defined as an offence and result into arrests by the State machineries, then the people shall feel alienated from the law and have strong incentives for not following it. Ultimately, it is the law which is made for the people, the people are not made for the law.

[The author is a student of National Law University, Delhi, with a keen interest in the interdisciplinary approach to law, and legal writing.  He prefers to keep himself updated with the latest developments in law and the working of the State machineries.]