Restricting Freedom with Excuses of Responsibility

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The Indian blogosphere has been discussing the implications of a recent Supreme Court ruling reprimanding a Kerala-based 19-year-old youth for allowing so-called libelous comments on a community he started on Orkut. The plaintiff that was offended was the Shiv Sena who are widely regarded in the Indian political circles as a responsible and reasonable outfit . Their primary complaint was that by accusing the Sena of diving the country on communal ground, the youth has hurt public sentiments. Wait! Not the youth but the anonymous commenters on his community on Orkut had hurt public sentiments. After all, he should be held responsible for every unmoderated comment on a third-party social networking site, right? The popular opinion not only in the mainstream media or the people but also among bloggers is that if you have the freedom of expression you should use it responsibly. Sounds great, right? Almost conjures images of a teary Spiderman having awesome powers only to be shackled by responsibility.

The Supreme Court ruling said to the youth, “You are a computer student and you know how many people access internet(sic) portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.” I’m glad not to be a computer student because now I have no idea of how many people access Internet portals and can be exempt from blogging with responsibility. Jokes aside, although everyone agrees that we should blog with responsibility no one ventures into defining what responsibility is and how fragile public sentiment can be. Blogging aside, can political parties now simply cite “hurting public sentiment” by suing journalists who dare to investigate their actions during or after elections? If you say journalists are different, I ask why. They don’t seem to be limited by their professional ethics given the recent coverage of Mumbai attacks. By allowing criminal proceedings to be filed against the youth, the Court may have opened the doors for frivolous charges. Intimidation of ordinary people by merely threatening to file suit can be a viable alternative to squelch criticism. Will a blogger living outside India be required to come down to India for his ‘tareek pe tareek‘ for merely voicing his opinion against a certain individual or organization? Any reasonable individual wants to avoid going to court in order to stay away from a long legal process and this might be just the crutch ‘offended parties’ may use to stave off critcism. Even the Supreme Court admits this in Indian Oil Corporation v. NEPC (2006) [via]:

“a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement.”

But sadly, the law is not yet on our side. Clause (2) of Article 19 of the Indian Constitution elaborating on freedom of speech includes the following “reasonable restrictions” – security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to an offense, sovereignty and integrity of India. Please tell me how these restrictions are reasonable. As you see, anything under the sun can be categorized as an restriction to your freedom of speech. If I say something innocuous and that leads to couple of weirdos smashing shop windows in the town, all it does to get me into trouble is the weirdos saying that my words made them do it. My freedom of speech will be curtailed under “public order” or “incitement to an offense” restrictions. Shouldn’t actions be punished instead of words? Arundhati Roy regularly violates her freedom of speech rights by advocating independence for Kashmir thereby endangering “sovereignty and integrity of India”. But apart from calling her ignorant, I wouldn’t want to reprimand her for what she thinks as a solution to the Kashmir issue. This post in itself can be considered as a “contempt of court” since I dared to talk against the Supreme Court ruling. Where does it stop?

“Restricting Freedom with Excuses of Responsibility” [Short URL: http://www.ipatrix.com/?p=2874] was published Wednesday, February 25th, 2009 at 1:59 pm by Patrix, filed under 9rules, DesiPundit, India, Law, Weblogs, and tagged as blogging, freedom of speech, Law. Both comments and linkbacks are closed.

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bloghopper
I dont get the “tareek pe tareek” reference. Pliss to ssplain.

http://www.ipatrix.com Patrix
Sunny Deol with his dhai-kilo-haath in Damini

http://nitwitnastik.wordpress.com nitwit nastik
This is seriously ridiculous. I agree with you patrix. So in effect we won’t have any freedom of speech. Where the Supreme court should be protecting civil liberties, they are trying to clamp the iberties of bloggers. I wonder if the judges tried to get some knowledge about 3rd party social networking sites before they passed that judgement.
It’s sad that the same shiv sena and RSS who regularly vilify other religions in public are not held accountable for their words.
http://uberdesi.com Santosh
Basically (at least in India) it comes down to people with access to legal resources sue those without and those without end up on the wrong side of the law.

http://www.ipatrix.com Patrix
That is exactly what the Sena is trying to do; apart from forcing the person out in the open where he can be physically threaten as Sena is known to do. Would the Sena accept a settlement wherein the alleged death threat is deleted and the community is allowed to exist?

http://dhananjay.nene.in Dhananjay Nene
I would differ with you on the choice of words around the link to my post. While I have clearly mentioned that people should maintain “responsible civility” in their communication and should made “responsible to defend themselves against charges” primarily referring to accountability. I think it would be great if we all used our freedom to express in a responsible manner, but that simply was not the focus of my post – the focus was that having made an expression, we can’t walk away from accountability for the same. The axis of accountability and responsibility down which each of one has been arguing are two different ones even though related.
With regards to the gist of your post. Yes, there is indeed a lot of cause for worry for many of the issues you mention. But I would also be worried if the state did not have any legal mechanism to constrain “true” disruptions to public order. India with its high diversity, large ethnicities, high religion and caste charged atmosphere is always sitting close to a powder keg away from a stupid ill thought out remarks which inflames passions and results in wanton destruction (I am not referring to politically inspired destruction here). I think the way it has worked is that state has empowered itself far more as in the situation you point out, and even though prosecutions have been zealous in their application, the judiciary has shown remarkable restraint in confirming their application.
Regarding the potential for harassment, I agree with you. This is a real worrying issue. Thats an issue with legal infrastructure not legal principles. I think the solution to that will also lie in managing that legal infrastructure – not necessarily in the legal principles.

http://www.ipatrix.com Patrix
India with its high diversity, large ethnicities, high religion and caste charged atmosphere is always sitting close to a powder keg away from a stupid ill thought out remarks which inflames passions and results in wanton destruction
Don’t you think we are a sensitive lot and take offense at pretty much anything that is said or done? Case in point – the Billu Barber controversy. Basically, we like to control thought and expression and not the actions that purportedly stem from such thoughts. So if someone indulges in rioting thanks to what I said, I’m guilty not the person who was involved in violence. As I said, what you consider responsible utterances might not be considered responsible by Bal Thackeray who will accept nothing less than us calling him Hindu Hriday Samrat. Are you expected to massage his ego because several of his Sainiks do? Who sets the bar for responsibility. As I’ve noted, the state has practically barred everything so why do we even have the pretense of free speech. Let us scrap it and save us lot of trouble. We can have one rule – saying anything you want but if anyone, I mean, anyone gets offended, you will have to suffer the consequences backed by the full might of the law. In that case, asically silence is the best option (like the Indian Express blank editorials during the Emergency) but who knows someone might get offended at that too.

http://dhananjay.nene.in Dhananjay Nene
As an Indian Population we are a sensitive lot. Yes. No defense. Which is why perhaps even if a bit unfortunate, the laws are structured the way they are and it could be another two or three decades before we as a collective mass of people become desensitised. I would want it to be different, but you or I cannot wish it into happening. It was education that created a strong Indian Diaspora. It was education that created the Indian Services boom. It wil be education that will over time create a more perceptive rather than a reactive populace.
Having said that I draw a very different conclusions than you do, but as you mentioned in a different comment, thats a matter of personal preferences (or proclivities in this case).

http://dhananjay.nene.in Dhananjay Nene
Sorry for the complete screwup in English in paragraph 1 of last comment. Also I meant axis of responsible communication not axis of responsiibility.
Anshuman
[Please read my post on the same: http://anshumanblog.blogspot.com/2009/02/critique-of-ajith-d-case.html
Dhananjay, Orkut has kids from 12 years onwards. Can we expect them to internalize Article 19(2)? Social forums, blogs etc are a way to express yourself. That may not be pretty at times, but are the courts going to prosecute puffed-up kids? Has the Shiv Sena nothing better than to go checking out “I hate” communities? If a kid blasts his gob off on the internet, he is taken to the SC. What is a ‘reasonable’ manner of expressing oneself?
Also, although the judiciary has been remarkable in protecting the integrity of our rights, when it comes to free speech, we find a mixed bag at best. We have been adamant in holding that 1st Amendment analogies cannot be drawn. Fair enough. But we have not held the line dividing ‘reasonable’ and undesirable distinction.
http://dhananjay.nene.in Dhananjay Nene
Anshuman,
I continue to get surprised by how quickly some of us interpret things so quickly in the extreme, so am going to take you up on it. I think the courts are going to draw a distinction of below 18 or above 18. You are just as aware of that so your argument of a 12 year old is facetious to say the least. Whether Shiv Sena has nothing better to do is actually completely irrelevant to the topic at hand. The kid has a right to vote so why cant he be taken to court (he himself went to the SC mind you). So while high on emotion, and to be candid emotions I share, the entire first paragraph is poor on substance.
India is imperfect and India is a mixed bag. But whatever shape and form it is – it has constitutionally charged the judiciary with making the distinction, and while imperfect it hasn’t done too poor a job imo.
Expression and accountability cannot be delinked and if accountability requires being in a court to defend oneself, so be it. The real underlying issue in this case is the potential nuisance / harrassment value of defending oneself and the asymmetry of powers that can be leveraged. Instead of appealing to the legislature and the executive to fix that problem (which will get fixed only by substantially increase the budgetary allocations and number of courtrooms and judges) we’re slamming the judiciary on a non existent freedom of expression issue (it could become one if the courts declared him guilty).

http://anshumanblog.blogspot.com Anshuman
1. You see, as a law student, I’m concerned as to there being absolutely no parameters diffrentiating free speech and ugly speech. A former US Supreme Court judge was once deciding a case on obscenity w.r.t. a French movie, ‘The Lovers.’ He said this movie is obscene. Why? No intelligible criteria, but, “I know it when I see it.” Our SC’s approach in the Ajith D case suspiciously sounds similar. After all, once you say that all Orkutters/Facebookusers/Bloggers are responsible for their words, you are pretty much using an umbrella term to take in all, from any age. They have not set out any mitigating factors. This is actually quite flippant. They have set a precedent that is now law.
2. There is a moral question involved here. The Shiv Sena is hounding the kid, filing criminal charges and forcing him to go to the Supreme Court, when clearly, he himself has not said anything. In my blog post, I wrote of a higher standard of hurt for public figures. This should answer some of your questions with respect to my para. At least, it clarifies my views.
3. NO AND EMPHATICALLY NO to your second para. Yes the judiciary has done a good job in the past. Does that mean that, because of their past, we don’t have a right to criticize them? Our job as good citizens is to critically review the judiciary, legislature and executive. Yes, our judiciary is constitutionally charged but we have a fundamental duty to see to it that the judiciary remains on the rails. We cannot say: “Oh they have been so good, what’s one or two mistakes?” People’s liberties are at stake!
4. Last para: Look, the constitution allows for the judiciary’s discretion as regards Article 19(2). The judge has to decide whether the speech is free or not. Also, when a case is filed under the IPC, there are quite a few mitigating factors which will allow a person to be let off. My argument is that had the case gone to trial (which it will now do), the person Ajith would have been let off anyway. The grounds are flimsy at best based on hearsay, although here, I must profess some ignorance as to the actual nature of the chargesheet. But, if hearsay is correct, then the SC should not have allowed the case to go on. (In my blog post, I have briefly discussed the nature of the charges).

http://danielonearth.blogspot.com/ Daniel
whatever happens, I’m not gonna stop using my freedom of expression.
Yogi
We get no sense of the actual circumstances here. Who issued the death threat to whom? Presumably a commenter threatened another on a thread. So why is this commenter not held to account rather then the poor guy who started the group? Did the originator of the group have moderation rights? Is a sarpanch to be held accountable for the actions of a murderous villager merely because he lives in the same village? Yes, he may, if he actually exercised some control over the murderer. How can a blogger exercise control over his commenters? Do the honourable judges have any understanding of the codes of virtual interaction?
And it is ironic that the maximum amount of abusive language is often found on Hindutva/Sena-type threads themselves. The pink chaddi group seems to have been hacked and replaced by one Kishore Singh with “A Consortium of Pro-Abortion, Baby Killing Feminist Whores & Manginas”, a Bangalore based Hindutva blogger recently called a female commenter ‘someone who can’t use her brains because she can’t keep her legs closed’ or something similar etc. etc.

Yogi
To clarify, I meant to say ‘control over the murderer, his intent to murder and/the murder itself’. Which goes on to show that such situations are complex and need to be assessed with a nuanced understanding of the subtleties of cause, effect and responsibility. Which appears to be seriously lacking in this case.

http://hawkeyeview.blogspot.com hawkeye
Patrix,
There seems to be a fundamental conflict here. If you wrote the laws from scratch what would you ring-fence? Would you define “this is what a free person can do” and then say everything else is outside of ‘freedom of speech’ protection? Or would you define what falls outside ‘free speech’ rights and then say everything else is covered under ‘freedom of speech’?
It seems to me that people are struggling with what to ring-fence and what to throw out into the wild-west. A person’ s invidual freedom is bound to affect a third party at some point. Where do you draw the line is the question?
If you run an ammunition shop that allows anonymous people to purchase guns and shoot the public – should you be liable or not?

http://www.ipatrix.com Patrix
I wouldn’t define it either way. I prefer the United States First Amendment that prevents the government from exercising control over an individual’s right of expression. Promoting violence in form of direct and credible threat of physical harm to another individual might be cause for reprimand but you cannot convict any person for uncommitted crimes. Insulting a person especially a public figure IMO is not a crime especially if deliberate malice is not proven. The burden of proof should be on the plaintiff and not on the defendant, as it is now. Why don’t we seek to punish individuals who commit crimes and cite excuses that they were acting on words of another individual? Brings to mind that oft-used Indian adage – just because he asked you to jump in a well, would you?
Hindu Atheist
Hi Patrix/Dhananjaya Nene and others,
Can you post more information about how 295(A) can be applied to bloggers who post regarding religious matters? I am reposting some comments from my blog here for the sake of discussion:
Once the legal cases start then they may not be able to establish malicious intent when the case goes all the way through. But non-bailable arrest without warrant and being charged with a criminal offense is something I am not able to digest (tareek pe tareek!!) . All this if someone’s religious feelings or public sentiments are hurt!! It is all grey area.
Look at the previous cases filed under 295(A):
- Arrest of editors from Statesman for republshing an article from Independant
http://www.independent.co.uk/news/world/asia/editor-arrested-for-outraging-muslims-1607256.html
- Ravi Shastri for saying that he ate a beef dish even though he’s Hindu. (I don’t think he was arrested). But Bajrang Dal did file a case against him under 295(A).
(http://therationalfool.blogspot.com/2006/12/bulls-biltong.html )
- Getting arrested for publishing a santa banta jokes online?
(http://timesofindia.indiatimes.com/Cities/Mumbai/Sikhs_ask_cops_to_ban_Sardar_jokes_on_Net/articleshow/1776258.cms)
- Getting arrested and thrown in jail for 50 days for posting some images of Shivaji? (http://desicritics.org/2008/02/05/070202.php)
Bloggers need to be ready to react for such an event – resource wise (financially or time). With such laws in Indian Penal code, it looks like it is better to be wise than speak out. Freedom of speech is an illusion … especially when public religious sentiments are concerned.
Rather than discussion of what is right or what is wrong, I would like to know more about realities. I’m just trying to get more info regarding legal implications and possible consequences for bloggers.
Thanks for your response.

http://www.ipatrix.com Patrix
You have identified the frivolous cases that these so-called offended people file in order to suppress free speech. IMO 295(a) has been widely misused and fails to achieve any good as criteria for getting offended keep falling. So having a blanket restriction of offending religious sentiments is counterproductive as such cases are filed not by true representatives of the religion but by highly-sensitive attention-seekers who profess being offended at the slightest hint of criticism. Sadly, the State allows for such frivolities.

http://exquisitely-moi.livejournal.com Sherene
And then we wonder why our country’s political scene doesn’t attract young, articulate, well-educated people! Opinions and the expression of them can have such ramifications in the ‘world’s largest democracy’? Perhaps, we should call ourselves the world’s largest hypocrisy – oops, did I grate a few nerves there? Should I go hide under my bed now?
This entire case is mired in so many layers of political hooliganism that to discuss it as an objective matter of freedom of expression seems almost pointless.

http://www.ipatrix.com Patrix
You just may have violated Article 19 by invoking the public sentiments restriction by calling India the world’s largest hypocrisy. I may be sued to give up your IP address :)

Hindu Atheist
Patrix,
I guess you missed one more thing. You are responsible for Sherene’s comments since you own the blog. This is what happened with the orkut community. Other people posted comments (even anonymous) but SC is asking the owner to explain his behavior to court. This is a very important distinction.
-HA

http://www.ipatrix.com Patrix
I’m aware of that implication but I don’t think her comment is detrimental to India’s sovereignty and merely reflects her opinion on state of laws in India. If she believes they are hypocritical, the offended person will have to prove they are not. I find this discussion almost surreal. At this rate, no one will say anything in fear of offending anyone.

Hindu Atheist
Well, it may sound surreal to invoke article 19 for Sherene’s comments. But looking at the case of arrest of Stateman editors using 259(A), it is not surreal at all. It is real. Very real.
If you consider 259(A), you can never take an atheistic point of view publicly and question religious ideas for the danger of offending someone’s sentiments. Atleast if you are a indian citizen. It may sound improbable that someone may sue you for talking about it, but it is not impossible. According to the law it will be a legitimate concern.

Sherene
Feel free to screen my comment if you deem it necessary :)
For the record, I didn’t take any names, of countries or otherwise. What next, people’re going to be sued on the basis of metaphorical resemblances, allusions and epithets? I wouldn’t be surprised =/

Hindu Atheist
So basically, 295(A) could be used as a publicity or political tool to harass people? So if a blogger dares to open his mouth against any religious idea, then technically he can be immediately arrested without warrant. Frivolous or not. Having a criminal case registered against you on record – isn’t that a scary thought? Are there any implications for the person who filed the case if deliberate and malicious intent cannot be established in the court Or does he just walk out free?

http://www.ipatrix.com Patrix
Of course. Any religion that needs defending from mere so-called offensive words is no religion. Section 295(A) is the last refuge to legitimize intimidation and employed when typical forms of threats don’t work. And I’m not aware of any negative consequences of filing frivolous cases. It would help if the court made them pay at least legal expenses for the defendant if the case is thrown out.
http://anshumanblog.blogspot.com Anshuman
Let us be clear as to the mitigationg factors of Section 295-A:
1. Only a “cold, calcualted attempt” at maligning religion and intention of public hurt can hold one culpable under this section.
2. If an abnormal or a hypersensitive man/group makes the complaint, it will not be entertained. But if an ordinary man, exercising ordinary common sense feels hurt, then the complaint will be valid. [As held by the MP High Court in Ramlal Puri case, considered to be a good exposition of the law.]
3. The word ‘malicious’ as used in 295-A, the nature of the language must be seen, not the relation to the accused or of the subject’s personal feelings.
4. Finally, the SC had said earlier in the Ramji Lal case that only the aggravated form of speech will be punished, not any and every speech.
I have already mentioned in my blog about how public figures should be subject to a greater level of legal hurt.

http://www.ipatrix.com Patrix
Thanks for your input. The U.S. already sets a higher standard for ‘offense’ for public officials and any criticism of any public official is considered free speech serving the public interest and accountability standards.

http://anshumanblog.blogspot.com Anshuman
Hustler v. Falwell, I know. Trouble is, in India, the Indian Supreme Court explicitly overlooks references to the First Amendment. Reason being that in India, we also have a higher standard of public morality which may call for curbing free speech. Thus, attacking Ajith’s judgment on Article 19(1)(a) of the Constitution may not be a good idea. Even so, the SC should have dismissed the case on the facts itself.

http://www.ipatrix.com Patrix
Legislating public morality in itself is undesirable in a democracy simply because it inevitably caters to the lowest denominator of sensitivity and results in overreaching of state interference in individual freedom. The banner of responsibility is often bandied about for words but not for actions which often are excused under pretext of incitement. We’ve seen that it is quite easy to ‘incite’ people into undesirable actions especially if the people know that their actions will be excused simply by going after the person uttering mere words.

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