Introduction: Freedom of Expression in the Indian Blogosphere
The Indian blogosphere is abuzz with discussions on freedom of expression after the Supreme Court refused to throw out Shiv Sena's defamation case against 19 year old computer science student Ajith D (TOI).
However, the Indian blogosphere's reactions to the controversy are mostly based on reports on the incident in Indian media and the quality of this reporting has been very mediocre, with few details and little background information. As a result, bloggers are reacting to incomplete information. As a result, bloggers are reacting to incomplete information.
So, before I do a roundup of the Indian blogosphere's reactions to the story and share my own views, let me first present the basic facts.
Shiv Sena's Tradition of Violent Protests
Let's start with Shiv Sena itself. Shiv Sena is a far right political party in Maharashtra that built a strong base amongst the Marathi community in the sixties based on its militant ideology that Maharashtra belonged to the Marathi community and migrants from other Indian states should be thrown out. Starting from the mid-seventies, the Shiv Sena shifted its focus to a strong pro-Hindutva (and anti-Muslim) ideology, a shift that solidified in the mid nineties, when it became an integral part of right wing alliance led by the Bharatiya Janata Party.
The Shiv Sena has often been accused of being involved in coordinated political violence against against non-Marathis and non-Hindus. It is widely acknowledged that Shiv Sena leader Bal Thackery, who is revered amongst its supporters, has been instrumental in inciting such violence on many occasions. The Shiv Sena also has a long and well-documented history of violent protests against journalists, writers and artists who speak against its extremist ideologies (see BBC 1, BBC 2, BBC 3, BBC 4, NYT 1, NYT 2, NYT 3, NYT 4, Guardian 1, Guardian 2).
It's important that we look at Shiv Sena's ire against Orkut in the context of its long history of ideological intolerance and violent protests.
Shiv Sena's Unholy Nexus With Orkut
The story started in November 2006, when Shiv Sena activists stumbled across an anti-Shivaji community on Orkut. Shivaji is a 16th century Maratha warrior, who is revered by the Marathi community. Pune police asked cyber cafe owners to block the anti-Shivaji community after violence by Shiv Sena. A public interest litigation was also filed in Bombay High Court to ban Orkut for hosting the anti-Shivaji community (TOI 1, TOI 2, Rediff 1, Rediff 2, NDTV, Financial Express).
In January 2007, the Maharashtra government requested the Computer Emergency Response Team (CERT-In), a Delhi-based regulatory body under the Ministry of Information and Technology, to remove the offensive content. According to Indian law, the CERT is responsible for investigating requests to block websites from notified officers of the Union government or the state governments. If it finds the website objectionable, it communicate its decision to the licensing and regulations cell of the department of telecommunications for passing the order to the internet service providers to block the website (Indian Express, Live Mint).
The Shiv Sena also asked its supporters to flag these communities on Orkut, so that they could be banned (Orkut discussion thread 1, Orkut discussion thread 2). This resulted in a flagging war on Orkut, where users who were part of pro-Sena and anti-Sena communities flagged each other's communities. For a short while, many pro-Sena and anti-Sena communities were banned by Google, but many of them were quickly reinstated (Orkut discussion thread).
The Shiv Sena also sent letters to Google and internet service providers in India to block these communities and even met up with Google officials, along with Maharashtra government and Mumbai police officials.
In January 2007, Google decided to cooperate with the Mumbai police and instituted an informal arrangement called the Priority Reporting Tool which enabled Mumbai police to directly report objectionable content to Google and also ask it for details of IP addresses and service providers. Based on the recommendation of Mumbai Police, Google deleted communities against Shivaji, Bal Thackeray and dalit leader B R Ambedkar (TOI, IHT, Indian Express).
However, even as Google banned some communities that contained defamatory content, it initially refused to ban several other communities that were against Shiv Sena's leaders or ideologies. As a result, Abhijit Phanse, the president of Bharatiya Vidyarthi Sena, the student wing of Shiv Sena, took matters in his own hands and led a violent campaign against Orkut.
In May 2007, the Sena sent letters to internet cafes threatening attacks against their establishments, if they didn't stop their customers from accessing these Orkut communities. In June 2006, it followed up on its threats by ransacking several internet cafes in Mumbai and physically abusing cafe owners and customers. The Mumbai police also instructed internet cafe owners in Mumbai and Thane to prohibit their customers from accessing Orkut. As a result, cyber cafes in Mumbai registered a drop in traffic and were forced to put up notices asking their customers not to visit Orkut.
The Sena even announced that it was developing a special software that internet service providers could install to block any message containing certain words and phrases such as “I hate” or “I despise”.
These incidents were widely documented in Indian media (see Reuters 1, Rediff 1, Rediff 2, IBN Live, NDTV, Indian Express 1, Indian Express 2, Indian Express 3, Indian Express 4, Indian Express 5, Economic Times, Business Standard 1, Business Standard 2, TOI) and debated in the Indian blogosphere and Orkut community (The Hindu). It's especially worthwhile to see two opinion pieces by Amit Varma in LiveMint and Sevathi Ninan in The Hindu criticizing these trends.
The news stories don't give details about CERT's decision on banning Orkut, or the final settlement between Shiv Sena and Orkut, but several anti-Shiv Sena communities have been banned since then.
The Mumbai and Pune police have also put their arrangement with Google to good use since then.
In September/ October 2007, the Pune police arrested four Bangalore based software engineers — 25 year old Lakshmana Kailash, 23 year old Manjunath Betegowda, 23 year old Harish Shetty and 22 year old Kiran Reddy — for posting an obscene profile of Shivaji on Orkut, in which he was shown clad in female innerwear (Economic Times, TOI). It was later found that the arrest of Lakshmana Kailash, who was detained for 50 days, was based on wrong IP addresses provided by Bharti Airtel (TOI 1, TOI 2, TOI 3, The Hindu, Rediff). Lakshmana then sued Airtel, Maharashtra government and Mumbai police and demanded Rs 20 crore in damages (IBN Live, TOI). The status of his case isn't clear from the news reports.
In August 2008, the Mumbai Police arrested Ghaziabad based computer engineer Adarsh Sinha for posting death threats against Bal Thackeray using a fake email identity in the name of Faizab Farooqi. They also arrested Mumbai resident Suresh Shetty, a moderator of this community. (TOI)
Shiv Sena's Case Against Ajith D
Ajith D, a 19 year computer science student from Kerala, started a community called ‘I Hate Shiv Sena’ on Orkut. One of the anonymous commentators on the website posted a death threat to Bal Thackeray. It seems from news reports the Mumbai police has charged Ajith for both criminal intimidation and hurting religious sentiments.
Mumbai police tracked Ajith's Orkut and GMail accounts for a week to ascertain his address and sent a team to his hometown in Cherthala, in August 2008, to nab him. However, television channels flashed news of their arrival, helping Ajith to escape and the police team could only confiscate the hard disk of his computer. The team also said that they were observing the Orkut postings and Internet activities of around 50 other members of the community (Hindu).
Subsequently, Ajith got anticipatory bail from Kerala High Court and moved the Supreme Court through counsel Jogy Scaria seeking quashing of the criminal complaint based on the ground that he hadn't posted the death threat and the community itself wasn't defamatory. The Supreme Court bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam, however, refused to protect him and said: “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.” (TOI, The Guardian, The Hindu).
Roundup of Blog Discussions on the Ajith D Case
As I mentioned above, several bloggers have reacted strongly to the Supreme Court judgment, often based on partial information (CXOToday).
Lawyer Lawrence Liang at Kafila writes a detailed post on whether a defamation case should be settled under civil law or criminal law and delineates a history of defamation cases against Indian bloggers. He also makes a pertinent point in the Ajith D case –
When organizations like the Shiv Sena and the Sri Ram Sene start using defamation laws, it smacks of chutzpah to me. The definition of Chutzpah is a person who kills his parents, and then claims clemency on the grounds that he is an orphan. What other way can we describe the bizarre situation of the violence prone macho men, who suddenly run around screaming about the violation of their legal rights and the slurring of their reputation?
Patrix thinks that the Indian legal system is biased against freedom of speech –
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?
Marshall Kirkpatrick at RWW thinks that the Supreme Court judgement has repercussions for bloggers in all democratic societies –
It's a good idea for us as individual web users to remember that even as new internet technology sets so much information and so many voices free, even in a celebrated democracy – online freedom may be one repressive legal ruling away from being put at serious risk. No matter where you might live – do you trust that your local judiciary would understand the issues in a case like this? We don't.
Nikhil Moro from Civic & Citizen Journalism Interest Group thinks that freedom of expression lost a case in India –
Historically India's courts have accorded a high place for expression in the hierarchy of freedoms, but as Mr. Ajit's unfortunate affair shows, social media activists should expect the state to use a myriad of laws other than libel.
Sanjukta thinks that the Supreme Court decision is good for Indian blogging –
This would help clean up a lot of #@%$ that goes around the blogsphere, will help us become more responsible and mature writers thereby establishing credibility for bloggers’ opinion and most importantly it would kill the terrible habit of writing all kinds of indecent, uncivilized, abusive things anonymously in the comments thread. This would also compel the blog owner or community discussion board owner to keep the discussion clean and abuse free. It will enforce the dicipline of self regulation on bloggers, isn’t that a great thing to achieve.
2s at Mutiny warns against a simplistic discussion on freedom of expression –
The laws of the land must find better ways to control what is being written or said in a public forum than restricting and threatening bloggers with action. Bloggers in India must together call for what I think is a more mature approach and law towards dealing with public defamatory comments on the internet. Bloggers are, after all, not “public” figures like political leaders are and to judge both by the same yardstick might not necessarily be the best method. Besides, is this restricted to just blog posts? What about comments on these posts? What about tweets?
Pramit Singh believes that the SC judgment shouldn't scare bloggers in India –
Some might think the days of free-for-all Orkut groups are over. Others will say they are in fear of treading against people with might – the politicians, big business, virtually anyone with an army of lawyers, who, in this case are trying to put fear of appearing in courts for God knows how many times and thus choosing to ‘write wisely’.
However, I have faith in our Justice system. Bloggers are not going to face a million lawsuits in India.
Dhananjay Nene thinks that the Supreme Court's judgment isn't a conclusive blow to bloggers’ rights –
One important aspect which is perhaps easy to lose sight of in this debate is that the Supreme Court did not weigh in on the guilt or lack of it in this case, but on the fact that the person could not shy away from the responsibility to face the charges in a court.
Lawyer Praveen Dalal also says that we should not read too much in the Supreme Court's judgment –
With the Constitutional Protections on the side of Bloggers there must be very strong reasons to book a person for Defamation or disturbing Religious Harmony. The case is before the lower court that is also a fact finding authority. It is only after the lower court comes to a conclusion that we can proceed either to convict or acquit the accused Blogger. The Supreme Court of India did not found reasons to “Quash” the criminal proceeding against the accused and in the absence of the complete facts of the case as well as the copy of the judgment, it is very difficult to judge the correctness or incorrectness of the same. However, in all probability the accused would be either acquitted or released after admonition.
The SC only said that it cannot, suo moto, quash a criminal prosecution.
It did not say the case is well-founded — that is for the court to decide on the basis of existing law.
Conclusion: The Limits to Freedom of Expression in an Intolerant India
As for me, I see the Ajith D case as part of a larger trend, which operates at many levels.
At the very least, we should see this case as part of Mumbai and Pune police's crusade against inflammatory Orkut communities. Sixteen Orkut users have been arrested in the last two years on charges of criminal intimidation and hurting religious sentiments (Indian Express), and one of them spent 50 days in police custody based on a mistake in identifying an IP address! It's a serious crusade that will only become more intense in the foreseeable future and it raises several important questions.
To begin with, do we really want to defend a blogger, or a community owner, or a commentator, who has posted death threats against a common citizen or a public figure, or allowed these comments to be posted and then refused to remove them?
Going beyond that, should the Indian legal system apply the same standards for defamation for a common citizen and a public figure, especially a public figure as controversial as Bal Thackeray?
How can we allow a political party like Shiv Sena, which has set unprecedented standards in inflammatory religious speech (and violent action to back it up), to complain about blog posts or community comments hurting religious sentiments?
And, finally, given Google's willingness to short-circuit the Indian legal system and share Orkut and GMail personal data with Mumbai and Pune police, how comfortable should we feel in building our entire online presence on Google's services?
At another level, we should see this case as part of a trend, in India and in democratic countries internationally, where traditional institutions are fighting back against the internet and trying to limit its freedoms.
Barkha Dutt and NDTV threatening to sue blogger Chetan Kunte for defamation is a part of this trend. Shri Ram Sena beating up women in a Mangalore pub and then threatening to sue the organizers of the Pink Chaddi Campaign is a part of this trend. US senators refusing to believe that child predators aren't a big threat on the internet is part of this trend. US, UK, Australian and Indian governments introducing tough censorship and cyber crime laws are also a part of this trend.
All these actions, individually and collectively, curtail our personal and public freedoms and also our ability to fight for these freedoms. By threatening to sue a blogger NDTV has curtailed Indian media's ability to question violations of freedom of speech in India. Similarly, by closing down the internet in their own countries, US, UK, Australia and India have curtailed their ability to question violations of freedom of speech in Iran or China.
So, what happens in the case of Ajith D is important in itself, but it is also important as part of what's happening with the internet itself. It's critical that we force ourselves to open our eyes and see the bigger picture before it's too late.