OPINION

To Censor Or Not: Bloggers' Duties and Liabilities

February 27, 2009
Vinod Joseph

Recently a young blogger from Kerala named Ajith got into some serious trouble after having started an anti-Shiv Sena community on Orkut. Anonymous commentators posted nasty and vile comments on Ajith’s ‘I Hate Shiv Sena’ community website. The Shiv Sena’s youth wing filed a complaint with the Thane (a city on the outskirts of Mumbai) police station against Ajith following which charges were brought against Ajith under sections Sections 295A and 506 of the Indian Penal Code 1860.

Fearing arrest, the young blogger approach the Kerala High Court and obtained anticipatory bail. Later, Ajith approached the Supreme Court for an order quashing the criminal complaint filed against him. The Supreme Court ruled against Ajith and directed him to travel to Thane and face the charges filed against him.

My initial reaction on hearing of this was on the same lines as my friend Jo who has written an article on this issue here:

However, on reflection, I have come to conclusion that the Supreme Court of India was absolutely right in its ruling.

My reasons are as follows:

Section 295A of the IPC says as follows:“Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 506 of the IPC says as follows:“Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;If threat be to cause death or grievous hurt, etc.: -And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Though Sections 295A and 506 sound reasonable, they can be (and are) interpreted to cover a wide variety of sins. It is interesting to note that the Indian Penal code of 1860 was created by the British Parliament for its Jewel in the Crown which had mutinied in an unprecedented manner just three years ago (in 1857).

Over sixty years after independence, the IPC has not seen many amendments. As we all know very well, it is not the Supreme Court’s job to make the law. It only interprets the laws that are made by the representatives of the people in the legislature.

Let’s assume that Ajith were a journalist who writes a regular column in a newspaper. Also, let’s substitute the Shiv Sena for an individual Mr. X who is mild and meek and has difficulty melting cheese in his mouth. What would be your reaction if Ajith were to write an article in the newspaper saying that he hates Mr. X, who is the scum of the earth and should ideally be lynched. Would Mr. X have a cause of action against Ajith? You bet he would! Ajith would be liable for both criminal intimidation and defamation.

One of the fundamental principles of law is that every one is equal before the law. Though the intention behind such a principle is to ensure that the weak and the meek do not lose out to the strong and the dominant, the law cannot discriminate against the strong and the powerful either. This would mean that even a nasty piece of work such as the Shiv Sena should have equal protection of the law from criminal intimidation and defamation. If Ajith were to write a newspaper article against the Shiv Sena defaming it and criminally intimidating it, he would be liable under the IPC. The publisher of the newspaper would also be liable.

In this instant case, it was not Ajith who wrote those nasty comments, but some anonymous individual. However, Ajith is in the position of the publisher of a newspaper who is responsible for whatever is written in his newspaper. It is true that the internet is a free medium where everyone has the freedom to express himself or herself. However, there is no reason to take the view that rules regarding defamation or intimidation shouldn’t apply to the internet.

Bloggers and website owners should ensure that no one publish comments on their blogs or websites unless the blog-owner or website owner has approved the comment. Even DesiCritics should, in my opinion, follow this approach, rather than edit comments after they are made.

Finally, let me add this. It seems unbelievable that the Shiv Sena, a party that has specialised in intimidating and harassing minorities in Mumbai should file a complaint against a teenager in a faraway state merely on the basis of comments published on his Orkut community website. I’m sure that the Shiv Sena has not been intimidated by Ajith’s orkut community. It has surely been defamed, but one of the defences to a charge of defamation is that the alleged statement or writing that caused the defamation is ‘true’.

I’m sure that there will be hundreds of lawyers in Mumbai who are happy to defend Blogger Ajith (now a cause celebré). However, travel to Thane Ajith must, as directed by the Supreme Court of India, and answer those ridiculous charges.

Vinod Joseph is a professional who works long hours. When Vinod gets some free time, which is not very often, he likes to write. When he is not in the "write" frame of mind, he reads. Vinodís first novel Hitchhiker was published by Books for Change in December 2005. Vinod blogs at www.winnowed.blogspot.com. The usual "employer caveat" applies and Vinod's employer has nothing to do with Vinodís writings. All views expressed by Vinod are his personal views.
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#1
SD
February 27, 2009
09:35 PM

How does criticizing Shiv Sena amount to "hurting religious feeling"?? Isn't Shiv Sena a political party? People are not allowed to express their opinions about a political party in India?

#2
Ledzius
February 27, 2009
10:16 PM

India is a banana republic.

#3
Kerty
February 27, 2009
10:20 PM

Use of legal intimidation is quite common among political parties. But Congress eats the cake. I know of at least 3 instances in recent years when congress shut down what it viewed as defamation against Sonia, Rahul and Mahatma Gandhi. There was one website run by NRI that was sued and shut down for alleging a gang rape by Rahul Gandhi. Than NRIs who had taken out NYT ad against Sonia Gandhi's visit to UN were sued for millions of dollars and taken to court by congress to bankrupt them. Than one NRI had put a parody clip on youtube about him dancing on a stripper pole impersonating as Mahatma Gandhi - he was threatened and shut down by Congess. When it comes to political parties, they are thick-skinned but lack thick skin when dealing with criticism.

#4
Vinod Joseph
February 28, 2009
02:32 AM

SD #1, the Supreme court did not say that the charges against Ajith are true. It only said that Ajith has to answer those charges. Ajith cannot take the stand that criminal laws and laws regarding defamation do not per se apply to him or to comments posted on a webpage controlled by him.

#5
Lexiss
March 3, 2009
06:06 AM


I believe opinions published on blogs should get immunity against litigation. The blogosphere will die out if such litigation against bloggers continues.

News and other material should not get the same immunity.

#6
Slime_id
March 3, 2009
06:24 AM

Feminists here in this DC threatened to file a suit if a phone conversation was not true.
Read The Pink Chaddi Blog concerning Anon.

So India is just a mirror. You can't have two laws, one for DC Feminists and Feminist arch rivals, Hindu Taliban.

#7
Vinod Joseph
March 3, 2009
07:32 AM

Lexiss #5, pray tell me, why should the internet have privileges which the print media doesn't have? How would you like it if a blogger wrote calumny about you on DesiCritics? Shouldn't you have the write to sue for defamation the person responsible for such smear?

#8
Ledzius
March 3, 2009
07:59 AM

First of all, to set the matter straight, creating a community on Orkut where people post messages is not the same as blogging. I don't think the guy who created the community is responsible as much as those who posted the offensive comments. The Shiv Sena is barking up the wrong tree here.

Also if you are a controversial politician and are in the public eye, you will be subject to smear campaigns by people who don't agree with you, whether you like it or not. If you cannot stand the heat, then better stay out of the kitchen.

And hate communities on Orkut or elsewhere are dime a dozen and are not meant for mass consumption. It is pretty juvenile of the Shiv Sena to take them seriously and to hound those members. There is a huge difference between something appearing in the Times of India and something created on Orkut. You just cannot equate the two.

Two years ago, we had another case of some guy wrongly arrested on charges of vilifying Shivaji, again on Orkut. He had to spend a couple of months in jail for no fault of his. I had blogged on dc regarding this.

At that time, he was not charged with a civil suit of defamation, but "hurting religious sentiments", which turns out to be a criminal offense. It was a travesty of justice.









#9
Vinod Joseph
March 3, 2009
08:37 AM

Defamation is not restricted to the mass media. If I were to have a private conversation with a friend and during the conversation I say that 'Ledzius is a cheat', it is defamation (slander rather than libel). Ledzius will be able to sue and claim compensation from me if he can prove in court that such conversation took and that as a result of such conversation, he suffered a loss - may be his friends started to cut him off or an employer fired him. I will be able to get away with my slander if I can prove that what I said is true, that is, I prove in court that Ledzius is indeed a cheat. In other words, 'truth' is a defence to defamation. I have the right to defame Ledzius, provided I speak the truth. There is absolutely no reason why the internet should be outside laws regarding defamation, not to say penal laws which forbid people from hurting the religious sentiments of others or criminal intimidation.

If I were to send an sms to a friend saying, 'Death to Ledzius' and the sms were to be circulated around, Ledzius can file a criminal complaint against me saying I have indulged in criminal intimidation. The police will investigate and decide if there was criminal intimidation. It is irrelevant that the sms is a private communication. Most acts of criminal intimidation (when a mafia goon makes a phone call saying 'pay up or else'
are private conversations)

All that the Supreme Court said is that Ajith cannot refuse to answer the charge framed against him by the Thane Police by saying an orkut community is outside the realm of the Indian Penal Code. The Supreme Court did not say that the charges are true or that wee little Shiv Sena has been criminally intimidated or defamed.

#10
Ledzius
March 3, 2009
08:54 AM

Just checked on Orkut - there are 10 "hate Shiv Sena" communities listed still. Out of curiousity, I also found 34 "I hate Amitabh Bachchan", 76 "I hate Aishwarya Rai" and some 128 "I hate Dhoni" communities, to just give some examples. And these don't even count the communities on Yahoo or Facebook.

Now are you telling me that if these celebrities start filing libel suits against all the people involved, the Supreme court is going to take a sympathetic view of those celebrities and ask the thousandds of defendants to appear in the regional courts to answer those charges? It should be insane to think of doing something like that.

Given that there is a huge backlog of genuine cases in the Indian court system, picking on just one person for starting an obscure "I hate so-and-so" community when there are thousands of them targeting virtually every celebrity around makes no sense.





#11
Ledzius
March 3, 2009
09:25 AM

I can understand if there is criminal intimidation, but I don't think defamation of a political party is a valid premise for a case. Should I get dragged to court for making a public statement like "Congress sucks"?

If the TOI has an edit where it opines that voting for the BJP is not good for the country (and thereby hurts its chances in the general election), can the TOI get dragged to court over this by the BJP?

The problem is these are matters of opinion. There is no way the TOI can "prove" the veracity of its editorial. But that's how the system of free speech works. If everyone starts holding up a knife against anyone who tries to criticize them in the form of lawsuits, you can then kiss goodbye to any form of free speech.

Today it is the guy on Orkut. If you don't stand up for him now, tomorrow it could be the editors of your favourite newspaper. And you could kiss your freedom of speech goodbye then.



#12
Vinod Joseph
March 3, 2009
10:08 AM

Anyone can file a suit or criminal complaint against anyone else. The civil suit or criminal complaint may be justified or it may be baseless. The only person who can decide on that is the judge(s) who hears the complaint or suit. Some suits may be dismissed out of hand if it sounds too silly or frivolous. A criminal complaint filed by a public prosecutor is rarely dismissed without a hearing. In most cases, summons will be issued to the defendant or respondents to appear in court and respond to the charges. If the defendant /respondent proves that the suit was frivolous or baseless, s/he is entitled to claim 'costs.' In reality, the costs awarded are rarely equivalent to the actual cost incurred by the defendant in proving the charges to be false. To use Ajith as an example, I believe the charges against him are frivolous. But he must travel to Mmbai/Thane and answer those charges. He will incur a great deal of expenditure in doing so. He is very unlikely to be compensated in full for his hardship/costs, even if the charges against him are dismissed.

Thus it is quite possible for a rich person to sue a poor individual and force him/her to compromise or backtrack. It is a fact of life. In the UK, it is not so easy to sue a person (relatively). A defendant who is sued usually can force the plaintiff at the inception of the trial to provide security for the defendant's costs that may become payable if the defendant were to win and the court awards costs. Also, British courts usually award costs that are very close to the actual amount spent in defending the suit. This is not the case in India or even the USA where courts rarely award full costs. Hence you find a lot more litigation in the US and India. In the US, it is also possible to hire lawyers on a no-win, no-fee basis, which makes it a lot more easy to sue. Such arrangements are illegal in India. In the UK, such arrangements are possible only in very restricted circumstances. Let me stop before I digress further.

At the end of the day, only a judge can rule if a charge is frivolous or valid. So, theoretically, it is possible for Amitabh Bachchan or Aishwarya Rai to drag a person to court for saying 'I hate Bachchan or Rai' on orkut. It is another matter that such a suit will be baseless and can be defended against easily, just as a half-decent lawyer can easily defend Ajith against the charges framed against him. However, travel to Thane Ajith must, to answer those charges.

A statement that you hate Bachchan is not defamation. It is an opinion. If you say you hate Bachchan because he is a bad actor is also an opinion. There is no defamation involved. However, if you say, you hate Bachchan because he is a crook or a liar, it can amount to defamation.

#13
Slime_id
March 3, 2009
02:05 PM

Vinod,

Two laws are different which are grossly misused.
a) 498A
b) DV, created not by British but by Madamme in year 2007. It is quasi-criminal, civil built.

You don't need even any evidence to arrest under 498A and in DV you are assumed guilty without even a FIR lodged and none can save you unless you have evidence.

In my one and half years of understanding these laws, I have understood that justice is meant to be denied to the needy and justice is meant to be miused for the innocent. That sums how I see.

Ajith knowing Shiv Sena will not only expend all his youth fighting the system but endup a bigger shark than what shiv Sena wanted him to be. Thats my prediction in 2-3 years.

Cheez.

#14
Sumanth
March 4, 2009
02:12 AM

"Also, let's substitute the Shiv Sena for an individual Mr. X who is mild and meek and has difficulty melting cheese in his mouth."

No. You can NOT do such a substitution so far as the defamation law section 500 of IPC is concerned.

Political parties, NGOs, Media etc are not considered as individuals.

If you say, person X is dividing country on the basis of religion, then the person X can sue you.

However, the same can not be extended for a political party.

Ajith is mostly likely going to win this case.

If he had made the statement using a loud speaker, even then he would have won the case.

=======
In short, Bloggers are small fishes. The political parties, the NGOs and Media are big fishes.
=======

#15
Sumanth
March 4, 2009
02:30 AM

Vinod,

At current pace, it will take 350 years to clean up the pending cases in various courts.

This case of Ajith will take at least 5 years to complete. If he wants to go abroad to study, the court may not allow him to go.

If he wins after 5 years in lower court. Then Shiv Sena goes to High court or Supreme court to appeal and drags for another 3 years, and finally Ajith wins.

Now, will the Indian State or Courts or Shiv Sena pay couple of crores to Ajith for the loss of opportunity and his peace of mind?

May be you or the judges say, he can file a case on Shiv Sena for recovering the costs of false litigation, then it will take another 8 years to settle.

By that time, Ajith will lose 16 years of life and may be two or 3 million rupees running around courts.

===============
India is a Banana Republic.
The Judiciary is Dysfunctional.
===============

All Laws are subject to interpretations. The Interpretations can change.


#16
Ledzius
March 4, 2009
02:38 AM

The guy was arrested 2 years ago because he had a caricature of Chatrapathi Shivaji wearing a bra on an Orkut community page.

Tell me then, is it considered defamation or an opinion?

An FIR has been filed against Reunka Chowdhury for her remarks that the January 24 pub attack by Sri Ram Sene activists amounted to "Talibanisation of the city", denigrated Mangalore and its people.

Tell me, is this considered defamation or an opinion?

As you can see, it is a very grey area. Unless a living person is affected, the courts should throw out these kinds of cases as frivolous without needing the defendant to appear for a hearing.

Otherwise these would turn out to be just a tool for harassment and intimidation.

#17
Slime_id
March 4, 2009
06:44 AM

Above the Indian Constitution, there is Dharma. I as the child of God see only Dharma which is above religion or even above law and even above International court at Hague.

This is Kaliyug (take away Hinduism) which means as a child of God should know in my lifetime I will get justice or in other words, people who being children of God mete out insincerity and hence do injustice to the children of God will get the same treatment.

This is the same principle of the mirror to all those who do aDharma. Times are the same and the mannerisms are the same since other yugas where wars stopped at sunset.

a) Look at 498A. Who created this monstrous law? Rajeev Gandhi and the Kaliyug ensured that the most secured man in India was dealt a death even his mother's assasination was a dwarf.

b) Why did Renuka CXhowdhury get the defamation case, all these years she has been defaming men and women. She needs a mirror. I betcha if she loses her constituency, I will ensure she will fight atleast one case all her life. This is not a threat but the parctical Kaliyug law. Some call it laws of Nature or Jungle Law and who said Man was not an animal in this vast Jungle.

c) Shiv Sena will also get a defmation case next valentine.

A Men

#18
Sumanth
March 4, 2009
01:24 PM

Yes. Dharma is above laws and constitution.

Look at Pakistan and think where it is today following the path of destruction. Whatever it did in Punjab, Kashmir for decades is coming back at itself and its people many times multiplied.

Renuka Choudhury will get what she deserves.

The people who are misguiding the nation with lies and western propaganda will also get what they deserve.

US will get what it deserves, for its activities around the world.

The Indian judiciary will also get what it deserves for denying justice for millions of people.

God knows the truth, but waits.

#19
SFF_India
URL
March 5, 2009
02:47 AM

There are 3 pillars on which the country runs:

1. Legislature
2. Executive
3. Judiciary

First stage of corruption happens at "Executive" level.Second stage at "Legislature" Level and the third stage at "Judiciary" Level.

The downfall of the nation happens when they reach the third stage of corruption, hence, all nations try to extend maximum protection to judiciary. But, the moment the judiciary get corrupt, with the protect it has, can create havoc in the country.

India tried to do the same, by creating a structure that protects Judiciary.

We have reached the third level of corruption. Judiciary has become morally and ideologically corrupt. The downfall of the country has begun and only God can save it now.

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