Saturday, 7 March 2009

Bloggers’ Duties and Liabilities – Implications of the Supreme Court’s Ruling in the Matter of Ajith

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 that the Supreme Court had got it all wrong, that the ruling was a blow to the exception freedom of expression one gets on the internet. 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.

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.

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