Monday, February 23, 2009

Criminal case against Orkut activist frays freedom of expression in India

Today freedom of expression lost a case in India.

D. Ajit, 19, found out what "reasonable restrictions" in a liberal democracy can mean.

Mr. Ajit, a student from Kerala, had initiated an Orkut community critical of the Shiv Sena, a Mumbai-based extremist party unapologetic about its "moral policing."

In August of 2008 Thane police, acting upon a complaint by a Shiv Sena official, slapped him with a criminal case.

The case against Mr. Ajit was not for libel, even though Indian law recognizes criminal libel (Section 499 of the Indian Penal Code) in addition to civil. Curiously, the case was for "criminal intimidation" (Section 506) and for "outraging religious feelings" (295A).

Mr. Ajit asked the Supreme Court of India to throw out the criminal case under constitutional Article 19 which guarantees a freedom of expression.

Today the court declined to do so. The Hindu reports:
A Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam took a serious view of the issue saying that the student of Information Technology should have realised what he was doing.

"You should not have indulged in such activity. You are a student of IT. You are doing something on internet and you should know about it," the Bench said refusing the plea of his lawyer that there was any malafide intention in putting the contents on the internet.
The case tested the balance between expressive freedom and other freedoms, particularly in a context of social media activism.

Who won? It's not clear.

What is clear is that the freedom of expression lost, even though India's constitution (pdf 1.09 mb) guarantees six fundamental rights and an expressive freedom which is subject to "reasonable restrictions."

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.

Another thought: At issue in any future civil demand from the Shiv Sena would be whether political party members are public officials. In 1994 the Supreme Court of India had held that public libel plaintiffs cannot get damages while performing official duties unless they proved the defendant's “reckless disregard for the truth.” (The court did not, significantly, use the terms "malice" or "actual malice" from the American tradition).


Chirag Chamoli said...

Nikhil, does this mean, whatever we may write or comment can be used to prosecute us and we are held libel for?

hitch writer said...

Does that mean if i am angry about some political leader or his party and want to write something that discloses my feelings for them or their actions I can be prosecuted ?????

this is shocking !!

Monika said...

this is disgusting and unacceptable... i thought we lived in a democracy and right to speech is a fundamental right

Gopinath Mavinkurve said...

It is time bloggers need to get themselves some basic education on what constitutes libel/ slander/ defamation and how to avoid these charges by debating on issues in the broader sense. This is not the time to get emotoinal or angry, Indian bloggers need to get together and empanel some legal experts on this subject to guide us in these matters and to represent whenever such a case is registered against us. It is an opportunity to get united, organised and disciplined all at the same time!

Indian Home Maker said...

I agree with Mr Gopinath here. And also as of now from what I understand, the Supreme Court has only said that Ajith will have to face the case.

Indyeah said...

yes, I agree with Gopinath first thought is ,what are our boundaries?We need to be clear on that first.

And then we can see as to how can we can air our opinions while steering clear of the slander/defamation/libel grounds at the same time...

Once the boundaries are defined,there should be no confusion.

Mavin said...

Well this is a criminal case and consequences more serious.

Public Order is one entry under Article 19 - Cl (2) which may be used by the court to decide.

What is more important is the language used, context and whether there is a call for action or not. This may be construed as a case of incitement.

If one were to say "We must condemn this action" - this has a different connotation than if one were to say "Mr.XYZ is a threat to national unity and we must unite to finish this person".

A reading of the offending material will give a better sense.

Hopefully, parliamentary language shall be used more often hereafter.
The Supreme Court may have taken all these factors into account. This also ends the myth of Internet being free. As stakes get higher, we can expect tighter policing

Chirag said...

I don't know what the fuss is about. If you don't understand libel/slander then don't publish. Just because you have a blog doesn't empower you to say anything that comes to your head. And the same applies to your commenters.

The analogy with a newspaper is apt. Will a newspaper publish a slanderous or libelous statement in the guise of a letter?

Anshuman said...

Please also read my blog entry:

And it is very hard to prove this as libel. Even if the SC has allowed the prosecution to continue, by all rights, Ajith D should win this case. Intent to harm, or mens rea, has to be proved in criminal law. There is no such proof.

Kapil said...

I am agree with the monika's view, if there is no space of expressing our view against wrongs, then what is the meaning of Democracy?

I am.... said...

I had posted on my blog my personal experience of being abused and used by a pathological liar and a psychopathic internet stalker. All of it facts. My intention of putting up that post was to warn women in particular, and the public at large, about the extent of abuse, manipulation and cheating that this guy was capable of inflicting, should they be unfortunate enough to be taken in by his charm and lies. Then came the comments from his ex-wife and several other women who had borne the brunt of terrible emotional rape, physical abuse and financial cheating at the hands of this man. Not only that, his ex-colleagues and friends from school also commented on his thieving, scamming and cheating. It so happened that during this time when my posts was up, the Supreme Court came up with ruling about internet blogging. I was threatened by this man’s father that if I did not withdraw the post, they would sue me for charges ranging from libel to defamation to financial loss as result of this defamation to abetment to suicide! Can someone charge me with libel when everything written on that blog is the TRUTH and can be corroborated with documentary evidence and actual witnesses? Can the charge of defamation be levelled when this man has committed all these terrible acts and everyone who has commented on the blog is ready to stand in court of law and testify? And pray why would I be seen as an abettor if this person commits suicide? Under which clause does my writing the post fall into?

I. security of the State,
II. friendly relations with foreign States,
III. public order,
IV. decency and morality,
V. contempt of court,
VI. defamation,
VII. incitement to an offence, and
VIII. sovereignty and integrity of India.

As far as I can see, none of these apply. If there is a legal expert on cyber laws here, please help. I am fighting a lone battle and I want that post to be up again, because I believe no woman should be denied the right to know about this offender and his modus operandi and not have the opportunity to protect themselves against being victimised by this man. I do not wish any woman to go through what I have gone through in the one and a half years that I lived with this man, not knowing anything about what he is all about. Is that a crime??

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christy said...

I am confused. He is still prosecuted for criminal defamation right? Please i really need this answered.