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.The case tested the balance between expressive freedom and other freedoms, particularly in a context of social media activism.
"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.
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).
