Thursday, 26 February 2009

Goodbye Freedom

This stinks. A kid from Kerala is being criminally charged with hurting public sentiment by a fascist political group, the Shiv Sena, for comments made by others on a forum he started that the group's members don't agree with. The Supreme Court, in all their apparent wisdom, has declared that all people in similar positions are liable to be sued for the same. Naturally, there are protests.

I'd have loved to comment on the SC's decision but they haven't published the logic behind how they reached the same. All we have is:

We cannot quash criminal proceedings. You are a computer student and you know how many people access internet portals. Hence, 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."

So now a 19 year old boy, who probably has exams to take, has to travel all the way to Thane, Mumbai to attend court to reply to an FIR registered under Sections 506 and 295A pertaining to hurting public sentiment by comments that he didn't even make. This brings up so many points:

1. Got a mint...sentiment?

The sections pertaining to hurting public sentiment - what's up with those?
I'm assuming the purpose of these sections is to protect the masses from having their feelings hurt. But is this really a sensible law? What exactly is public sentiment? And how does it get hurt? And who decides this?

What if I claim that someone has hurt my feelings and the feelings of my community or organisation simply because he has an opinion that differs from ours? Because that's hurting public sentiment, isn't it? Does that mean that I can file a criminal complaint against that person, just because I say it hurts public sentiment, and they have to respond or face arrest?

If so, then maybe it's time this section was scrapped, because what prevents a person or group from crying out in false pain and agony and going to court every time they come across someone with a different opinion? Imagine the possibilities! Everyone suing everyone else daily for libel or hurting public sentiments just because they hold a different opinion. I can sue the VHP and Bajrang Dal for hurting Christian sentiments with their demand that we stop believing that Christianity is the only means to salvation. The Indian Jewish community can file an FIR against the Indian government for their official response to Israeli attacks in Gaza (i.e. sympathising with the victims), claiming that sympathising with Palestinians hurts their sentiments.

Without a proper definition of what public sentiment is and how it gets hurt, we won't be able to identify what is offensive. And until we do that, I'm afraid we can only expect more such ridiculous cases to come forward.

2. I didn't say that!

Assuming 'hurting public sentiment' is really a crime, and the police or courts were able to define what public sentiment was, and the comments made were really offensive enough to warrant an FIR, they weren't made by
Ajith D, the boy in question, but by other people on a forum he started. Can he be held responsible for other people's opinions, even if they do hurt public sentiment? If so, won't that rule apply to all of us and our blogs and forums?

And what if we simply can't keep up with all the comments; offensive comments might be posted on our forums faster than we can moderate them. Can we get off the hook that way? Can Ajith do so? Or will he have to take responsibility anyway? I'm glad I've enabled comment moderation on my blog, but that's besides the point; we're talking about a forum here.

Even if he had no intention of moderating anything, can he be held responsible for simply creating something that others misused? How far does this responsibility fall? Can Ajith also be held responsible for a criminal action committed by a forum visitor who claims that something he read on the forum incited him to commit the crime?

3. Why can't we all just be rude?

Why can't I insult or make up fake stuff about any person or organisation or political party or community without fear? Isn't that what humour writers do to some extent? Well, I can't because that's what the constitution says:

In other words, the state can clamp down on my freedom of expression if it involves defamation, which might very well be valid in this case. That the law needs to be changed is another point.

Strangely, the law says nothing about clamping down on freedom of expression when it comes to hurting public sentiment (unless I've missed something), which is what Ajith has been charged with. Did the SS screw up here and leave a loophole for Ajith to escape through by charging him with the wrong crime? The forum comments in question involve defamation i.e the SS trying to divide the country, while Ajith has been charged with hurting public sentiment.

Throwing stones from a glass house

The group that filed the FIR is the Shiv Sena youth wing. Are you kidding me?
How many people are dead and how many crores worth of public property been destroyed because of the SS's actions? Their very existence is an affront to public sentiment. Ajith should counter sue on that charge.

In any case, I don't think Ajith is ever going to see the insides of a jail cell, in the same way that Raj Thackeray hasn't got convicted yet for hurting public sentiments. I don't think they'll ever be able to prove that by starting a forum that eventually contained derogatory comments against the SS, he was willingly plotting to hurt anyone's sentiments or defame anyone.



Sirensongs said...

Thanks for the link! Your writing looks extremely...sensible. That's a compliment. :-)

Quirky Indian said...

I have been shouting myself hoarse that the exceptions to the Right to Freedom are so vaguely worded, so all-encompassing, that just about anything can be restricted by the state.

So it's not actually "Goodbye Freedom"....that freedom left a long time ago. We just woke up now.

Quirky Indian

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