Three Times Indian Courts Failed to Understand How Internet Works
Do you dislike eating pumpkin? It may surprise you to know that exercising this dietary option in some places can lead to a criminal prosecution. In 2015, during a seminar organised by the International Committee for Jurists, a participant played a YouTube clip of a Sharia judge in Pakistan prescribing hate speech sanctions on people who didn’t like the fruit.
According to the judge, since the Holy Quran informs us that the Prophet was fond of eating pumpkin, it is blasphemy to state otherwise. This is blasphemy under sections of the Pakistan Penal Code. On conviction, punishable by death.
Though Lahore is only about 400 km from Delhi, Pakistan still seems distant from India. Any comparison of State responses to freedom of speech in the two countries invites ridicule and objections of fear mongering. But the internet is making this distance shorter. It only takes an instant for the same picture, song and video to be shared across borders. Frequently called unregulated, it is causing friction between social practice and laws.
Kamlesh Vaswani’s Crusade Against Cyberporn
Over time, the Delhi gang rape protests in 2012 will be remembered as the precise moment when gender discrimination and violence became mainstream issues in India. Indian families to a degree could talk about rape, sexual harassment and unequal gender roles around dinner tables. Prompted by the gang rape and murder of Jyoti Singh, a young physiotherapy intern, it brought thousands of protesters carrying placards to India Gate.
Justice Altamas Kabir, the then Chief Justice of India, made a rare public statement on 21 January 2013 terming these protests as “fully justified” and “absolutely necessary”. In the coming months, this debate did not settle as India confronted its long history of discrimination and violence against women. By the end of April, Vaswani interjected.
The Supreme Court (SC) seems to have been blown away by his submissions for it agreed to consider the merits of his case. As a court burdened with arrears, the SC is picky about the cases it chooses to hear.
Experienced lawyers offer odds of roughly two in ten for cases to proceed beyond preliminary hearings. Vaswani’s gamble must have been based on exceptional advocacy and luck for he succeeded by citing only one authority – a sole Wikipedia entry on which the entire premise of the case is based, i.e. porn viewing leads to sexual violence.
Keeping moral objections to such a regressive, unscientific attitude aside – this is vastly different to what the law is right now. As per Section 292 of the Indian Penal Code (IPC), only producing and distributing obscene content is illegal. Its long arm does not extend to private consumption. Here, it is relevant to consider that a change in this law will not be restricted to pornography but will extend to a wider category termed as “obscenity”. So if Vaswani gets his way, not just author EL James, but every person who has read 50 Shades of Grey will end up in prison.
But Vaswani’s problem is not only porn or obscenity, it is the internet itself. He says this with certainty, sprouting the fairly exact figure in his petition, saying every second 28,258 people are watching porn online. For him these 28,258 people are potential rapists. Such assumptions come easy to him for women cannot watch porn as it would be an “insult to their dignity”.
Such moral assumptions without a firm anchorage in law are sailing through in the SC. For instance, a significant hearing of this case happened on 8 July 2015 where the Chief Justice orally indicated to the government, “You have not blocked the websites? The petitioner is saying so much,” to which their lawyer said, “We will do whatever is possible”. By these passing observations, Vaswani became the porn czar of India, as he made a list of 857 porn websites that needed to be blocked.
Without any due diligence or check, the government issued a blocking order. Even though the SC gave no formal directions, the pending case itself was putting pressure on the government to act, or at least give a sense of movement to the court. This is not without reason.
But this ban was not to last. Indians like their porn and an immediate public backlash made the government reverse it within two days. In the meantime, the case continues to be pending in court. Chances are this outrage will be forgotten till more websites are blocked. Indications for this already emerge from the SC permitting an organisation called the SC Women Lawyer’s Association to implead and become a party in this case. The association claims, “Pornography corrupts the mind of the young generation today, who tend to commit crime against women”.
On the last hearing in February, the SC seems to have shifted focus to child pornography and asked all these parties to submit their suggestions to the government on how to implement the ban.
Sabu Mathew Wants To Save The Girl Child
A case, which pre-dates Vaswani’s crusade against pornography, is the petition of gender rights activist Sabu Mathew George. According to his petition, search engines are permitting people to order sex determination kits online, leading to female infanticide. His case is pegged on a law that is broadly framed and prevents the display of any form of information relating to sex selection. But the law Sabu Mathew relies on is superseded by a later, more specific one releasing online search engines from the responsibility of the results displayed on them.
This later law that gives online platforms a form of legal immunity is a legacy of the Avnish Bajaj case. Named after the CEO of Baazee.com, an Indian clone of eBay that was later acquired by it, the case hit headlines in 2004. It arose from a grainy video clip of students in a Delhi school, during which one is receiving felatio. A CD containing this clip was listed for sale by a user named “Alice Electronics” on the Baazee.com platform.
With relentless media interest building a moral outrage, the Delhi Police first questioned Bajaj and then arrested him. Though he got bail in a few weeks, it took close to 10 years for the case against him to be finally quashed by the SC. During this time, the legislature amended the law, plugged in the gaps and made an existing immunity provision for online platforms stronger.
Under this law, platforms that would include search engines are not expected to monitor, filter or censor content posted by their users proactively. They only act when a judicial or government order is passed on a specific website. It now seems the SC may well quash this immunity as well.
The overhaul of the intermediary liability law or preventing female infanticide is only a part of Sabu Mathew’s case. The orders of the SC suggest an interest in regulating online platforms that form a majority of personal internet communication. In several hearings it has tried to come up with technical means to prevent the display of certain websites through automated processes for censorship, without realising that individual, specific judicial determinations on what content is illegal cannot be replaced by lines of code.
It has asked search engines to play a much more active role asking them to give a list of such search results – practically printouts of the internet.
Not satisfied, it has then asked whether there exists a “device” that can block anything that violates Indian law without the court determining the illegality itself. Before this expurgator could be located, the SC on the next date of hearing suggested the adoption of a keyword filter. It was reasoned by the court that such a filter could block off terms such as “boy or girl” that are used as search strings to procure sex determination kits.
In all likelihood, such a filter would block large swathes of the internet. For instance, it would block access to the orders of the SC that also contain these phrases. This line of thinking also ignores the fact that internet users rely on search engines as dictionaries to define, explain and illustrate concepts and words to them. A ban will make them lose meaning over time when they are no longer recognised by search engines. But the petitioner and the SC seem determined. As Orwell wrote in 1984, “It’s a beautiful thing, the destruction of words.”
Harvinder Chowdhary Feels Insulted By Santa-Banta Jokes
It’s not only words that are being destroyed; it’s also our sense of humour.
One of the ways India has negotiated a national identity between a high diversity of class, caste and religion is by creating stereotypes for them. Such labels are often expressed socially as jokes. Sometimes, just to mock a person.
One popular variant, specific to Sikhs, is the Santa-Banta jokes. They take the form of a conversation between two Sikh men whose ignorance and naivete is aimed at evoking laughter. Most of these jokes are tasteless, lowbrow humour. But such a value judgment is a matter of taste. Ultimately a personal, subjective assessment. What is certain is that the very format of such jokes does not make them illegal. Holding otherwise would be stretching the law beyond elasticity. Unmindful of this, in six hearings over past nine months, the SC has begun to draw out the law on Santa-Banta jokes.
Late last year, Harvinder Chowdhary, a member of the Sikh community, approached the court to “issue a writ of mandamus to the respondents to ban websites spreading jokes on Sikhs projecting them as persons of low intellect, stupid and foolish, etc”. As per press reports, Chowdhary claims there exists about 5,000 websites that are dedicated to Santa-Banta jokes that should be immediately banned.
Such a wide-ranging prayer should itself invite ridicule. One wonders if the death of humour in India will be accompanied by a sense of irony. But what is surprising is that till now, there seems to have been an absence of any substantial discussion of applicable law. After all, this is a court case. It would ordinarily be expected of Chowdhary to show a legal breach committed by any of these 5,000 websites or the specific jokes contained on them.
Prior to banning a specific piece of content, at the very least a prima-facie determination is required. Without it, a ban would be an arbitrary exercise of judicial power. It would conflict with our fundamental right to freedom of speech and expression. Such a determination has been absent till date.
At this point, it is relevant to consider hate speech provisions, as they exist under the IPC. These provisions are possibly the only way Chowdhary can be successful in making her claims.
For instance, they can in no way prevent the format of a Santa-Banta joke itself. By doing so, the law recognises the difference between hate speech and personal distaste. Even Jeremy Waldron’s influential defence of hate speech legislation, “The harm in hate speech,” cautions that “legislators do have to be vigilant that those who demand solicitude for their dignity and for their group reputation do not also succeed in securing protection against offence”.
Hate speech laws aim to prevent the advocacy of hate against different communities, races and religions in our country. Due to their broad framing and frequent abuse they have faced criticism for some time. Even then, due to the precedent of the SC, which has narrowed their scope, they can apply only in a restricted set of circumstances.
But the SC seems to be entertaining this petition without focussing on determining what legal breaches may be committed by these Santa-Banta joke websites. This has opened the door for more petitioners to claim offence. The powerful Sikh body, the Shiromani Gurdwara Parbandhak Committee, amongst others, have filed independent petitions claiming the same relief. According to reports, in the last hearing, the bench had commented that there can be State-controlled guidelines but courts should not interfere in the matter. But it is yet to pass a final order.
Anarchy Or The Open Internet?
First legislated by a colonial government, the penal code is a common inheritance between India and Pakistan. Few realise that the criminal provisions for hate speech were substantially the same in both countries for close to three decades after independence. Many still remain the same, but many more were added during General Zia-ul-Haq’s rule in the 1970s.
These changes resulted in various provisions on blasphemy being inserted that are widely used today to shut down free expression. Even in the absence of legal prosecution, a chilling effect exists. People tend to keep quiet when they know the law is vague and can be invoked for anything even remotely controversial. Stringent legal censorship also, with the passage of time, promotes intolerance to a scale where it is not only imposed by court decrees but physical violence.
It is only with a sense of extreme regret that one can sense a similar unbalanced view of criminal law being fanned in all three cases. Consider, if the SC grants the reliefs in these cases.
It would make the offence of obscenity apply to readers and viewers, the use of phrases such as “sex determination” or “boy or girl” punishable and forwarding a Santa-Banta joke would amount to hate speech. Such measures may start with internet filters and censorship, but will lead to criminal prosecutions and ultimately physical violence. Such trends can already be noticed.
The Petition’s Committee of the Rajya Sabha cited the Vaswani case in its August 2015 report, stating, “The harmful and destructive exposure to cyberporn is a serious threat to the country’s social and economic fabric”. A few months ago, the State Legislature of Punjab inserted Section 295AA in the IPC that provides for life imprisonment for sacrilege of the Guru Granth Sahib.
This provision is similar to Section 295B of the Pakistan Penal Code that would make you swallow a piece of pumpkin pie even without chewing. What is more worrying is that judicial posture is matching pace with legislative action. Far from being a check by protecting civil rights under the Constitution, the court is inadvertently undermining them.
On most days this may be correct. But how much is a communication medium to blame and what can be done to correct it? Can such social issues be solved by court judgements alone? The problem seems to be the lack of a serious engagement with these questions – on each issue, distinctly.
Right now, attempts at nuance are absent in favour of macro prescriptions. Hence, the court has not expressed interest in giving a specific finding on the merits of the petitions and is rather exploring technical means to censor web content. Such technical means result in overboard censorship of legal content that cannot be tolerated in a constitutional democracy that guarantees free speech protections.
No technical filter can automatically sift through the terabytes of content to determine legality. This is the job of a court. Sadly, the sheer amount of data is making it avoid such specific determinations moving towards a system of censorship, remarked during an infamous hearing in the High Court of Delhi, “like China”.
It is to be stressed that the SC is not regressive in its appreciation of the internet, but it is terribly inconsistent. This point is being repeatedly stressed by many scholars, including Gautam Bhatia.
It is not as if the court fails to recognise these limits. In all these cases, at certain points of time, it has expressed its inability to grant such wide-ranging prayers but rather than dismissing them, a sense of compromise has kept them pending. The court performs well when it limits itself to legal determinations that are its core function. That is, when it checks whether the law made by the legislature is within constitutional limits.
This is evident from its landmark judgment in Shreya Singhal vs Union of India when it struck down Section 66A as being unconstitutional. In the same case, it also clarified that online platforms cannot censor acting on complaints by users, as this is a judicial function. This wonderful judgement seems to be in danger today.
To conclude, what is needed today are robust policy-making institutions of the government where a diverse range of stakeholders can debate these choices. To its fault, the government has not fully utilised the incredible competence that exists in the sector by setting up expert committees to deliberate on issues of internet regulation.
Many parts of the power establishment still see the internet as a horse that needs to be broken and girded. For instance there has been no fresh consultation on the draft encryption rules after they were withdrawn following massive public outrage. But we cannot walk away from these conversations; no matter how difficult they may be. Their very complexity makes them best suited for legislative debate rather than arguments in a court where apples, oranges and pumpkins get bundled in the same fruit basket.
(Apar Gupta is an independent lawyer and frequently writes on regulatory and legal developments in the technology space. The article was published on BloombergQuint. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)