The authorities in India have to wake up to the reality that censorship is not a norm, acceptable in the world today. In what could be considered as one of the most controversial proceedings in the country’s legal history, 21 companies including Facebook, Google, Yahoo, Microsoft and YouTube are to appear in a trial court in New Delhi on 13 March to show cause as to why their worldwide web content should not be banned in the country, for the companies not being able to prevent users from posting ‘objectionable’ contents. The irony of it, beyond the fact that what is being prayed as a relief in the complaint is in essence worldwide censorship of information, and the curtailment of freedom of expression and opinion, Mr Vinay Rai, the complainant in the private petition is reported to be a journalist!
The petitioner had sought and obtained Government of India’s consent to prosecute as required under Section 188 of the Code of Criminal Procedure, 1973. In fact the sanction, issued by the Ministry of Communication and Information Technology was filed directly in the metropolitan magistrate’s court by the government. The companies panicked and approached the Delhi High Court seeking a stay of the proceedings, which has been unsuccessful so far, but has also provided the Court to indicate its view on the subject that does not look promising. The presiding judge has reportedly said during the hearing that “[y]ou must have a stringent check. Otherwise, like in China, we may pass orders banning all such websites”. Companies should “develop a mechanism to keep a check and remove offensive and objectionable material from their web pages” the Court said further.
The case gains prominence in the background of an opinion publically expressed by the Union Minister for Communications, Mr. Kapil Sibal in December last year. On a question concerning censorship of contents on the worldwide web, the minister said that the government would soon ‘crackdown’ on ‘unacceptable’ contents. The Minister however did not bother to elaborate, as to what contents would be acceptable, since no one in the world probably could provide an answer to this question. Acceptability of opinions and its forms of expression is subjective. In essence what is acceptable to one person may be objectionable to another. In many ways what the court is now expected to decide is also pretty much the same, ‘what is acceptable in the India’.
At the core of the issue is the right to free speech and expression, covered by Article 19 of the Indian constitution and its appendage, self-censorship. Indeed the constitutional right comes with riders, which the country’s courts thus far has held reasonable.
The Information Technology Act, 2000 prescribes a legal framework for internet content and use in India. The government has used the law whenever it felt convenient to blind internet contents from users. Many of these instances challenge common sense. The government has used the law, for instance to remove contents that allegedly criticised Mr. Bal Keshav Thackeray, a controversial figure in the country, infamous for his racial, religious and otherwise extremist views, from the social networking site, Orkut. The fact that Thackery’s opinions and many of his public calls impeccably executed by his fanatic followers, for which no restraint has been imposed so far, are incompatible with the constitutional guarantees, and further, could be interpreted, as crimes against national security, integrity and public harmony did not however deter the government. The government chose to demand Orkut to withdraw the comments posted against Thackery, on the grounds that such comments will harm national security, integrity and public harmony.
The government’s double standard is visible further for instance in the Union Minister’s opinion that content in the internet depicting obscenity and violence must be removed. If this logic is applied then many of the country’s temple sculptures and paintings must also be removed from public view. What more damage could violence in the internet pose to the country than what millions of Indians witness daily in the country’s streets at the hands of their own law enforcement agencies?
The triviality of such restrictions are further visible, when prohibitions are used for private profit, as it happened in July and December 2011 when Internet Service Providers (ISP) blocked file-sharing sites to prevent copyright violations of movies, of which one was produced by an ISP, Reliance. Yet again another controversy erupted in a limited way in India when the Google in December 2011 revealed that out of an estimated 358 items that the government wanted Google to be removed from its worldwide web, 255 were, according to the Google’s transparency report, those that criticise the government. Asia has umpteen examples that should warn Indians where restrictive laws on freedom of expression and opinion could be always used against the critiques of the government. Indians have no reason to expect a different experience.
It is in the midst of all these the court case has come up. This however will not be an easy proposition for any court to decide. It would be equally an unacceptable proposition to let the ISPs or the government to decide what could be published and what not, since the freedom of expression and opinion, a fundamental right that has an arguably higher place among other basic rights should not be let to be restricted at the mercy of a company or any government.
The maturity of a democratic state is pegged at the level in which it can, as a society, accommodate criticism, accept as an individual’s opinion as that individual’s right to form and express. Instead of allowing all opinions to be formed and expressed as warranted in a maturing democracy, if censorship is imposed, it will not only reduce the space for free speech in the country, but will also hinder its development. It is this free space that places India apart from most of the countries in Asia where censorship that suits the government is thus far the norm.
The Asian Human Rights Commission expects that the vibrant civil society in the country and the country’s media would not reduce themselves to be observers in a fight which has the potential to change the country’s destiny. On the contrary, to expect that this great nation’s security, integrity and above all the dignity of its people is based on who says what in the worldwide web is as retarded as looking down upon its luminous history.
For information and comments contact:
Bijo Francis
Telephone: +852 – 26986339
Email: india@ahrc.asia, southasia@ahrc.asia
