3 legal cases that threaten open internet

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.

As per this judge since the Holy Quran informs us that the Prophet was fond of eating pumpkin, it is blasphemy to state otherwise.

This is blasphemy as a legal offence under sections of the Pakistan Penal Code. On conviction, punishable by death.

Though Lahore is only about four hundred kilometres from Delhi, Pakistan still seems distant from India. Any comparison of the State response to freedom of speech in both 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 practise and laws.

And as debates on freedom of speech become a monthly event in India, fireworks are no longer contained to social media platforms. Sparks are entering our courtrooms.

Kamlesh Vaswani's crusade against cyberporn

In 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 a young physiotherapy intern, Jyoti Singh, it brought thousands of protesters carrying placards to India Gate.

The then chief justice of India, justice Altamas Kabir made a rare public statement on January 21, 2013 terming these protests as, "fully justified" and, "absolutely necessary".

In the coming months debate did not settle as India confronted its long history of discrimination and violence against women. By the end of April, Kamlesh Vaswani interjected.

Vaswani seemed convinced that the reason for violence against women was a rising consumption of online pornography. As per him internet porn is, "worse than Hitler, worse than AIDS, cancer or any other epidemic. It is more catastrophic than nuclear holocaust".

The Supreme Court 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 Supreme Court is very picky what 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, ie porn viewing leads to sexual violence.

The frivolity of his pleadings while striking, do not exceed the ridiculous objectives they aim to achieve. As per him the Court should declare viewing pornography even in the privacy of a bedroom a criminal offence.

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 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 Kamlesh Vaswani gets his way, not only will 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 Supreme Court. For instance, a significant hearing of this case happened on July 8, 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 Supreme Court 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.

The Supreme Court in the past had termed online porn to be, "hydra-headed" and the case to be, "non-adversarial". As per it the petitioner and the Union government share a common interest.

Banning smut and protecting women.

But, this ban was not to last. Indians like their porn and an immediate public backlash made the central 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 Supreme Court permitting an organisation called the Supreme Court women lawyers' 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 Supreme Court seems to have shifted focus to child pornography and asked all these parties to submit their suggestions to the government how to implement it. Thankfully no websites were blocked this time, but that's only a matter of time.

Sabu Mathew wants to save the girl child

A case, which predates Kamlesh 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 even 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 fellatio. A CD containing this clip was listed for sale by a User named as, "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 but it took close to ten years for the case against him to be finally quashed by the Supreme Court.

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 Supreme Court 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 Supreme Court suggest an interest to regulate 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 Supreme Court 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 Supreme Court that also contain these phrases.

This line of thinking also ignores 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 Supreme Court 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 are the Santa-Banta jokes. They take the form of a conversation between two Sikh men whose ignorance and naiveté is aimed to evoke 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 Supreme Court 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 exist 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 with 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, the very least is required a prima facie determination. 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 Indian Penal Code. These provisions are possibly the only way Chowdhary can be successful in making her claims.

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 Supreme Court, which has narrowed their scope, they can apply only in a restricted set of circumstances. 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, "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".

But the Supreme Court 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 (SGPC) amongst others have filed independent petitions claiming the same relief.

As per press reports the Court has asked a committee to give suggestions how Sikh jokes can be regulated online. Such a committee would be well served by Khushwant Singh's warning in the epilogue of his A history of the Sikhs, of their self-image bearing, "little resemblance to reality", of prosperity being replaced by, "empty bombast".

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 1970's. 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 Supreme Court 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 Kamlesh Vaswani case in its August 2015 report stating, "The harmful and destructive exposure to cyber porn 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 Indian Penal Code which 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.

A large part of this has to do with a lack of appreciation of what the Internet is, and how it works. The Court seems overwhelmed by the flows of data. It seems to believe it has the burden of policing the entire internet that is a refuge of perverts, misogynists and racists.

On most days this may be correct. But how much is a communications medium to blame and what can be done to correct it? Can such social issues be solved by court judgments 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 overbroad 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 Supreme Court 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, with a sense of compromise has kept them pending.

The Court performs well when it limits itself to legal determinations that are its core function. When it checks whether the law made by the legislature is within constitutional limits. This is evident from its landmark judgment in Shreya Singhal v 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 judgment seems to be in danger today.

To conclude, what is needed today are robust policymaking 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 after 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.

(A version of this article first appeared on Apar Gupta's website.) 

Also read - Section 66A may be gone, not hate speech