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The Rise of Totalitarian India

By: Saurav Basu
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(Author is an independent researcher, and freelance contributor based in New Delhi, India)

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Big brother is watching you - 1984, George Orwell [correction, 2008]

K Lakshmana used to be a 26 yr old, cheerful employee working with HCL in Bangalore. On August 31 in the early hours of the day he was blissfully sleeping when he was rudely awaken with a jolt. He was facing a dozen cops who ordered him to be get immediately dressed since it was going to be a long ride. He was told he was being arrested for defaming Shivaji? A terrified Lakshmana pleaded that he did not know any Shivaji? Of course you do, the cops retorted; we are referring to Chhatrapathi Shivaji Maharaj

Suraj, is a moderator of a small community on the popular personal networking site, Orkut. In the night of August 4, cops barge into his apartment. A dazed Suraj asked what it was all about? "You are party to addressing hate mail to Bala Saheb Thackery", the angry cop responds. But that is impossible; I never wrote anything begs a tearful Suraj. "You did not write anything, but you didn"t delete the hate message written by a member of your community named Farique from Lucknow who is still absconding. As the moderator of the community, you are being arrested under the law of the land"

Rahul Vaid was an IT professional in Gurgaon. Another day he is an undertrial. The cops have arrested him on the orders of a local Congress politician from Maharashtra who noticed vulgar language used against Sonia Gandhi by the accused in "We hate Sonia Gandhi" community on orkut. Rahul faces a prison term upto 5 years for his crime, which is at par with circulating child pornography or helping a terrorist both materially and ideologically to hatch a conspiracy in your home with full knowledge of the consequences.

India it is said is a free nation. It is said that every citizen is guaranteed the fundamental right to free speech and expression. And these fundamental rights are not ordinary legal rights; in fact, they enjoy such a sacrosanct status in the constitution that their violation can be challenged directly in the Supreme Court vide article 32 of the constitution, which, according to B R Ambedkar, constituted the "heart and soul of the constitution." Unfortunately because of prevailing communal tensions during partition and the urgent need for communal harmony, the fundamental right to free speech and expression could not be made absolute in India unlike most Western countries, especially in the USA.

The law of the land which restrict freedom of speech and expression and its interpretation

The law imposes certain restraints as per sections 153(A), 295(A) and 298 of the Indian Penal Code. Summarizing the position of Sections 295A and 298, Arun Shourie clarifies that "two sets of operative words in these sections are vital". As is obvious, Section 298 can be invoked only against words that have been uttered, or sounds that have been made within the hearing of a person, or gestures that have been made or objects that have been placed within the sights of the complainant. The courts have reiterated what is obvious from the wordings of the Section, namely, an article written and published is none of these and therefore is not actionable under the section. See Shailibhadra Shah Vs Swami Krishna Bharati, 1981, Criminal law Journal, Gujarat, P.113

Secondly, merely facts which injure the religious feelings of some groups is not sufficient to make it actionable under the sections. Section 298 requires the person to have spoken the words with the deliberate intention of wounding the religious feelings of any person. Under section 295(A) the words, signs, representations must have been put out with "deliberate and malicious intention of wounding the religious feelings of any class of citizens of India"

The courts have further clarified that the test for this purpose is the reaction of the ordinary man with ordinary common sense and prudence and not the reaction of some abnormal or hypersensitive person.

In M S Varsha Publication Pvt. Ltd Vs State of Maharashtra, the court had observed that an article containing a historical research cannot be allowed to be thwarted on such a plea that the publication of such material should be hit by Section 153(A). Otherwise the position will be very precarious. A nation will have to forget its own history and in due course the nation will have no history at all. If anybody intends to extinguish the history of the nation on the pretext of taking action under the above section his act will be treated as a malafide one.

Similarly in the Azizul Haq Kausar Naqvi case the full bench of the Allahabad high court observed that if the words spoken or written are couched in temperate, dignified and mild language, and do not have the tendency to insult the feelings or the deepest religious convictions of any section of the people, penal consequences do not follow

The Supreme Court in another case also holds "our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered."

Application of law has been lopsided

The Hindi translation of Ram Swarup"s brilliantly researched book "Understanding Islam through Hadis" based entirely on orthodox and revered sources of Islam first published in the US in 1982 was banned in 1988 in India and the binder and the publisher of the book arrested. The Delhi Administration screening council had cleared the book of any objections but under sustained pressure from Syed Shahabuddin of the Congress party, the administration finally succumbed to the pressure and banned it in 1990.

Salman Rushdie"s Satanic Verses was again banned in India in order to appease the jehadi mentality of certain Muslim groups.

Yet, the shrill anti Hindu tones of history books authored by militant Marxists like D N Jha and others have been rendered mandatory reading material in universities.

India"s Dalit literature with its share of pseudohistory is teeming with references which brandish Rama and Krishna as casteist, and consistently slander Hindu gods and goddesses. The curious grounds of section 153 and 295(A) might subject even B R Ambedkar to the charge of offending religious sensitivities of both Muslims and Hindus in several of his books.

Abid Reza Bedar, then director of the Khuda Baksh library in Bihar, while presiding over a book launch ceremony in 1992 gave his opinion that "kafir" does not refer to Hindus, and this word has been exploited by those who want to disintegrate the nation. The next day, two urdu dailies, the Qaumi Tanzeem and the Azimabad Express used these choicest expletives against him: dareeda zahan [dirty minded], rushdie saani [rushdie the second], be-din [irreligious], murtad [apostate], zindiq [a hopeless infidel], mulhid [heretic] and dahariya [materialist] amongst others. He was also accused of being an agent of the Sangh Parivar.

All in all, we find that Sections 153A and 295A of the Indian Penal Code, and Section 95 of the Criminal Procedure Code were often used by Muslims to ban or proscribe publications critical of Islam.

In contrast, when M F Hussain abused Hindu goddesses, the court let him off on the technical grounds of freedom of artistic license and invoking a personal interpretation of Khajuraho, despite a malicious attempt clearly visible in his work like when he paints Sita riding on the back of Hanuman wearing nothing. (In the Ramayana, Sita refuses to escape with Hanuman from Lanka for that went against the ancient Ksatriya ethos where Rama was duty-bound to rescue her after defeating Ravana) But Hussain never attempted to even paint the shining luminous and spiritual face of the Prophet of Islam since he very well knew that doing so would have his head smashed and his hands bashed!

Psychoanalytic sexually perverted analysis of Hinduism studies have been consistently patronized in India in the name of maintaining academic independence. However, such independence is only available to writers who defile Hindu sensitivities and not against Islam. Missionary literature is teeming with abuse of Hindu theology but that is to be condoned in a secular country.

The author personally supports absolute freedom of expression and does not believe in any kind of press or internet censorship in the name of maintaining communal harmony. The above examples cited are only to highlight the despicable double standards of Indian pseudosecular governments pandering to Islamic fundamentalists and anti Hindu leftists.

Internet bondage and the criminal abuse of the law

In the early hours of August 31, 2007, K. Lakshmana, a 26 yr old employee of HCL was asleep at his home in Bangalore. He was woken up by eight policemen from Pune who told his terrified self that he was being arrested on charges of defaming Chhatrapati Shivaji, an issue which had led to riots and closure of cybercaf├ęs in Pune. He was put in jail for 50 days where he was housed with 200 other undertrials. After 50 days, he was let off in exchange for 3 other youths when the police came to realize they had been given the IP address of the wrong internet user by Bharti (AIRTEL). When questioned on the blunder due to which an innocent youth suffered incalculable mental and physical agony apart from being afflicted with psychological breakdown, the assistance commissioner in his response was insensitivity personified "So what? We made a mistake" In any developed nation, Bharti would have been sued for compensation to the extent of being rendered bankrupt under such circumstances, but here in India, it had the audacity to demand unpaid bills from the victim, the very next day of his release.

It must be added that Chhatrapatiji Shivaji had consistently been defamed by Mughal chroniclers but yet, he was never as thin skinned as some of his intolerant "supporters" who go about destroying priceless Sanskrit manuscripts (ironically the very language which Shivaji had rescued from the Persian invasion), manhandle eminent authors and vandalize property. No action has yet been taken against such culprits.

Rahul Krishnakumar Vaid from Gurgaon, a 22 yr old IT professional from Haryana was arrested by the Pune police for posting>derogatory obscene content about Congress chief Sonia Gandhi and Mahatma Gandhi on an orkut community named - "I hate Sonia Gandhi". What is significant is Google played a key role in betraying the accused to the police by claiming it was only abiding by the law of the land proving they are nothing more than a bunch of cheap shopkeepers - all the high talk on maintaining privacy applies to developed nations and not to the third world! Previously, Yahoo had betrayed pro Democracy supporters in China to the Chinese authorities knowing fully well what fate awaited the accused. Again, business interests had compromised all ethical considerations.

In both these cases, the accused were arrested vide the Information Technology, 2000 Section 67 which refers to the publishing of information which is obscene in electronic form. It refers to any material which is lascivious or appeal to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. Conviction carries a prison sentence up to 5 years, which in case of multiple convictions or on being repeated may be extended up to 10 years. This law obviously pertains to pornography, but is being willfully manipulated by vested interests in framing Indian internet users, who often vent their frustrations online regarding issues related to the system, the government and corrupt netas.

In Gujarat, a couple of years back the Gujarat police picked up another young professional, Omar Farooque, in Delhi who had sent hate mail to Gujarat chief minister Narender Modi. But the accused was pardoned after the personal intervention of Modi, which for once was quite a liberal stance adopted. However, Ashis Nandi was charged with spreading hatred against a particular group but Gujarat police actions against him this time was stalled by the SC probably because of the academic stature of the person involved unlike other cases where the individuals involved are mere mortals.

Unfortunately, things have progressively worsened in the absence of protests by the Indian internet community against suppression of free speech and allowing totalitarian laws to kill internet liberty. We have indeed started emulating China in more ways than one. Only yesterday, Suraj a moderator of an Orkut community was arrested on the ground that one of its members had posted hate content against Bal Thackeray. As the news report suggests, there was a larger political conspiracy involved. But it also reveals how we are slowly transforming ourselves into a police state, where freedom of speech and expression is being annihilated at the altar of political opportunism and police parochialism. It is beyond my comprehension as to how a moderator of a community can be charged for supposedly failing to delete an improper message in his community. A moderator is just another member, who manages the community on a voluntary basis without any remuneration for his services which makes him subject to no obligations or official responsibility. The author himself is the moderator of the Hinduism community on the social network site Orkut which has member strength of 85,000+, and thereby understands that it is impossible to scan every message for hate content. In no other nation, except in totalitarian regimes, would such subversion of justice be allowed to happen. By the ludicrous logic of the law, every member of the community is subject to the charge on the ground that he failed to attract the attention of the moderators to the presence of hate content in the community!

What is amply clear is that particular sections of the Indian IT action are largely subject to interpretation and which can be conveniently manipulated by those with vested interests. The nature of the law is such that those with political and financial influence can abuse this law and settle personal scores against their enemies. Imagine how easy it is to defame a person by merely posting an abusive message in his /her community and then complaining to the cops. This can not only destroy lives and careers of several young people for whom the internet has become a part of their daily lives but effectively scare away people from making their voices heard online

Moreover sections of the police and justice department are seemingly not updated with the idea of information technology. The very fact that acts like Section 67 of the IT act render you liable to arrest on mere charges of suspicion without any absolute evidence and treat you at par with hardcore criminals are a telling commentary of the draconian nature of the act. If merely posting a sexually vulgar message against a lady on a remote area of the internet renders you a criminal in the face of the law, then why ignore the thousands of individuals who routinely post such messages referring to leading heroines.

In all these three cases, we also see the dangerous trend of obscure political leaders and groups abusing the law to gain some political mileage at the cost of people whose crime, even if it may be called so is at best childish and who deserve nothing more than a warning to be more careful in the future. Also, the possibility of exploiting the law and framing innocent net users is a sinister possibility especially when the law is maliciously interpreted contrary to its spirit by those who are supposed to enforce it after due deliberation

It is high time, internet users of India came forward to challenge these draconian provisions of the Information Technology act while simultaneously demanding justice for those who have become hapless victims under the provisions of this law. This is an appeal to all thinking Indians to come forward and prevent the suppression of freedom of free speech online. Sign the petition below (and ask your friends and acquaintances too) and register your first protest in this struggle to liberate internet users in India from political and police bondage.


Free Speech for Indians on internet

Saurav Basu

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