By Rishi Majumder

AT TIMES, the law becomes a smoke-screen for itself. How things seem to be shrouds the way they actually are. Here’s how things seem to be. Righteous Indian crusader Mufti Aijaz Arshad Qasmi and journalist Vinay Rai have taken multinational giants Facebook, Google and 19 other websites to task. They have done so by filing a civil suit and a criminal complaint because of images they thought were offensive to Hindus, Muslims and Christians, as well as several political leaders.

Both cases lie in Delhi’s lower courts. The civil suit, filed by Qasmi, prays for the removal of this content and assurances that such content will not be hosted by the websites in the future. The criminal complaint calls for the prosecution of these companies under Sections 292 (“sale, etc. of obscene books, etc.”), 293 (“sale, etc., of obscene objects to a young person”) and 120B (criminal conspiracy) of the Indian Penal Code.

While judgment on these cases are pending, the efforts of Qasmi and Rai have begun to bear fruit. In the criminal case, the websites have been issued summons by a Delhi trial court. Facebook and Google India sought a stay on these from the Delhi High Court, which was not granted. Instead, Justice Suresh Kait warned that, ​“like China, we will block all these websites”, while asking the companies to develop a mechanism to keep a check on and remove ​“offensive and objectionable” material. With respect to the civil suit, the companies have been told by the court on 6 February to submit within 15 days reports of steps they have taken to block offensive content. Also on the same day, Facebook and Google removed content from the Indian domains of their websites.

Now for how things actually are. First, the least one would expect of such a criminal complaint is that it would mention the actual perpetrator of the crime. But, as Sunil Abraham, executive director at the Centre for Internet and Society, wrote in TEHELKA (The Quixotic Fight to Clean Up the Web, 28 January): ​“It is curious that the complaint (of Rai) does not mention specific individuals or groups directly responsible for authoring the allegedly offensive material. Only intermediaries (the websites) have been explicitly named.”

Second, to hold these websites responsible for these crimes, one would have to prove that they had ​“actual knowledge” of this content (as stated in Section 79 of the Information Technology Act, that is being read along with the IPC to interpret the latter in the context of this case), and did nothing to prevent it.

Otherwise, as Congress MP Shashi Tharoor tweeted in the middle of this imbroglio, prosecuting Facebook and Google for this content would be like ​“phone companies being sued if someone sends a defamatory or obscene SMS”.

Third, what mechanism does the court expect Facebook and Google to develop to keep a check on and remove ​“offensive and objectionable” material? According to Oxblood Ruffin, a Canadian hacker who is a member of the Cult of the Dead Cow (cDc, the hackers group that coined the term ​‘hacktivist’), it’s ​“impossible” for websites such as Facebook and Google to actually ensure that such content isn’t hosted in the future.

Facebook and Google are fast emerging as the biggest platforms for expression and exchange in a country that has the third largest number of Internet users in the world (175 million broadband connections by 2014, according to the Department of Telecommunications).

> Instead of creating an authority to police the Web, the Internet rules outsource this job to intermediaries

“You will have to double the workforce to have content monitors, and even then it won’t be possible,” says Ruffin. ​“You aren’t going to filter the content (according to keywords) because that will raise censorship issues.”

Yet filtering content seems to be the only way Facebook and Google can deliver what Justice Kait asks of them. And blocking so many websites because they happen to contain ​“obscene” keywords like ​‘sex’ or ​‘virgin’ is a lot like banning lawful assembly because someone made a hate speech. The irony is this would make us ​“like China” anyway.

AT THE heart of this controversy is one of two new sets of Internet rules notified by the Centre last April, dealing with the liability of intermediaries, which is being used to give the provisions of criminal and civil law more specific effect in the courtrooms. For instance, Rai’s counsel argued that Google’s terms of service didn’t reflect these rules, as they were supposed to. This was refuted by his opposing counsel, who pointed out that the terms of service of the Department of Information Technology website didn’t contain them either.

Rightly so. This set of rules, like the two cases pegged on it, infringes upon our Constitution as well as our common sense. Instead of giving us a clear idea of what they wish to censor, the rules pretend to elucidate this with terms like ​“grossly harmful”, ​“harassing”, ​“disparaging” or ​“insulting any other nation”. And ​“blasphemous” — a frightening term. ​“Blasphemous is a word alien to Indian legal language,” says Internet freedom activist Anja Kovacs. ​“But now, with these rules, it could gradually be incorporated into mainstream law.”

Further, instead of appointing an authority to administer them, the Internet rules outsource this job to the intermediaries — making them liable to remove within 36 hours any information they store, host or publish, if a complainant claims that this contravenes the rules.

FINALLY, LET’S return to the law. These rules, adopted by the Centre under powers conferred to it by the IT (Amendment) Act, 2008, are a smokescreen that covers the infringement of a very basic Indian fundamental right. Article 21, which says: ​“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

In 1977, animal rights activist Maneka Gandhi was asked by the government to surrender her passport, and not given a reason for this. Not given a chance to be heard. A writ petition filed by her led the Supreme Court to deliver a landmark judgment that held that the right to ​“life or personal liberty” included Maneka’s right to travel because ​“a fundamental right is not an island in itself” and so Article 21 was to be understood in conjunction with other fundamental rights [such as the freedom of speech, enshrined in 19(1)(a)]. Justice VR Krishna Iyer, who was on the Bench that delivered the judgment, explained that ​“the spirit of man is at the root of Article 21”, ​“personal liberty makes for the worth of the human person” and ​“travel makes liberty worthwhile”.

But most significantly, the court held that the ​“procedure established by law” in Article 21 could not be a mere semblance of procedure but should fulfil the principles of natural justice — one of which is ​“the right to be heard”.

With the passing of these rules, millions of Indians have been denied this right — including the writer of this article. If, on going online, there is a complaint calling it ​“grossly harmful”, ​“harassing”, ​“disparaging”, or worse still, ​“blasphemous”, it will have to be taken down, in 36 hours, with his only recourse being to line up at the same courts that lawyers representing Facebook and Google and Qasmi and Rai have been visiting for months now. That’s where the smokescreen dissipates.