(I had written this article after the Supreme Court’s refusal to quash a defamation case in a Thane court against a student-blogger in Kerala, Ajith D. A shorter version was offered to a newspaper which refused to publish it. So finally I’m posting it here. For a better context, please see Lawrence Liang‘s posts on the subject. Whatever is written below is without prejudice against any of the parties named. For the history of the Shiv Sena encounter with Orkut, I am graetful to Gaurav Mishra for this excellent article.)

If you search “Shiv Sena” on just the communities section of the social networking site Orkut, you get 244 results. There are love-Shiv Sena and hate-Shiva Sena communities (essentially discussion boards), but my favourite is one called “Shiv Sena v/s Anti SS” which seeks to sort out differences between “sainiks and anti-sainkis”. It further states, “If anyone posts hurting a fellow member, that post will be deleted. There must be some amount of respect towards fellow members. The owner being Anti shiv sena will debate for Anti SS.” The community was started by “Madhushree It takes courage to be true.” and has 111 members at the time of writing.

That is far outnumbered by the 8,262 members who form the largest Shiv Sena community, called just “Shivsena”. The latest post there is by one Kamlesh who shares a link to a powerpoint presentation on “Balasaheb”. Predictably, it leads some into saying Raj Thackeray’s got more attention in the presentation and Kamlesh denies the charge.There are dozens of Sena communities on Orkut – district chapters and even a Delhi Shiv Sena community.  While the chatterati pokes each other on Facebook, the proliferation of Shiv Sena communities on Facebook is a telling example of how small town India has taken to Orkut like fish to water. From Agra to Amrawati, Cooch Behar to Calicut, young people are speaking on Orkut. Those Shining Indians of the Metropolis who want to see the Real India, could, for instance, look up one of the hundreds of caste communities on Orkut. Not just “Deshastha Brahmins” with its 25 thousand members, Sanskrit shlokas in Devnagiri script on the homepage, you will even find 25 communities of Brahmin engineers such as “Brahmin engineers at SVCE”.

A more disturbing truth the Shiv Sena Orkuteers drive home is that the right-wing Hindutvawaadi Indian was, is and perhaps always be the loudest voice in the Indian internet space. They may not be enough to establish a Hindu rashtra yet, but internet hain na. The hate-Sena communities don’t have one-tenth the membership numbers that the Sena communities on Orkut do. Our Sainiks seem to have become more net-savvy since November 2006 when they filed a PIL in the Bombay High Court demanding that the banning of Orkut in India for hosting an ‘anti-Shivaji’ community, and also asked Sainiks to flag all such communities so they could be filed cases against. Google had banned both pro- and anti-Sena communities for a brief period. Thereafter, Google established a “Priority Reporting Tool” with the Mumbai Police. On police request, a number of communities on Shivaji, Bal Thackeray and BR Ambedkar have been deleted. The student wing of the Shiv Sena has even resorted to violence and vandalism to protest against Orkut.

In 2007, the Pune police arrested four Bangalore based software engineers for posting an obscene profile of Shivaji on Orkut, which showed the Maratha warrior “clad in female innerwear”. One of those arrested, Lakshmana Kailash, was released after 50 days of detention as it was found that Airtel had supplied the police with an incorrect IP address!

It is in such a context that we have to see the FIR in Thane against one such person who runs an anti-Sena Orkut community. 20 year old Ajith D, based in Kerala, must have had a surreal moment reading a summons notice from a Thane court. Ajith went to the Supreme Court to have the case quashed. A news report incorectly gave the impression that it was a defamation case. The FIR in Thane does not mention defamation but even stricter sections of the Indian Penal Code – 506 (criminal intimidation) and 295A, which deals with ‘hurting religious sentiments,’ for long a tool of fanatic groups.

Even so, this falls under the category of “SLAPP” or “Strategic Lawsuit Against Public Participation“, which “is a lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition”. 25 states in the US have statutory protections against such practice. Cases against painter MF Husain under Section 295A in various parts of the country, and a case in Gujarat against psychoanalyst Ashish Nandy, can be called SLAPP cases in India.

Even though Ajith D’s case was not one of defamation, the incorrect news report has given way to quite some public debate on online speech and defamation in India. While Ajith D may yet have to collect the courage to travel from Kerala to Thane at his own expense to appear before a court and defend himself, despite his fears that a Shiv Sena lynch mob will be waiting outside to take his life, this may be an important case to watch as it will set a precedent. Such case law is needed to take the debate on online speech and defamation to its legal conclusion. As social and political contestation in India increasingly moves online, let’s have the ground rules laid out.

In his petition at the Supreme Court, it seems that Ajith D’s counsel tried to argue that the Orkut community was meant only for its members and not for the public. If only he had argued that prima facie the charges made were untenable, perhaps the judgment would have been different. Chief justice KG Balakrishnan said in his oral remarks that as a computer student Ajith should know of the reach of the internet before arguing that he does not have to defend his online speech. However, the hearing lasted barely a few minutes and the written order was six words long: “Heard. The petition is dismissed.” So the conclusion by a news report that “Bloggers may no longer express their uninhibited views on everything under the sun” is an alarmist one.

Incidentally. Ajith has been sued not for creating the community itself but some comments on it made by others. We don’t know what these comments are, but we do know that the December 2008 amendment in the IT Act of 2000 exonerates you from liability of what others say on your forum, website or server. This was probably a response to the arrest of Baazee.com’s CEO Avinash Bajaj in 2004 for the sale of the infamous DPS MMS clip through his website. This amendment in the IT Act as a result of the Baazee episode is an example of the law responding to the realisation that the internet is different from real life and thus the definitions of “publisher” and “distributor” as reflected in older laws are not strictly applicable to the internet. So perhaps the amended IT Act will also come to Ajith D’s rescue.

A similar response is perhaps required to the use of SLAPP against online speech. For while media organisations facing such cases have the resources to face “legal harassment” as they do all the time with defamation and 295A notices, these means used against ordinary individuals are certainly a great detriment to free speech. Ask anyone who wants to start a hate-Shiv Sena community on Orkut now.

And yet, I have been a little disappointed by the response to the Ajith D case. Apart from the issue of SLAPP harrassment, there is also the question whether netizens are willing to take responsibility for their words. This means that while you may have complaints with the letter of the law, with the way libel and 295A are used to suppress speech by filing cases in any part of the country, do you disagree with the spirit of the laws themselves? For instance, making a truth claim on your blog that your neighbour is a rapist, without evidence, certainly amounts to defamation. Defamation in India has ten strong defences, truth being the first one, and this is certainly tilted in favour of freedom of expression. If a Hindutvawaadi writes a blog post saying obscene things about the Prophet, will liberals still speak against the use of 295A? Before I am accused of speaking from the luxury of not being sued like Ajith, let me declare that I run a similar political online community where there was a recently a comment, “Kill Modi”. That amounted to inciting violence and I immediately deleted it.

That also leads you to ask why no one ever sued Hindutva communities on Orkut for ‘hurting religious sentiments’ or ‘criminal intimidation’ (because liberals have no imagination, only protest).

In 2005, the Indian Institute of Planning and Managment sent “legally notarised emails” to two bloggers, Gaurav Sabnis and Rashmi Bansal. I was amongst countless bloggers rallying around Sabnis and Bansal, and what was most impressive that they did not take down their ‘offensive’ posts despite the threat of defamation cases. They took responsibility for their words and were willing to defend them.

But I am less sure of a similar let’s-side-with-David response that bloggers had recently when Chyetanya Kunte, a Netherlands-based Indian citizen and blogger, took down his post “Shoddy journalism” and put up a legal-sounding post apologising to Barkha Dutt and NDTV Limited: “I have come to the conclusion that my post contained untrue and defamatory statements and that I have expressed myself in a disproportional manner.” The apology mentions the specific charges made in his post and which he now withdraws.

So why did Kunte choose not to defend his post? There could be two reasons. A) He really felt his post was indefensible, that it amounted to defamation. B) He valued avoiding the hassle of a court case above standing up for his freedom of expression.

The post in question, obviously permanantly archived on Google cache (see the last post here), seems defensible under both Indian and Dutch defamation laws, particularly because the one charge that could have amounted to defamation in the absence of evidence (causing Indian casualties in Kargil) was made not be Kunte himself but by quoting a Wikipedia entry.

Had a civil defamation case been filed in India, he would probably never had to come to India. Had it been a criminal defamation case, he would have had to appear before the court only in the first hearing. He would just need to hire a lawyer. The lawyer’s fee is the cost of free speech anywhere in the democratic world. Those of us refusing to pay that much are virtually giving up our entitlement to freedom of expression.

If Kunte is not willing to stand up and defend himself, why is the rest of the Indian blogosphere shedding tears about his freedom of expression?

Coming back to the Shiv Sena, there are 10 hate-Shiv Sena communities on Orkut at the moment. In solidarity, I have joined 9 of them, leaving out the tenth because it wants you to ‘hate’ “ghati marathi” as well.