Wednesday, February 25, 2009

The curious case of Ajit D.

Sigh! It's been a long time and finally I have something to write about. After all, it's an issue of survival(hope that sounds apocalyptic enough).

The case of Ajit.D has lit up an Olympic Torch-ful of protest as angry bloggers and some elements in the press are howling(or in the case of The Hindu, soberly reporting) in protest and for good reason too. The Supreme Court following its tradition of oscillating between admirable progressiveness and downright stuck-in-the-mudism has delivered a verdict which is amusing and alarming at the same time. Here's a quasi-legal take on it.

There are a couple of things which confuse me though. First of all, is there no difference between a social networking site and a blog in 'legalese'? If there is and even if there isn't, why has the media and presumably the court(based on the reports I have seen) reported it as an issue facing blogs? I agree that these media are related and often overlap but are not the agreements that form the basis of use of these two media different? For that matter, how is it that orkut itself has not been added as a party to this case? There are innumerable issues here which touch not only concepts of freedom but also the working of websites, especially social networking sites.

Of course this does not imply that the main struggle, which is one against sheer stupidity and shoddy(oops i said the 's' word) judicial processes be ignored but let's hope this does not merely subside into yet another instance of the 'Outrage Industrial Complex' having a field day.

ps. Has NDTV24x7 reported the issue yet? Their website does not seem to have a story on the issue! I can imagine Barkha Dutt smirking
ps.2 Katrina Kaif, I believe, is a gracious woman..else I might be in a pickle

6 comments:

The Quirky Indian said...

Very timely post, Prasanth, and on a very critical issue.

The problem is less with the courts and more with the law. The 'reasonable restrictions' to the Freedom of Expression are so vaguely worded, so all-encompassing, that they can be interpreted to fit any and every situation. I keep saying - and making myself more unpopular - that our freedom is just an illusion.

We haven't helped our cause by calling for tougher laws and giving more power to our notoriously corrupt and inefficient police force. And finally, who cares about outrage in the blogosphere? We don't matter. We can continue venting on our blogs, all the while watching every freedom we have being slowly taken away. This is the truth about India that we don't want to acknowledge - that we are almost a banana republic ourselves.

Quirky Indian

PS: Tried commenting twice, because the first time showed an error. In case both make it, please delete the first one.

Prasanth said...

@QI
I largely agree with your comment except for one small quibble. I do not believe that the problem is with the law. Laws by nature are often general because framers hope that there will develop around these laws, a political culture which will properly interpret them and actually use the vagueness as an advantage to extend the original good intentions(assuming the intentions were good).

For instance, the UK, which has one of the stablest democratic systems, does not even have a written constitution.

That's the reason I blamed the courts.

As you point out, our freedom is in many senses, an illusion. To paraphrase one of the earliest promoters of Tehelka (who was hounded by the govt after Operation West End), 'You are out of jail only because the government does not want you inside it.' And we keep asking for tougher laws.
The lambs that cling to the butcher are the first ones cut. :|

The Quirky Indian said...

Prasanth,

While I agree with the larger English Common Law comparison, in this case I actually meant the law - as set out in our constitution. The exceptions to that critical fundamental right, The Right To Freedom, are codified...they are part of the constitution, and as I mentioned, are so vaguely worded that anything can be said to violate those restrictions. In other words, going by the letter of the law, the judges didn't have much leeway. So I wouldn't blame them.

On the other hand, if one questioned the legality of those restrictions in terms of the spirit of the law (similar to historical precedents in English Common law), that is another matter and is for a larger constitutional bench to decide.

Quirky Indian

Prasanth said...

@QI
Attempting to parse your statement(do correct me if I am wrong)...

"...are so vaguely worded that anything can be said to violate those restrictions. In other words, going by the letter of the law the judges didn't have much leeway."

As far as I know, the judges do have quite a bit of leeway when it comes to interpreting any action by the executive that invokes these restrictions. It is a different matter if the legislature formalizes a specific kind of restriction into a law. However when it comes to mere interpretation(either by the executive or a lower rung of the judiciary), the judges do have the power to rule differently.

Essentially, the judges of any court do not have to conform to any one definition of what constitutes "public morality" or "incitement to offense" or bow down to anybody's interpretation. That they choose to do so says something about the political(and judicial culture) of our time.
Prasanth

The Quirky Indian said...

In my view, while such and broad and universal terms like “public order, decency or morality”, “security of the state” or “outraging religious feelings” make it easier for the state to classify any act, for example Ajit’s action, as an offence under codified law, they also make it difficult for the judges to interpret otherwise – specificity simply cannot be introduced to such all-encompassing vagueness and the only other rulings possible are that the law is either “void for vagueness” or that the restrictions are unconstitutional. I am not a lawyer, and I don’t know if the precedents for the former exist in India, but the latter is another matter completely. Perhaps if the appeal were specifically asking for the restrictions to be declared unconstitutional, the verdict might – and I buy your point, that’s a very big might – have been different. Perhaps Ajit’s mistake was not challenging the vagueness of the restrictions – my point being that the court might have had more leeway in interpretation then, rather than in the case where the prosecution seemed to have a reasonable (from the judge's point of view) case (that Ajit's action violated the law) within the vague framework. It’s all in the realm of hypothesis though, and with my limited legal knowledge, I am not sure if any of that made sense! If it didn't, well, we'll just have to move on, since we have differing interpretations.

Cheers,

QI

Prasanth said...

@QI
Two semi-blind men feeling up an elephant ;)

As far as I know, the concept of restrictions(which was adopted by the legislature/constituent assembly) cannot be repealed unless it can be proved to be damaging to the basic nature of the constitution. That sounds pretty impossible at least as of now.
And I too do not know of any case of a law being declared "void for vagueness".

As for Ajit's case, quite a few legal experts seem to believe that he will be acquitted by the Mumbai High Court. The issue is what happens to when he goes to Mumbai and finds the Shiv Sena Welcoming Committee waiting for him. It would appear that that was one of the major issues he was afraid of as well.
Poor chap!
Prasanth