Some background first:
Dec 5, 2011: In l'affaire Kapil Sibal V/s Social Networking sites, NYT had reported Mr Kapil Sibal as showing the representatives of social networking sites a Facebook page that maligned the Congress Party’s president, Sonia Gandhi, saying: “This is unacceptable.”
In his hurriedly called press-conference after the above news broke, on December 6, Mr Sibal had changed the focus to "Indian sentiments and religious sentiments":
"It was brought to my notice some of the images and content on platforms like Facebook, Twitter and Google are extremely offensive to the religious sentiments of people of this country," Communications and IT Minister Kapil Sibal told reporters here.
"I believe that no reasonable person, aware of the sensibilities of a large section of the communities in this country, would wish to see this in the public domain," Sibal said.
The content posted on some of the sites, the minister said, was so offensive that it would hurt the religious sentiments of a large section of communities in the country. These contents would also offend any reasonable person looking at those images.
"We will not allow the Indian sentiments and religious sentiments of large sections of the community to be hurt," he said.
It was also reported that Mr Sibal also showed some selected journos "offensive images, including porn photoshopped with Mecca pix and Hindu deities" that he claimed were the point of contention.
Before that controversy had died down, we suddenly had this uncannily similar case coming up in a Delhi court:
Dec 23, 2011: Metropolitan Magistrate (MM) Sudesh Kumar took cognizance on a private criminal complaint filed by one Vinay Rai and directed the Centre for taking "immediate appropriate steps" against 21 social networking sites and also file a report in the court by January 13
The offences cited then were, inter alia:
the accused in connivance with each other and other unknown persons are selling, publicly exhibiting and have put into circulation obscene, lascivious content which also appears to the prurient interests and tends to deprave and corrupt the persons who are likely to read, see or hear the same...
The Magiastrate noted that in the website material submitted by the complainant, Vinay Rai, a journalist, contained obscene pictures and derogatory articles pertaining to Prophet Mohammad, Jesus Christ and various Hindu gods and goddesses...
"The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of religious people whether Hindu, Muslim or Christian.
"There are certain degrading and obscene photographs of various political leaders belonging to different political parties and photographs pasted and the language used is also obscene, filthy and degrading," the court said.
The court had directed the Centre for taking "immediate appropriate steps" and also file a report in the court by January 13 and ordered the sites to remove all “anti-social” or “anti-relgious” content by February 6. Now who would decide what is "anti-religious —for instance a religious tenet to a polytheistic religion could be blasphemous to monotheists.
And so to the sanction order today.
Interestingly, in the sanctioning order filed by the centre today, the language used is very general:
There is no reference to any specific "offence" or mention of any "political leader" at all.
Also, it is not clear why these 21 social networking websites (which you anyway can't access if you don't want to) have been chosen and exactly for what content — it is not clear whether Google, for instance, is included for "hosting" objectionable content or because it can be used to "search" it. Will it also be held responsible for example, for pointing those who may be so searching to the "offensive" paintings or cartoons that may be perfectly legally carried by some website hosted in another country?
Clearly, nobody is arguing that offensive material does not exist on the internet, and if anyone — even the petitioner in this case—were to look, they could certainly find far more egregiously "offensive" material or sites.
This is not to question anyone's right to go to court for seeking redress, or to make a case for prosecutable offences to be ignored, but the case promises to be interesting for it raises many fundamental questions about how the courts would handle what is deemed "offensive" and what they would seek to do for cases that though such adjudged are hosted on servers hosted outside the jurisdiction of Indian courts. Would we want to go the way of China, as the Delhi HC judge thundered yesterday in court, in remarks which were only obiter dicta, or perhaps of Pakistan? Or would we once again end up doing a repeat of the farce we managed in 2006?
Perhaps it would be appropriate to end this hurried note with an extended quote from what Shuddhabrata Sengupta pointed out when the websites were first summoned:
Of course there is a glorious judicial precedent, just a few months ago, a court in our neighboring country, the Islamic Republic of Pakistan, ordered the government to remove several Facebook pages, on the same grounds. The Delhi court’s prompt order has an impeccable pedigree.
But it is unfortunate that the censorious zeal that this decision represents is never carried through to what should be its logical conclusion. Someone should enter a plea asking some court somewhere to ban the religious scriptures of all the major religions – because they are all, without exception, along with wise, lofty and humane thoughts, also full of instances of undisguised and explicit contempt for other faiths and for people deemed impure, and full of content that can be deemed ‘objectionable’ by some body or the other, because they hurt some sentiment or other.
Perhaps there is a reason why this is never done. Perhaps, no one, let alone the people who are constantly entering petitions to remove this or that kind of content ever takes their scriptures seriously. Perhaps they do not even read them. Because if they did, all believers (not just the few zealots who take piety to be a sanction for hatred) would be constantly rioting against each other. Clearly this does not seem to be the case.
All right, maybe they (and millions of others) do read them. And in our part of the world, they often read them out aloud, not just in the privacy of their rooms, but with loudspeakers, in public places, with great fanfare in ‘Akhand (unbroken reading) Paths, Quran-khwanis, Shabad-kirtans and Gospel-Witness meetings. But if they do, and if those that read them, and those that listen, take the words that rain damnation and abuse on other faiths and other ways of life seriously, and we still remain relatively insulated from apocalyptic religious wars or random acts of pious violence, then clearly, mere exposure to hateful or contemptuous or abusive speech is not sufficient cause for mayhem. If this is so, then why would a few Facebook sites and Youtube videos (that you can’t access if you don’t want to in the first place) be such grave provocation ?
So, when the learned and esteemed judges, and their wise petitioners, examine the matter at hand, we should remind them, that if we are to take their ruminations seriously, they should ban, not just 21 Facebook pages, but a few (may be all) holy books as well. Then we would have a just solution to the vexing problem of hurt sentiments and objectionable content floating about for thousands of years in the public domain.
The only sane response to the presence of objectionable material (be it online or in physical space) is to make more efforts to create grounds for dialogue and understanding, to undertake vigorous criticism, even in the face of what may seem to be irreconciliable differences. Banning such material only only drives it underground, where it usually circulates with much greater velocity. Those that call for bans on objectionable material hardly ever realize that they act as the best publicists for the material that so offends them.
And, for the record, the full text of the government's sanction order: