Christmas and Lokpal – My Perspective!

Merry Christmas to all Readers!

At the outset let me state that my intention in writing this post is not to hurt anybody’s faith or feelings.  I respect each one’s right to believe what s/he believes in.  This is only to state certain thoughts that came up while going through Christmas messages and the news items related to proposed Lokpal.

Christmas is celebration of the birth of Jesus, the son of God, as a man. Why God decided to take birth as a son of man and why he allowed himself to be crucified?  In my understanding, it was to perform the highest form of sacrifice to save the human kind from sins.  

As the belief goes, human beings were created by God.  But it seems even God is not above mistakes. God could not create a perfect human being; nor could God prevent the first pair of human beings from committing sin.  The result is that human kind is plagued with various kinds of sins.

God continued his efforts to free human beings from sin. He gave them the laws and commandments so that they can just obey those and be saved from sins. Even that did not succeed.  

Then God asked for sacrifices as a means of repentance and seeking forgiveness. God asked human beings to conduct various sacrifices, including that of animals.  It culminated in demanding the sacrifice (almost) of own son from Ibrahim Nabi, as the Muslim faith goes.  Yet the sins of human beings continued unabated.

Then came the ultimate sacrifice. God himself took birth as Jesus, the son of Joseph.  As the Bibles says, “God himself became a man, so that he could die to save us from our sins. My sin carried the death penalty - but he chose to die in my place so that I might live, and he died for you too)”

Did this supreme sacrifice of God succeed? Have human beings got free of sins? Answer is obvious if we look around. God must be thoroughly disappointed at the incorrigible sinners, his favourite human beings!

Coming back to contemporary India, we all acknowledge that the sin of corruption is prevalent in the society.  We proclaim the eagerness of 120 crore Indians to get rid of the corruption (don’t ask me if entire Indians are against corruption, who are the corrupt in India? If corrupt were only a limited number of political leaders and/or bureaucrats, then corruption could not have been so rampant!).  

We Indians, like God, have sought to save our Nation from sins through laws, but to no avail.  Then we sought sacrifices in the form of resignations / jailing of Ministers.  Again corruption has not receded.

We are now seeking the ultimate sacrifice.  We want to create a Lokpal that has the power to remove corruption from us.  We keep hearing clamours for increasing the powers of Lokpal even at the cost of the effectiveness of all other governance systems.   We want to set our Police free of our own control exercised through our representatives.  We want no control, whatsoever, to be on the Lokpal.  We want all our authorities to be accountable to Lokpal and Lokpal himself accountable to none.

In other words, by creating a Lokpal we are willing to undergo the supreme sacrifice to get ourselves freed from the sins of corruption.  We are willing to sacrifice even the well established constitutional principles of division of powers, accountability to elected legislature, independence of judiciary etc, for our single aim of freeing the Nation from corruption.

Many of us seem to believe the Lokpal will be another avatar Like Krishna or Rama who will come and eradicate the corruption! We seem to have forgotten that in spite of all avatars, the sin has remained unconquered. Even in Gita, God only promised to be re-born each time the Adharma gains prominence over Dharma, to defeat the same; but never to eradicate the Adharma itself. 

Jesus gave up his life.  We, as a nation, are seeking to give up our democratic governance system itself as a supreme sacrifice.  Would our efforts also end up being like that of Jesus, with ultimate failure to remove the sin of corruption from our systems?  

Jesus was God’s son.  Third day of his sacrifice, Jesus resurrected and was elevated directly to heaven.  So there was no great loss in the materialistic analysis. God made an effort, met only partial or no success; went back to heaven and the status quo remained.

But, if our sacrifice fails to bring in the expected result, would our present systems be resurrected? Or would by then the all powerful Lokpal be able to stifle any efforts to change the status quo that is surely in its favour?  

I don’t want to sound like a doomsday prophet.  I like to believe what we are seeing is only another stage in the Nation’s evolution and things will keep changing. But I just want to remind about the danger of knowingly walking into the trap of dictatorship (concentration of power in select few) because once we create the monster, ending it may not be as easy as the creation!

The efforts of God, in all religions, shows there is no permanent solution to the sins of human beings. It is in the nature of human beings to sin. What we can do is to reduce the opportunities for committing sin.  Take the case of corruption; even the ardent supporters are not claiming that Lokpal will be able to eradicate the corruption.  It can at the best improve investigations into reported corruption cases, ensure proper prosecution and hope the judiciary will punish the corrupt (remember, even death penalty has not removed the crime of murder).

Administrative reforms, simplifying the procedures, bringing transparency into governance, reducing the governance itself, are some of the measures that can be used to reduce corruption on the bribe takers’ side.  From the bribe givers’ side, it is value/moral education (as against mere religious education) and creating a public opinion in favour of honesty and integrity that might improve the situation.  But to expect complete cleanliness in our public affairs, even at the cost of supreme sacrifice, is going beyond the nature of human beings!

Managing Satisfaction to Maximise Happiness

A good part of our efforts, individual as well as collective, is aimed at maximising happiness. 

We all have finite time to live this one and only chance of life.  We all live and die.  So, what is that differentiates each one of us from others? If you analyse the people around you, you will easily find that the only differentiating factor in our lives is each person’s ability to affect the happiness, either positively or negatively.

Look at those people who are dead and gone but are still remembered.  Those people fall into two groups. The first group consist of those, who positively contributed to the happiness of the human kind; through social or political improvements, artworks, writings, inventions- to name a few. The other group consist of people who are remembered for their actions that affected happiness adversely.  The common thread in both groups is the impact they made on the happiness around.

Now look at the living individuals. Again what differentiates persons from others is the happiness they manage to achieve in their respective lives.  We often mistake this fact and consider various other factors as measures of achievement- like money, success, power, position etc.  We often forget the basic truth that none of these factors per se make life a happy experience.  They might add to the happiness but cannot be the sole reason for happiness.

I remember having read a story that goes somewhat like this (with due apologies and gratitude to the original author): 

A high profile ‘Investment Banker’, who went on a holiday to one of the islands, as celebration for closing a very remunerative financial deal, was appalled to see the way people were ‘wasting’ their productive time by doing almost nothing.  His ‘bill by minute philosophy’ was in complete contrast with the laidback lifestyle of the islanders. While he was relaxing in a beachside bar, he saw a small boat returning from the sea, with day’s catch.  He went near and saw the fish being offloaded from the boat and then being sold to the merchants.

The fisherman finished his job and headed straight to the bar. When he returned with his drinks, our banker decided to strike a conversation with him. Banker asked the fisherman as to how much he makes in a trip and Fisherman replied that on an average he makes about 500 bucks per trip that takes about 4 hours.  On being asked how many trips he makes to the sea in a day, fisherman replied that he makes only one trip a day.

The banker decided to do some pro bono strategy counselling to the fisherman. He then started advising to undertake at least 3 trips a day.  Then he advised the fisherman to purchase a refrigerated truck (with debt financing, of course) to take the catch from all the trips of the day to the nearby city, so that he can sell it at a much higher price, eliminating the middlemen.

He went on with his strategy. He said with all the additional money that he makes he can get more boats and employ more people to help him. Similarly, he can buy more trucks and take his catch to various cities, slowly expanding the network. Once the operations achieve a critical mass, then he can sell the business to some big company or investor and retire. That will eventually make the poor fisherman into a very rich man.

When the Banker finished his talk with all the enthusiasm for having devised a great foolproof strategy, the fisherman asked him, “What is the use making all that money? And what will I do after I retire?”

Banker: “You can buy a posh beachfront house and enjoy rest of your life”

Fisherman: “But I would still have nothing to do. In that large house, I will only feel bored”

Banker: “Oh, no. You can fasten a hammock on the beachfront. Relax in that hammock, with a mug of beer in your hand. You will be under no pressure at all, with enough money in your bank and all the time in the world”.

Fisherman: “But that is what I do even now. My house is not posh but it is enough for me and my wife and is on the beachfront. I have nothing much to do once I am done with my fishing trip in the morning.  Every day, I relax in this hammock with my beer, as I am doing now! Even after doing all that you say, I would still be doing exactly the same.”

The moral of the story is simple. One should know what makes one happy. The Fisherman in our story is happy.  But the Banker is struggling hard in order to reach a stage where he thinks he will eventually be happy.  Can he ever get as happy as the Fisherman? We do not know. Is the Banker deriving happiness from the present struggle itself? Will he be happier when he retires to the dream beachfront house, doing nothing? We do not have answers to all these questions. Neither are they important to us.

That brings us the more fundamental question; how can we be happy? Often we find happiness getting confused with pleasure and people spoiling their life in that confusion.  Happiness is enduring and different from the momentary pleasures (more about it in another post).

There is obviously no definite answer to the question as to how can we remain happy.  It depends on person to person.  The success is in finding out as to what is the thing that will make one happy.  For example, we have seen highly successful actors ending up as complete wrecks, chasing happiness, irrespective all their huge success in career.  We have also seen not so successful actors being very happy and contented in life, as they are doing what gives them happiness, i.e., acting, irrespective of their financial ‘failure’.

Often I have heard people wondering how human beings, surviving in urban slums or rural poverty, can be happy.  If you look at them, you realise that happiness is not connected with wealth or poverty either.

In my understanding, happiness is a state of mind that can be cultivated, irrespective of your surroundings or status.  Like one of my favourite quotes goes: “Two men looked out of prison bars; One saw mud, other saw stars”, it is not the prison cell that decides our happiness but what we choose to see!

I have also heard people saying that the best way to be happy is to be satisfied with what we have.  But, is that really so? No is the answer, according to me.

If one is completely satisfied with what one has, there is no desire or motivation to continue with the struggles of life.  Life without its struggles becomes truly boring and de-motivating. Therefore, while complete satisfaction in whatever one has may bring momentary happiness, in the case of normal human beings, that happiness is not likely to survive for long. After all, we are looking at maximising the happiness of our own and of others in our surroundings and not merely being satisfied with whatever little happiness we already have!

So, is the opposite true? Would being not satisfied bring happiness?  We all know the answer is again in the negative. The state of not being satisfied would make us chase our dreams all the while, never allowing us to be happy about our present realities.

What is the solution? In my opinion, it is simple. To maximise our happiness we need to be satisfied with what we do not have and not be satisfied with what we have.

We should not be satisfied with what we have; instead, we must constantly strive to make things better.  We must be realistic about what we have in terms of our abilities, assets, strengths and weaknesses. We, instead of being satisfied with what we have, must strive to improve them at all times.

At the same time, we must learn to be satisfied with what we do not have. Otherwise, we end up merely being jealous about those who have them and thereby waste our own positive energy in a useless frame of mind.  Let others have whatever they may have; it need not affect our happiness. 

Do not set benchmarks for your achievements against what you do not have or others may have.  Instead, begin from what you already have and slowly and constantly raise the bar, at your own comfortable pace, so that soon you are functioning just short of your own level of incompetence and employing your resources to the optimum level.

By following the above process, we will not only maximise our own happiness but also be in a position to increase the happiness quotient in our surroundings.

Our happiness is in our minds and it has nothing to do with others. But our struggle for maximising happiness might very well increase the happiness of others; be it in our family, society, nation or even entire humanity!

A Counter Appeal to Selvi J Jayalalithaa

Madam Jayalalithaa,

This has reference to the nationwide full page advertisements that your Government had issued yesterday, i.e., December 10, 2011, titled an ‘Appeal’, in your name and under your signature. 

I am one of those hapless Keralites, who are forced to travel outside our tiny State in search of employment (with the belief that, as an Indian, I have the constitutionally guaranteed right to work or settle in any part of India).  Thankfully, I am now in Mumbai and currently not targeted by any violent politicians or their goons, unlike my brothers and sisters who are now facing the music in your State.  I first thought your Appeal is addressed to those Keralites who are feeling threatened for their life in a State that is being governed by you as its Chief Minister. It was not so.

Then I thought you must be reassuring the people of Kerala, including people like me who are forced to stay out while leaving the family back home, since the ‘Appeal’ seems to have been published nationwide! But unfortunately, I found nothing reassuring for any of us in the whole page of the Newspaper.

If at all, I only felt more outraged and insulted by your ‘Appeal’. I will come to the reasons for that little later.  But let me explain the reasons for this reply through this post.  I have always found the Administration of your State too professional and efficient in dealing with Mullaperiyar. Therefore, I have the firm belief that your super-efficient Mullaperiyar Administration will bring this to your notice.  Second reason is that unlike you, I have no access to funds to issue full page advertisements in national newspapers.

Finally, unlike your Administration, the Administration of Kerala keeps committing blunders after blunders in the matter of Mullaperiyar.  Some of the reports even say that these blunders could be a result of the biggest back stabbing in the history, by our leaders, many of whom are allegedly been receiving favours from your State through some mysterious budgets in the name Mullaperiyar.  However, in the interest of fairness, I would discount those reports, until proved otherwise, and merely believe that those blunders were genuine naiveté or innate sense of fairness on our/their part.

But I cannot remain silent. I have to reply you. I have to use the only medium I have; hence this blog (with the belief that the message will reach you)!

Now, coming to your ‘Appeal’.  To know that it is an appeal addressed to the people of Kerala, one had to read till the last paragraph of the full page matter.  Until then, it sounded merely an ‘appeal’ to the Supreme Court or the Expert Committee (EC), listing out the legalities on why Kerala’s pleas must be rejected in toto.

Anyway, thank you for reassuring that ‘we are both committed to maintaining and cherishing cordial relations’.  I am glad that the last word of your appeal resonates with the first words of Kerala Chief Minister, when he said Kerala is looking for a solution that would ensure ‘Safety for Kerala and Water for Tamil Nadu’.  In fact what better way than ensuring safety for Kerala and water of Tamil Nadu, for maintaining and cherishing cordial relations!

However, I must admit (at the cost of annoying you perhaps) that rest of your Appeal did not show any intent towards maintaining and cherishing cordial relations.  It sounded adversary; it sounded accusatory.  

I discount the first 5 paragraphs of your appeal (that is half of the whole Appeal, actually!) as merely restating the history from a perspective that suits your case.  Enough has already been said in the public domain to counter many of those statements and it serves no purpose for any of us to revisit the blunders or even magnanimity of the past.

In the 6^th Paragraph of your appeal, you stated that “Thus it is amply clear that the dam is safe and adequate steps have been taken by Tamil Nadu to ensure its safety”. I don’t deny that your State has taken some measures to ensure the dam’s safety at the instance of a Supreme Court order, after a bitter legal battle.  But, a mere statement from you is not enough to assure the lakhs of people who are living under the threat of a disaster.  You have chosen not to give any findings by any scientific agencies in support of your assurance, even though studies undertaken at the behest of our own State Government had proved otherwise, in the past.

Again the lengthy 7^th Paragraph is history of the case between our two States.  Matter is before Supreme Court and merely restating that in an ‘Appeal’ serves no apparent purpose.  But I was mistaken; when I read your further paragraphs, it became amply clear that you are actually addressing the Supreme Court and its EC, rather than those who are affected by this issue. 

You chose to quote insignificant verbal questions/answers by Judges while hearing the case, yet you did not consider it necessary to state what is said by the same Judges after the hearing on these matters were completed. For example, you quoted an observation by a Bench “if every State in inter-state disputes sought enacting a legislation not to give effect to our judgement...”.  But you left unsaid that the same Court had passed final orders to the effect that ‘rising of FRL in Mullaperiyar is not an interstate water dispute and hence Supreme Court is competent to hear the case. The barring of Supreme Court in the case of interstate water issues as per Article 262 read with Section 11 of the Inter-State Water Disputes Act, 1956 is not applicable in this case’.  The very fact that the dispute is before Supreme Court and not before an Interstate water Dispute Tribunal is the proof for unique nature of the dispute, which you failed to address in your ‘Appeal’.

What you also left unsaid is the fact that all the previous orders in the dispute were issued on consideration of the contractual rights and obligations under the various agreements between the States alone and not on the aspects of safety of the people living downstream. In my humble opinion, what Hon’ble Court needs to first decide is the violation of the fundamental right to life, guaranteed under Article 21 of the Indian Constitution, of the people living downstream to a Dam that has survived more than 200 % of its projected life.

You went on to explain to us about the EC appointed by the Supreme Court. But, you left unsaid that your State had challenged even the appointment of this EC but the Hon’ble Court dismissed your application on 29^th March 2010 and directed the Union of India to form the EC before 30^th April 2010.  Even after that, your State chose to object to the examination of independent expert scientists of different IITs, who had advised State of Kerala on the danger to the Dam, before the EC.

Thereafter you proceeded to state why there is no risk as the Idukki dam is “designed to absorb the flood and to moderate flood level up to 4,00,000 cubic feet of water per second”.  Even conceding that you are right (though various study reports suggest otherwise), you are silent about the fate of 100,000 people living on the banks of River Periyar, for nearly 40 Kilometres, in case of a breach in the Mullaperiyar Dam, before the water finally settles down in Idukki dam.  I wouldn’t even dare to think about the effect, if the sudden rush of water from breach of Mullaperiyar Dam, along with all the debris that will carry with it, manages to endanger even Idukki dam; for the consequences will be beyond what my mind wants to even consider!

So, throughout your appeal you failed to state anything that is reassuring to us. Then you went on to insinuate that we are merely fools and are being tools in the hands of elements such a real estate mafia, vested interests, divisive forces, fear psychosis etc etc...  Why add this insult to injury, Madam?

Finally, before ending this counter-appeal to you, let me raise some issues which I am sure, you are already aware of.

You have failed to state any convincing reason to support your statement that “There is no valid reason to believe that the Mullai Periyar Dam is unsafe”. For us it is a matter of life and death and it would take more than a mere statement like that from you to reassure us that a Dam that was built using an outdated technology but have stood for more than double of its projected life is still safe and need no replacement!

Your Government is continuously evading even an official level talk to find an out of court settlement.  What are you worried about in talking? Can you reassure people concerned for their life, through mere legalities and technicalities?

What is your objection to a new Dam, apart from the unsubstantiated belief that the present Dam is safe? Your ‘Appeal’ completely fails to state that, if there is any. Kerala has committed before the Court and in public domain that it will not stop providing water to Tamil Nadu.  Then, why this resistance to a new Dam?

Is it about the cost of a new Dam? Wouldn’t it be better to spend money on a new Dam than spending so much money on these full page advertisements that serve no purpose? Even assuming that your State does not want to spend money on this, hasn’t State of Kerala committed to spend the necessary money for the new Dam?

Is it about distrust that Kerala might refuse you water or control over the flow, after a new dam is made? Is that is so, state it upfront so that we can deal with it. You will have our (I mean ordinary Keralites) support in ensuring water supply to a region that has no other source of water. Tamil people are not merely neighbours for us but often our closest friends and relatives! But don’t depend on our support alone; go ahead and seek constitutional or legal safeguards to ensure continued supply of water to your people and land.

Finally, have you considered the after-effect of a potential disaster in Mullaperiyar Dam, even if that is remote? Do you think in such a case, there will be any more ‘cordial relations’ left between us? Do you think any government or even court will be able to force continued supply of water to Tamil Nadu, if such a disaster strikes people of Kerala?

Please understand that the stakes for both of us are enormous in this issue.  We will win or lose it all together.  If your advisors are saying that you can win this by defeating people of Kerala, then I can only pity them for their lack of understanding of the human nature! 

Please make it a win-win for all of us.  Let us build a new Dam without any further delay and ensure continued supply of water to Tamil Nadu. I am sure, even your misplaced optimism will not tell you that this Dam, from which reportedly 30 tons of surki is lost every year, will stand firm for what is remaining of the 999 years of the original lease?!

Madam, we don’t need preaching. We need action at the earliest.  You can protect all your interests, but concede our right to safety!

With the hope that you will see logic in the slogan ‘Water for Tamil Nadu and Safety for Kerala’ and seize this opportunity to really show the much needed commitment to ‘maintaining and cherishing our cordial relations’. 

Internet and Freedom of Expression- Other Side of the Coin

I believe that Freedom of Speech and Expression should not be dependent on the issue at hand or individuals involved.  It has to be consistent, irrespective of whether that consistency is convenient or not.  I also believe that Freedom of speech and Expression, like all other freedoms, should not be absolute.  If the State and/or Society have to guarantee such freedoms for all, it is imperative that these freedoms be subjected to reasonable restrictions as per the acceptable norms of society and existing laws of the State.

(For a detailed discussion on the question whether Freedom of Expression is absolute or not, you may refer to my earlier posts; ‘Artistic Freedom- Is it Absolute?’  http://confused-ambadi.blogspot.com/2011/06/artistic-freedom-is-it-absolute.html and ‘Addendum to the Blog on Artistic Freedom –Is it Absolute?’ http://confused-ambadi.blogspot.com/2011/06/addendum-to-blog-on-artistic-freedom-is.html )

Just to make my position on the issue clear, let me quote from the above referred posts:

“Between the two extreme views above (one of absolute and unfettered freedom and the other of absolute restriction based on censorship and controls), we have to find a line which has balance of convenience, even if not the ideal, so that we can ensure maximum social harmony with minimum interference in artistic freedom. It is towards this end that I suggested self-restraint as the method, wherein the artist himself acts as any prudent artist would act in the given situation. I am sure there are thousands of ways to express one’s creativity and ideas without hurting other normal people’s sentiments.”

“Self-discipline or 'Swatantrata' has been advocated in Indian culture from ancient times. ‘Swa’ means self; ‘Tantra’ means method, discipline, or rules. So Swatantrata means acting according to our own methods or rules, which is the ideal type of 'freedom'” (Comment by Manju Joglekar)

To paraphrase, Freedom of expression is not absolute. But, external censorship is not desirable as that can stifle genuine speech and expression of ideas. Therefore, we as a society must ensure that the need for external control is brought down to a minimum by exercising self discipline and being responsible for what we express or speak.

What I said above is the ideal situation. However, like many other aspects of human life, even this ideal is difficult to attain and therefore, some level of external control has always been the norm in civilised societies.  Laws of all the modern countries prescribe certain outer limits for the freedom of expression beyond which the act gets attached with criminal or civil liability.  This is true even for India.

Legal position in India

In India, Freedom of Speech and Expression has an exalted position as one of the Fundamental Rights guaranteed under the Constitution. Clauses (1) (a) and (2) of Article 19 of the Constitution prescribe the law as follows:

Article 19. Protection of certain rights regarding freedom of speech etc

(1)        All citizens shall have the right

(a)  to freedom of speech and expression; ......

(2)       Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Therefore, Constitution on the one hand gives freedom of speech and expression to all citizens and on the other hand, validates laws that impose reasonable restrictions on the exercise of the right.  Please note that the permissible grounds for imposing such reasonable restrictions include public order, decency, morality or in relation to defamation or incitement to an offence, among others.  This is to ensure that the unbridled freedom is not misused by unscrupulous elements to create social unrest or to negate the right of others to have privacy, decency and morality.

Now that the Constitutional provisions on the Freedom of Expression and reasonable restrictions thereon are clear, let us look at the criminal aspects of such expressions.

Section 499 of Indian Penal Code

This section prescribes the criminal law relating to Defamation as follows:

“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person”

Having established the basic principle, the Section further exempts the following situations, so as to ensure dissemination of information which is in good faith and for public good are not affected by it:

“First Exception.—Imputation of truth which public good requires to be made or published.—It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

 Second Exception.—Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever re­specting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

 Third Exception.—Conduct of any person touching any public question.—It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.”

So, the criminal law of the country is also very clear. Unless a defaming expression can be proved, as a question of fact, as falling under any of the above exceptions, it will be a crime and punishable under Section 500 of the Act.

Civil Liability

Under the law of Torts applicable to libel or slander an aggrieved person can file a civil suit for damages against any person publishing any material that destroys his reputation.  Two high profile cases of recent times are, one in which Dr Subramanian Swamy was ordered to pay monetary compensation to Mr Ram Jethmalani and the other ongoing case where TimeNow channel was asked to pay monetary compensation to a retired judge of the Supreme Court.  

Internet and Improper Content

As you may have noted, none of the above legal provisions exempt Internet from its purview. There is no impunity for the internet users.  Merely because I am logged on to an Internet, I do not cease to be subject to the law of the land.

But if we scan through the social media like Twitter or Facebook or even many blog pages, we will be appalled at the gross level of indecent and defamatory contents.  This is not to say, all the content on these sites are bad. I can vouch for the usefulness of the majority of contents, I myself being an active member of some of these platforms, gaining tremendous advantage through access to information.

However, should that utility and benefits of these platforms be allowed to be misused as an excuse by criminal and uncivil elements while spreading their venomous and damaging content?  We all know how terror organisations like Al Qaida and others have been using Internet as a means of disseminating incendiary propaganda throughout the world!  We have heard how bomb making is made child’s play by Internet sites that provide all necessary guidance for the same.  We know how Internet based communication systems were used by the terror masters to guide their foot soldiers during terror attacks. We know how Internet is used to create an elaborate network of paedophiles for sharing child pornography across the world.

Like the real world out there, in Internet too, angels do not have wings or devils the tails!

Many of us may be outraged at the efforts of State to curb the absolute freedom on Net because you and I are exercising that freedom.  When a TV Channel or a News Paper is subjected to same level of legal restrictions, we are not so much concerned because that is affecting those evil journos and editors, whom many of us any way subject to filthy abuse online, on a day to day basis.

However, Law cannot or does not make such distinctions.  It is as much applicable to the Internet content as to the published contents on print and broadcasting media. If at all, the difference only arises due to the technological peculiarities of the medium and not due to any special status!

Peculiarities of Internet Contents

Let us look at what makes the Internet content special.  Internet does not have borders.  It allows fairly anonymous posting of contents from any part of the world.  Its reach is instantaneous.  Unlike in the print media etc, where dissemination of an offending material can be stopped through court injunction etc, in Internet, once the content is posted the dissemination cannot be stopped until it is too late.

In the real world, editors exercise editorial control over what appears in their publication.  Therefore, anything inappropriate appearing in their medium the editors and publishers are equally liable.  However, this is not the case with Internet. The service providers who make the platform available would find it humanly impossible to screen each and every contents being uploaded on their site, due to the sheer volume.   That means, service providers do not usually apply their mind into what appears on their sites and therefore, holding them responsible for such contents will not only cause great harm to them but also will destroy the free flow of information on the Internet.

In order to address these issues, as well as new forms of offences peculiar to Internet, India enacted the Information Technology Act, 2000.  Various provisions of this Act deal with specific offences related to Internet. Lets us quote some of the offences relevant to our discussion.

Relevant Provisions of the Information Technology Act, 2000

“66A. Punishment for sending offensive messages through communication service, etc..- Any person who sends, by means of a computer resource or a communication device,-

(a)  any information that is grossly offensive or has menacing character; or

(b)  any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

(c)  any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to tthree years and with fine.

Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.”

66E. Punishment for violation of privacy.- Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both

66F. Punishment for cyber terrorism.- (1) Whoever,-

(A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by –

(i) denying or cause the denial of access to any person authorized to access computer resource; or

(ii) attempting to penetrate or access a computer resource without authorisation or exceeding authorized access; or

(iii) introducing or causing to introduce any Computer Contaminant and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure specified under section 70, or

(B) knowingly or intentionally penetrates or accesses a computer resource without authorization or exceeding authorized access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of the security of the State or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.

(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life’

67. Punishment for publishing or transmitting obscene material in electronic form.- Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals 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, shall be punished on first conviction with imprisonment of either description for a term which may extend to two three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.

67A. Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form. - Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

67B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.- Whoever,-

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or

(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or

(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or

(d) facilitates abusing children online or

(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

From the above Sections of the IT Act, it is very clear that Indian Law, as it stands today, makes it an offence to disseminate such contents online.  By any stretch of interpretation, no one can say that these sections create unreasonable restrictions on Freedom of Expression.  What is an offence off line is expressly made an offence online as well.  Even if someone thinks so, the remedy is to demand change in the law than blame someone who is trying to implement it. 

However, due to some false sense of anonymity (establishing the identity of a person is not that difficult in most cases) or simple ignorance, lot of us take the Internet for granted and do not think twice before posting any offensive material or comments that might hurt national security, public order, decency or morality or being defamatory to individuals or organisations.  Many of the otherwise wise men and women do not consider it as an offence to post or to disseminate through resending such posts, containing highly defamatory or offensive materials, online.

As we discussed at the beginning of this section, often, service providers who hosts the offensive material are not cognizant of the contents being posted.  Therefore we cannot subject them to the same rigours as publishers or editors of a book or news paper.  This issue has also been fairly dealt with, by the IT Act.  Section 79 of the Act deals with this aspect:

79. Exemption from liability of intermediary in certain cases. 

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link hosted by him.

(2) The provisions of sub-section (1) shall apply if-

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored; or

(b) the intermediary does not-

        (i) initiate the transmission,

        (ii) select the receiver of the transmission, and

        (iii) select or modify the information contained in the transmission

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf

(3) The provisions of sub-section (1) shall not apply if:

(a) the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Explanation: For the purpose of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary.

So, the section specifically exempts the service providers (intermediary) from liability for third party contents hosted by them, provided they have not actively contributed or conspired in making such an offensive content to be posted there.  For example, If I post a tweet containing defamatory reference to the manner in which an individual’s mother had managed to conceive him (we get to see many such tweets every day, though much more direct in their approach!) or accusing a person of being an idiot or corrupt etc without any evidence or proof to back it up, I can be prosecuted for the offence of defamation and/or offences under IT Act, but the Twitter itself will not be made liable for hosting/publishing that tweet.

However, the above exemption is subject to the condition that ‘the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf’.

Therefore, Central Government is entitled to prescribe such guidelines as it may deem fit to prevent publication of offensive materials through Internet and the service providers shall be bound to observe those guidelines.  Any failure to do so will make the service providers equally responsible for an offence committed through their platform.

Same will be the case, if the service provider refuses to take down an offensive content when a complaint is made to it, through proper authority or reported by members of general public.  Failure to do so will amount to conniving in publication of the offensive material.  It would also amount to not exercising due diligence while discharging one’s duties.

This being the law of the land, I do not understand the outcry over social media on a request made by the Minister for Information & Technology, Mr Kapil Sibal, to the major service providers for social media, like Google, Microsoft, Facebook  and Twitter!  As per news reports, the Minister asked them to institute measures to ensure self regulation on the contents being published on their sites.  This amounts to merely asking them to follow the fist condition of exercising due diligence by them.  Therefore that was perfectly legal and within the duties entrusted upon him by the IT Act.   If at all, the kind of Hash tags and filthy abuses bestowed upon the Minister only reinforces the need to ensure self discipline or enforced discipline over social media.  Expressing dissent can be done in a more issue based and civilised manner than subjecting the person to abuse and ridicule.

Conclusion

There is no legal sanction for the concept of absolute freedom of expression over Internet.   Neither there is any moral sanction for absolute freedom that extends to using derogatory or abusive language against any individual, community or religion.  Right to criticise does not include right to abuse. While learning the use of powerful social media, we must also learn the duties and responsibilities associated with it. Our right to post content is subject to the same laws that prevent a paedophile from posting child pornography on Internet or a journalist publishing a defamatory story in a news paper!

While I have consciously tried to stay away from the politics while dealing with this subject, I cannot but point out the danger in being selective while supporting some bans and opposing other attempts to regulate; merely on the basis of one’s political convictions.  Today, it may be morphed picture of Sonia Gandhi and Manmohan Singh.  Tomorrow, it could well be that of Sushma Swaraj and LK Advani or God, Jesus and Allah or even worse, yours or mine!  Parties and individuals may come and go in a democracy, but the principle of law should not be tampered with. 

Finally, criminal law and regulations are in the statute books to deal with aberrations and not general public.  Merely because there is a law of defamation you and I do not end up in jails; at the same time, we cannot demand removal of law itself since it is needed for use when some criminal or other commits such an offence.  Provisions to deal with criminal activities on Internet should not be opposed merely because you and I intend to use Internet for expressing our genuine concerns/ideas.  We must be cognizant of the realities that there are elements who misuse the Internet for spreading offensive material and we need the law and regulations to effectively deal with them.

PS: Apologies for the long post.. But I thought quoting the relevant Sections of law here is a must for reference !

Way to Predict Future!

While on my morning walk, I noticed a profound quote on the beautiful t-shirt of a beautiful lady walking in front of me.  It read, “The best way to predict the future is to invent it”.  

I was really impressed by the quote. It made me think. (Don’t ask me if I was impressed by the t-shirt or the lady too; I won’t answer that!)

When I got back from the walk, I searched for the quote on the net and found that this quote is attributed to an American computer scientist named, Alan Curtis Kay.   I also found that an even better version of this quote came from legendary Peter Drucker who is quoted as saying, “The Best way to predict the future is to create it”.

Since invention is associated with scientists and innovators, for normal people like me the Drucker version is more appealing.  Creation is something that we all do, in some form or other.   If we care to analyse with the help of hindsight, we always find that our actions of yesterday were the cause for the results of today.  While some of us may choose to be modest and give credit to God, Guru, Star or some other entity for whatever happens; if we objectively look at those happenings we will know that they happened only due to our own action or inaction in the past.

This lesson is very important for us Indians, who are often guided by many of those so called sciences that predict future. There are multiple ways for us to ‘know’ our future in advance- such as, astrology, palmistry, face reading, cards reading etc.  It surprises me that even rats and parrots have the capacity to read and let us know our future!

While it can be fun listening to someone speaking about you, by reading your horoscope or palm, it is altogether a different matter to let the words of those people guide you in your life.  The danger lies in the fact that those words can easily become self-fulfilling prophecy, if we take them seriously. Once we believe in those words we are likely to surrender to the ‘inevitable’ and guide our own actions, knowingly or unknowingly, towards fulfilling those very words.  But if you ignore or challenge the words and carry on with your own plans, in all likelihood you will achieve what you planned and strived for; and not what those predictions told you.

Let me illustrate this with an example from my own life.  When we decided that it was time for us to take up construction of a new home (the dream for any typical Keralite), we considered only the financial aspects like the source of funding, EMIs etc.  Location, facilities, structure etc for the new home were already clear in our minds. 

However, when we started searching for a suitable plot that meets all our requirements, some of my family members pressurised my wife to seek advice from an astrologer.  Since they already know my views on such matters, they kept me in the dark about this.  My wife and her brother visited this famous and well respected astrologer (who happens to be a teacher and a colleague of my brother-in-law) and presented the problem.

After consulting all the relevant stars, planets and comets, he declared with utmost conviction that the time was not ripe for us to begin the work for a new home.  He said even if we start the project, it will not get completed for many years!

This revelation unnerved my family, including my wife.  They had actually hoped to hear something positive and were scared to go ahead in spite of this negative prediction.  Finally, the matter was brought to my attention and I was asked not to proceed with the project for at least another year.  I had by then made up my mind, arranged sale of a plot that I owned in Bangalore and tied up remaining funds that would be necessary to complete the house.  There was no way that some prediction by somebody would stop me on the track.  I reassured my wife, who was little nervous about the whole thing and was repenting having visited the astrologer at all.  Though with hesitation, she agreed to go along with me, whatever the future consequences might be.

Then we found a suitable plot that was meeting all our requirements.  We went ahead and bought it; arranged balance funding by way of loans from the bank and took up the construction work.  I was conscious of the fact that any setbacks or delay in construction would be blamed on my arrogance and irreverence!  Therefore, I kept up the pressure on all. 

We faced all the usual delays and hiccups, mainly on account of shortage of labour; but still managed to finish the entire work in 19 months, pretty fast by the local standards.   Our dream home came into existence, not on the terms of any astrologer but on my terms! Our sweet revenge was when we invited that astrologer to Ambadi, for the housewarming.

Now look at our politicians.  Most of them consult their personal battery of astrologers and Gurus all the time. Yet they are not able to prevent the future that is a direct result of their past actions, with so many of them losing power or even ending up in jails for their misdeeds while in power.

Let me now discuss another example that is close to my heart now.  Consider the burning Mullaperiyar issue.  Can we predict what will happen to the 110 year old dam that was once considered to be a technological marvel but today is nothing but a nightmare for those who are living downstream?  It might give away in 2 years or 20 years or 50 years. No one can predict for sure, except that we may be able to do some estimations through simulation etc. 

But we can definitely create the future.  Change the dam that has lived for more than twice its projected life.  Construct a new dam that takes into account the increased risks associated with the earthquake prone area. By that, we can create a safe and peaceful future that is full of goodwill between the people of two states - with safety for Kerala and water for Tamil Nadu.

Whether in constructing a new home or replacing an old dam, the need is to believe in your ability and take proactive actions to achieve what your consider is in the best interests, within the given resources and constrains. 

Do not fall for the predictions based on pseudo-sciences thriving all around us.  Beware of the numerous agents out there, waiting to capitalise on your uncertainties and concerns about the future. Day after day, we get to hear the stories of cheating by those unscrupulous elements in our society.

It serves no purpose trying to know the future, instead be ready to work hard and create one!