Delhi HC Judge, Justice Suresh Kait’s recent ‘threat’ in relation to imposing a ban on social networking sites  has attracted substantial criticism. The civil judge instructed these sites to remove any “anti-religious” or “anti-social” contents by February 6, 2012 even while the media and public kicks up a hornet’s nest on the issue.

The matter stemmed from the Government filing inter alia, the following charges against 21 parties:

• Section 292, Indian Penal Code (IPC): penalizing the sale, possession, exhibition, distribution, circulation etc of representations that appeal to the prurient interest and tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

• Section 153 A IPC: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

• Section 153B IPC: Publishing imputations, assertions prejudicial to national-integration.

• Section 295A IPC: punish deliberate or malicious intent to insults or attempt to insult the religious sentiments of the citizens of India by words, either spoken or written, or by signs or by visible representations or otherwise.

Thus have Indian Courts made an attempt to leash the digital dragons of the internet with the shackles of penal provisions. What remains to be seen is how effective these provisions can be, when applied on subjects not contemplated by the drafters of the Code for curbing freedom of speech and expression on the internet.

There are two points that I’d like to make through this post.

One, my disapproval of the charges framed, which I believe is due to the ambiguity in the IPC. These ambiguities make themselves apparent when the Indian position is compared to that in the United States. The second is, that maintaining editorial control over content posted on such sites cannot be filtered before publication.

An examination of the laws raise the question: how do you define a‘publisher’? To make understanding the legal soundness of the charges easy, one must juxtapose these charges with the relevant provisions of United States law, which is more specific to cyber crime.

For the sake of brevity, the position of US law can be thus briefly summarized: it is clear that sites like Facebook are distributors, similar to booksellers, news vendors and libraries, and thus have no liability for libel unless they are negligent. They could be considered as publishers by the fact that they have editorial control over their publication (here, website or online forum).

How did this position evolve?

Section 230 of the Communications Decency Act of 1996 (CDA) protects providers of an interactive computer services such as blogs, websites, online forums etc immunity from tort liability so long as such information is provided by a third party. Section 230 does not allow such providers to be treated as publishers. In Cubby Inc. v. CompuServe Inc. (1991) the defence of ISPs being a distributor, not publisher was accepted and CompuServe was classified as a functional equivalent of a lending library. However the decision went in the opposite direction in Stratton Oakmount v. Prodigy (1995) because the site had content guidelines and an enforcement mechanism thus exercising editorial control over its content. The US District Court in Zeran v. AOL (1997) protected AOL in accordance to the rules in section 230 of CDA, since the information posted was by a third party. The position became clearer in Lunney v. Prodigy Services Company Opinion (1999) wherein the Court of Appeals held that it was not justified to impose a duty on ISPs to “employ a process for verification of the bona fides.” However the recent case of Finkel v. Facebook (2009) made the position in this context clearer. It was held that “there was no claim Facebook had any hand in creating the allegedly defamatory content,” although some of its users had. The Court rejected the plaintiff’s allegation that Facebook took an ownership interest in the private group’s messages.

It is now appropriate to examine the charges filed by the Government. It is necessary that the charges be examined ‘through the web’ of the Information Technology Act, 2000. Despite that no provision of the IT Act is a perfect fit into the situation like the CDA of the United States, s. 66A of the IT Act penalizes sending of any content which is of offensive nature or menacing character. By s. 69A (1) the Central Government can compel social networking sites to block access to their contents if they are likely to affect the sovereignty, integrity, defence, security of the country and friendly relationship with foreign states or if they constitute incitement to an offence. Any failure on the part of the ISP can attract prosecution as co accused. Thus, in a way they have a duty to remain duly diligent about their content.

How realistic is that, though? Consider the facts. There are billions of users of such sites. Those billions of users post several gigabytes of data every minute. Given this immense flow of traffic, it is humanely impossible to filter or monitor everything posted before it is published. The automated filter on such sites is incapable of filtering defamatory content as such matter is contextual in nature. Google issued a statement saying that they have a mechanism of taking down content that is illegal as per the local law. However, if the matter is legal but controversial, peoples’ differing views must be respected. In addition, when certain content is reported by other users as unacceptable, the content is taken down.

The crux of the matter is: the charges filed by the Government are ultimately  ambiguous, as the IPC has not been duly amended as per the IT Act, and the shortcomings of the IT Act do not make it clear if online ‘publication’ means ‘circulation’. Bennett Coleman & Co. v. Union of India held that that ‘publication means dissemination and circulation’, but it is not yet clear if the term publication includes circulation of information in electronic form. Thus, ‘publication’ needs to be defined in the perspective of the IT Act and charges have to be framed accordingly.

This brings us to another aspect pertaining to intention or a guilty mind. It is relevant to note that, charges under s. 153A and 295A require an essential component of mens rea which cannot be proved against the service provider since it is the user who has generated the information, not the service provider. Moreover, the service provider can be prosecuted as co accused and the entire responsibility of the content cannot be imputed to them. The third party generating the defamatory matter must be included as a party too.

It is thus clear that India needs laws like the CDA which not only lay down the liabilities of the service provider with clarity, but also are at par with the technological developments unlike the IPC. I believe that certain provisions in the IPC are obsolete and cannot be saved even if constructed harmoniously with the IT Act. Besides, concern about monitoring and filtering content do not hold good due to practical difficulties which cannot be completely overcome.

We’re all too old to be told how important free speech is. Free views and thinking is the very basis of a democracy; it stems from lack of fear and paves way for development of a mature and tolerant society. According to The Living Internet, the internet is a world community and no community’s standards can govern the type of speech permissible on it. Our Government needs to realize that network neutrality is the call of a free society. It requires all information to be treated equally, without censorship, blocking or delay. However, censorship must be imposed only when the content meets certain criteria. The first few bits that we had read about our Constitution included Article 19 (1) (g). No doubt, 19 (2) spoke about restrictions, but it must be noted that it spoke of ‘reasonable restrictions’. Censoring or blocking speech on the internet is in no way reasonable as it is an attempt to choke free speech. There is no doubt that freedom of speech cannot excuse immoral, defamatory, blasphemous or seditious content. But there is no excuse for killing speech before dissemination. Thus, it is unjust on the part of the High Court to demand social networking sites to regulate their content even before it is published. Furthermore, it is inconceivable for the Court to ban social networking sites in the country. After all, man is a social animal.

The author, Uma Lohray is the Co Manager of Yours Legally and a student of Gujarat National Law University. Contact her at uma.lohray@gmail.com or leave a comment.

Three hundred and twenty one years later for eight-year-old Rakesh Bardhan, it is protest time. Decked out in a black T-shirt and a matching handkerchief wrapped around his head, he is off to join hundreds of farmers, laborers and fishermen standing between a generations-old way of life and India’s biggest single foreign direct investment. He joins the local people who are protesting against the planned construction of a $12 billion (7.5 billion pounds) steel mill by South Korea’s POSCO in the eastern state of Odisha.[i]Available reports indicate that more than 21 million people are internally displaced due to development projects in India.[ii] The 116 year old colonial Land Acquisition Act 1894 (LA 1894) has provided an impasse for this kind of development induced land acquisitions[iii] across the nation. But recently, large tracts of land have been acquired in rural parts of the country in the name of development and transferred to private entrepreneurs, who have utilized the same for the construction of multi-storied complexes, commercial centers and for setting up industrial units.[iv] The peasant struggle in Singur and Nandigram and the agitation centered around the village of Bhatta Parsaul at Uttar Pradesh last year have marred the land acquisition scene in India.

Thus on 7^th September 2011, was introduced in the Lok Sabha the 70-page new Land Acquisition Rehabilitation and Resettlement Bill 2011. ‘It is in the political context of Rahul Gandhi’s padyatra (in UP) this Bill has been brought. It is a political response to a political problem’, asserted the Rural Development Minister Jairam Ramesh addressing a press conference after introducing the Bill in the Lok Sabha.[v]

Closely based on the rec­ommendations of the working group of the National Advisory Council (NAC 2011), the LARR Bill visualizes a perfect land market for unrestrained urbanization and industrialization. It takes into account land acquisition as well as provides for reha­bilitation and resettlement (R&R) for all domain acquisitions as well as private purchases of over 100 acres in rural areas and 50 acres in urban areas along with some other benefits. Now, the standing committee is into the time taking process of taking views of the state governments after the government failed to pass the bill at the end of the winter session.

But unfortunately, this effort of the government to resolve some of these policy loopholes in the old act has some infirmities. In the succeeding paragraphs an attempt has been made to point out two of the major defects of the bill.

PUBLIC PURPOSE:

“Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”

- John Rawls

Clause 2 of the bill mandates that land acquisition under this Act shall not be undertaken to any other purpose except for governmental use and public purpose.[vi] This act provides for acquisition of land for companies[vii], for which at least 80 per cent[viii] of the project affected people have given their consent through a prior informed process; provided that where a private company after having purchased part of the land needed for a project, for public purpose, seeks the intervention of the appropriate government to acquire the balance of the land it shall be bound by rehabilitation and resettlement provisions of this Act for the land already acquired through private negotiations and it shall be bound by all provisions of this Act for the balance area sought to be acquired.[ix] Thus it appears that the provision for acquisition of land for private companies for public purpose can be really misused. The draft bill fails to clarify as to how and what kind of public purposes private companies could serve.

If a government acquires a piece of land for public purpose, the project on such a land is meant for the society. In no case can these kinds of units be considered as capital gatherers. Private companies, on the other hand invest only with the only incentive of accumulating capital. The proposal also makes it mandatory to obtain consent from 80 per cent of the affected people before any acquisition notice is issued; thus significantly reducing the chances of forcible acquisitions.[x] In spite of this provision the new bill fails to answer what makes a purpose “useful to general public welfare”.   Let us take the example of a group of 100 people. If 90 of the 100 people want to eat ice-cream, does eating ice-cream become a public purpose? On the other hand, if 10 out of the 100 people live far from civilization and do not have any access to toilets, though it is a very private matter for a small number of population, this would make a good case of a public purpose. Perhaps we need a thicker definition of a public purpose which looks at a purpose to be public not solely in terms of the number of people affected but in the larger context of morality and socio-political situations.[xi] Moreover, the consent of the project affected families doesn’t count when Government acquires land for its own use, hold and control.

The Vallarpadam and the KINFRA land acquisition destroyed large wetlands, paddy fields, river and backwater in the name of public purpose. Thus, the pursuit of exploiting the state’s natural resources to attain the zenith of urban development incurs a cognitive and ecological cost along with intergenerational inequity.  Unfortunately, the Social Impact Assessment[xii] report as detailed in the policy is limited only to socio-economic and institutional impacts. What is missing is a multi-impact assessment, including environmental impacts.

Recently, in ‘Dev Sharan and Ors. V. State of U.P. and Ors’, (2011) 4 SCC 769 the apex court clarified that public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State and for benefit to the largest number of people. It has to be consistent with the constitutional ethos and especially the chapter under Fundamental Rights and also the Directive Principles.

COMPENSATION, REHABILITATION AND RESETTLEMENT:

In the words of the famous Ralph Waldo Emerson, ‘the first farmer was the first man, and all historic nobility rests on possession and use of land’. The LARR Bill doesn’t provide for ‘land for land’ compensation instead it lays down a one-time compensation amount. The case of SC/ST land losers is an exception as the bill proposes “2.5 acres of land or extent of land lost to each family in every project” and “in case of irrigation project 1 acre in the command area.”[xiii] The average market value linked compensation[xiv] is also unsuitable in a country like India where most parts of rural India, a land market is non-existent. Very few land transactions happen at the scale of villages, even in the supposedly active land market of Bengal (Bardhan, et al 2011)…. Of the transactions that happen, significant proportions are in the form of common trend of lowering the transaction price in order to avoid high stamp duty.[xv]Moreover, the owner will receive only 20% of the increase in value on any subsequent transfer, and that too only if no development is done on the land at all. In the case of “temporary occupation”, this will be settled through a process of “negotiation” – without even any floor value specified – and then the land can be permanently acquired if it is not fit for its “original use.”[xvi] Lastly, the bill doesn’t protect those affected by the project but only those “affected by the acquisition”[xvii]. Thus, people affected by transfer of government or common property or forest land for any project will receive no R&R. All attempts at acquiring land for manufacturing, real estate and infrastructure development will also have to encounter enormous litigation as the LARR bill has some irksome features like paying annual payments to original owners for the next 20 years; identifying and paying all those who are affected by the acquisition that would include landless workers; paying 10 per cent of capital gains to the original owners for the next 10 years; and ensuring the development of basic facilities in the acquired areas which may not obtain in even the most developed rural regions of the country.

There are times in the history of a nation when its destiny turns a page. This is that defining moment. Indians are transcending the traditional hurdles of poverty and underdevelopment and are embracing the new world of development and prosperity. What is required at this point of time is a metamorphosis in the way the state undertakes land acquisition in the light of a socialistic pro-people governance .It is time to break the logjam in the ongoing land acquisition impasse.