Shiv Sena's Orkut Campaign: The Limits to Freedom of Expression in an Intolerant India

Introduction: Freedom of Expression in the Indian Blogosphere

The Indian blogosphere is abuzz with discussions on freedom of expression after the Supreme Court refused to throw out Shiv Sena's defamation case against 19 year old computer science student Ajith D (TOI).

However, the Indian blogosphere's reactions to the controversy are mostly based on reports on the incident in Indian media and the quality of this reporting has been very mediocre, with few details and little background information. As a result, bloggers are reacting to incomplete information. As a result, bloggers are reacting to incomplete information.

So, before I do a roundup of the Indian blogosphere's reactions to the story and share my own views, let me first present the basic facts.

Shiv Sena's Tradition of Violent Protests

Let's start with Shiv Sena itself. Shiv Sena is a far right political party in Maharashtra that built a strong base amongst the Marathi community in the sixties based on its militant ideology that Maharashtra belonged to the Marathi community and migrants from other Indian states should be thrown out. Starting from the mid-seventies, the Shiv Sena shifted its focus to a strong pro-Hindutva (and anti-Muslim) ideology, a shift that solidified in the mid nineties, when it became an integral part of right wing alliance led by the Bharatiya Janata Party.

The Shiv Sena has often been accused of being involved in coordinated political violence against against non-Marathis and non-Hindus. It is widely acknowledged that Shiv Sena leader Bal Thackery, who is revered amongst its supporters, has been instrumental in inciting such violence on many occasions. The Shiv Sena also has a long and well-documented history of violent protests against journalists, writers and artists who speak against its extremist ideologies (see BBC 1, BBC 2, BBC 3, BBC 4, NYT 1, NYT 2, NYT 3, NYT 4, Guardian 1, Guardian 2).

It's important that we look at Shiv Sena's ire against Orkut in the context of its long history of ideological intolerance and violent protests.

Shiv Sena's Unholy Nexus With Orkut

The story started in November 2006, when Shiv Sena activists stumbled across an anti-Shivaji community on Orkut. Shivaji is a 16th century Maratha warrior, who is revered by the Marathi community. Pune police asked cyber cafe owners to block the anti-Shivaji community after violence by Shiv Sena. A public interest litigation was also filed in Bombay High Court to ban Orkut for hosting the anti-Shivaji community (TOI 1, TOI 2, Rediff 1, Rediff 2, NDTV, Financial Express).

In January 2007, the Maharashtra government requested the Computer Emergency Response Team (CERT-In), a Delhi-based regulatory body under the Ministry of Information and Technology, to remove the offensive content. According to Indian law, the CERT is responsible for investigating requests to block websites from notified officers of the Union government or the state governments. If it finds the website objectionable, it communicate its decision to the licensing and regulations cell of the department of telecommunications for passing the order to the internet service providers to block the website (Indian Express, Live Mint).

The Shiv Sena also asked its supporters to flag these communities on Orkut, so that they could be banned (Orkut discussion thread 1, Orkut discussion thread 2). This resulted in a flagging war on Orkut, where users who were part of pro-Sena and anti-Sena communities flagged each other's communities. For a short while, many pro-Sena and anti-Sena communities were banned by Google, but many of them were quickly reinstated (Orkut discussion thread).

The Shiv Sena also sent letters to Google and internet service providers in India to block these communities and even met up with Google officials, along with Maharashtra government and Mumbai police officials.

In January 2007, Google decided to cooperate with the Mumbai police and instituted an informal arrangement called the Priority Reporting Tool which enabled Mumbai police to directly report objectionable content to Google and also ask it for details of IP addresses and service providers. Based on the recommendation of Mumbai Police, Google deleted communities against Shivaji, Bal Thackeray and dalit leader B R Ambedkar (TOI, IHT, Indian Express).

However, even as Google banned some communities that contained defamatory content, it initially refused to ban several other communities that were against Shiv Sena's leaders or ideologies. As a result, Abhijit Phanse, the president of Bharatiya Vidyarthi Sena, the student wing of Shiv Sena, took matters in his own hands and led a violent campaign against Orkut.

In May 2007, the Sena sent letters to internet cafes threatening attacks against their establishments, if they didn't stop their customers from accessing these Orkut communities. In June 2006, it followed up on its threats by ransacking several internet cafes in Mumbai and physically abusing cafe owners and customers. The Mumbai police also instructed internet cafe owners in Mumbai and Thane to prohibit their customers from accessing Orkut. As a result, cyber cafes in Mumbai registered a drop in traffic and were forced to put up notices asking their customers not to visit Orkut.

The Sena even announced that it was developing a special software that internet service providers could install to block any message containing certain words and phrases such as “I hate” or “I despise”.

These incidents were widely documented in Indian media (see Reuters 1, Rediff 1, Rediff 2, IBN Live, NDTV, Indian Express 1, Indian Express 2, Indian Express 3, Indian Express 4, Indian Express 5, Economic Times, Business Standard 1, Business Standard 2, TOI) and debated in the Indian blogosphere and Orkut community (The Hindu). It's especially worthwhile to see two opinion pieces by Amit Varma in LiveMint and Sevathi Ninan in The Hindu criticizing these trends.

The news stories don't give details about CERT's decision on banning Orkut, or the final settlement between Shiv Sena and Orkut, but several anti-Shiv Sena communities have been banned since then.

The Mumbai and Pune police have also put their arrangement with Google to good use since then.

In September/ October 2007, the Pune police arrested four Bangalore based software engineers — 25 year old Lakshmana Kailash, 23 year old Manjunath Betegowda, 23 year old Harish Shetty and 22 year old Kiran Reddy — for posting an obscene profile of Shivaji on Orkut, in which he was shown clad in female innerwear (Economic Times, TOI). It was later found that the arrest of Lakshmana Kailash, who was detained for 50 days, was based on wrong IP addresses provided by Bharti Airtel (TOI 1, TOI 2, TOI 3, The Hindu, Rediff). Lakshmana then sued Airtel, Maharashtra government and Mumbai police and demanded Rs 20 crore in damages (IBN Live, TOI). The status of his case isn't clear from the news reports.

In August 2008, the Mumbai Police arrested Ghaziabad based computer engineer Adarsh Sinha for posting death threats against Bal Thackeray using a fake email identity in the name of Faizab Farooqi. They also arrested Mumbai resident Suresh Shetty, a moderator of this community. (TOI)

Shiv Sena's Case Against Ajith D

Ajith D, a 19 year computer science student from Kerala, started a community called ‘I Hate Shiv Sena’ on Orkut. One of the anonymous commentators on the website posted a death threat to Bal Thackeray. It seems from news reports the Mumbai police has charged Ajith for both criminal intimidation and hurting religious sentiments.

Mumbai police tracked Ajith's Orkut and GMail accounts for a week to ascertain his address and sent a team to his hometown in Cherthala, in August 2008, to nab him. However, television channels flashed news of their arrival, helping Ajith to escape and the police team could only confiscate the hard disk of his computer. The team also said that they were observing the Orkut postings and Internet activities of around 50 other members of the community (Hindu).

Subsequently, Ajith got anticipatory bail from Kerala High Court and moved the Supreme Court through counsel Jogy Scaria seeking quashing of the criminal complaint based on the ground that he hadn't posted the death threat and the community itself wasn't defamatory. The Supreme Court bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam, however, refused to protect him and said: “if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.” (TOI, The Guardian, The Hindu).

Roundup of Blog Discussions on the Ajith D Case

As I mentioned above, several bloggers have reacted strongly to the Supreme Court judgment, often based on partial information (CXOToday).

Lawyer Lawrence Liang at Kafila writes a detailed post on whether a defamation case should be settled under civil law or criminal law and delineates a history of defamation cases against Indian bloggers. He also makes a pertinent point in the Ajith D case –

When organizations like the Shiv Sena and the Sri Ram Sene start using defamation laws, it smacks of chutzpah to me. The definition of Chutzpah is a person who kills his parents, and then claims clemency on the grounds that he is an orphan. What other way can we describe the bizarre situation of the violence prone macho men, who suddenly run around screaming about the violation of their legal rights and the slurring of their reputation?

Patrix thinks that the Indian legal system is biased against freedom of speech –

As you see, anything under the sun can be categorized as an restriction to your freedom of speech. If I say something innocuous and that leads to couple of weirdos smashing shop windows in the town, all it does to get me into trouble is the weirdos saying that my words made them do it. My freedom of speech will be curtailed under “public order” or “incitement to an offense” restrictions. Shouldn’t actions be punished instead of words?

Marshall Kirkpatrick at RWW thinks that the Supreme Court judgement has repercussions for bloggers in all democratic societies –

It's a good idea for us as individual web users to remember that even as new internet technology sets so much information and so many voices free, even in a celebrated democracy – online freedom may be one repressive legal ruling away from being put at serious risk. No matter where you might live – do you trust that your local judiciary would understand the issues in a case like this? We don't.

Nikhil Moro from Civic & Citizen Journalism Interest Group thinks that freedom of expression lost a case in India –

Historically India's courts have accorded a high place for expression in the hierarchy of freedoms, but as Mr. Ajit's unfortunate affair shows, social media activists should expect the state to use a myriad of laws other than libel.

Sanjukta thinks that the Supreme Court decision is good for Indian blogging –

This would help clean up a lot of #@%$ that goes around the blogsphere, will help us become more responsible and mature writers thereby establishing credibility for bloggers’ opinion and most importantly it would kill the terrible habit of writing all kinds of indecent, uncivilized, abusive things anonymously in the comments thread. This would also compel the blog owner or community discussion board owner to keep the discussion clean and abuse free. It will enforce the dicipline of self regulation on bloggers, isn’t that a great thing to achieve.

2s at Mutiny warns against a simplistic discussion on freedom of expression –

The laws of the land must find better ways to control what is being written or said in a public forum than restricting and threatening bloggers with action. Bloggers in India must together call for what I think is a more mature approach and law towards dealing with public defamatory comments on the internet. Bloggers are, after all, not “public” figures like political leaders are and to judge both by the same yardstick might not necessarily be the best method. Besides, is this restricted to just blog posts? What about comments on these posts? What about tweets?

Pramit Singh believes that the SC judgment shouldn't scare bloggers in India –

Some might think the days of free-for-all Orkut groups are over. Others will say they are in fear of treading against people with might – the politicians, big business, virtually anyone with an army of lawyers, who, in this case are trying to put fear of appearing in courts for God knows how many times and thus choosing to ‘write wisely’.

However, I have faith in our Justice system. Bloggers are not going to face a million lawsuits in India.

Dhananjay Nene thinks that the Supreme Court's judgment isn't a conclusive blow to bloggers’ rights –

One important aspect which is perhaps easy to lose sight of in this debate is that the Supreme Court did not weigh in on the guilt or lack of it in this case, but on the fact that the person could not shy away from the responsibility to face the charges in a court.

Lawyer Praveen Dalal also says that we should not read too much in the Supreme Court's judgment –

With the Constitutional Protections on the side of Bloggers there must be very strong reasons to book a person for Defamation or disturbing Religious Harmony. The case is before the lower court that is also a fact finding authority. It is only after the lower court comes to a conclusion that we can proceed either to convict or acquit the accused Blogger. The Supreme Court of India did not found reasons to “Quash” the criminal proceeding against the accused and in the absence of the complete facts of the case as well as the copy of the judgment, it is very difficult to judge the correctness or incorrectness of the same. However, in all probability the accused would be either acquitted or released after admonition.

In an email reproduced in Vijay Mohanty‘s post, senior blogger-journalist Prem Panicker also thinks that the Supreme Court verdict is no big deal –

The SC only said that it cannot, suo moto, quash a criminal prosecution.

It did not say the case is well-founded — that is for the court to decide on the basis of existing law.

Conclusion: The Limits to Freedom of Expression in an Intolerant India

As for me, I see the Ajith D case as part of a larger trend, which operates at many levels.

At the very least, we should see this case as part of Mumbai and Pune police's crusade against inflammatory Orkut communities. Sixteen Orkut users have been arrested in the last two years on charges of criminal intimidation and hurting religious sentiments (Indian Express), and one of them spent 50 days in police custody based on a mistake in identifying an IP address! It's a serious crusade that will only become more intense in the foreseeable future and it raises several important questions.

To begin with, do we really want to defend a blogger, or a community owner, or a commentator, who has posted death threats against a common citizen or a public figure, or allowed these comments to be posted and then refused to remove them?

Going beyond that, should the Indian legal system apply the same standards for defamation for a common citizen and a public figure, especially a public figure as controversial as Bal Thackeray?

How can we allow a political party like Shiv Sena, which has set unprecedented standards in inflammatory religious speech (and violent action to back it up), to complain about blog posts or community comments hurting religious sentiments?

And, finally, given Google's willingness to short-circuit the Indian legal system and share Orkut and GMail personal data with Mumbai and Pune police, how comfortable should we feel in building our entire online presence on Google's services?

At another level, we should see this case as part of a trend, in India and in democratic countries internationally, where traditional institutions are fighting back against the internet and trying to limit its freedoms.

Barkha Dutt and NDTV threatening to sue blogger Chetan Kunte for defamation is a part of this trend. Shri Ram Sena beating up women in a Mangalore pub and then threatening to sue the organizers of the Pink Chaddi Campaign is a part of this trend. US senators refusing to believe that child predators aren't a big threat on the internet is part of this trend. US, UK, Australian and Indian governments introducing tough censorship and cyber crime laws are also a part of this trend.

All these actions, individually and collectively, curtail our personal and public freedoms and also our ability to fight for these freedoms. By threatening to sue a blogger NDTV has curtailed Indian media's ability to question violations of freedom of speech in India. Similarly, by closing down the internet in their own countries, US, UK, Australia and India have curtailed their ability to question violations of freedom of speech in Iran or China.

So, what happens in the case of Ajith D is important in itself, but it is also important as part of what's happening with the internet itself. It's critical that we force ourselves to open our eyes and see the bigger picture before it's too late.

5 comments

  • […] Cross-posted at International Values and Communications Technologies and MSFS 556: Social Media in Business, Development and Government. An edited version of this post appears at Global Voices and Global Voices Advocacy. […]

  • somaie

    Experts have talked about this before. How many times have you read about the importance of ‘adding value’ for your audience? How many times have you read about ‘building trust’ with your readers/prospects?
    Many, many times. You know it well. Every marketing guru has spoken about this topic. I’m sick of hearing it. But it STILL bears repeating. onlineuniversalwork

  • I strongly condemn Bal Thakre for his remarks given against Shahrukh Khan in his mouth-organ newspaper through which he uses to play his hate speech. Every Indian barring a few hundred gang men (I will not say party men) of Thakres (both Raj and Bal) will firmly condemn statement given by Mr. Raut, spokesmen of Mr. Bal Thakre that he as desired by his mentor Bal Thakre, cannot allow Khan to invite Pakistani player to play cricket in Mumbai, that Khan should go to Karachi or Islamabad for living if he has so much love for Pakistani players. Thakre’s gang men passed dirty remarks against Shahrukh Khan‘s newly produced and acted film “My name is Khan”.
    Shiv Sena Sainiks created ugly scene in Mumbai and elsewhere by tearing out posters of Khan’s film and causing loss to public property at some places. All these happened before camera of media. It was well exposed on almost all TV channels. There is no doubt in it that Mr. Bal Thakre have crossed limit in their hate speech, not once or two or three times but on several times in the past. Police remained silent spectator of all these ugly events.
    Hate speeches or Mr. Bal Thakre or Mr. Raj Thakre are two sides of the same coin. They passed condemnable remarks against North Indians on so many occasions in the past. They created ugly scene in state Assembly during oath taking ceremony in the recent past. They did not spare even great industrialist Mr. Mukesh Ambani, great cricketer Mr. Sachin Tendulkar and great Film star Mr. Abhitabh Bachhan who are reputed and respected not only in India but in the entire world. Thakres named above did not spare even unskilled workers like coolies, taxi drivers, student and roadside workers who are from other states and working in Mumbai or in Maharashtra or who do not know Marathi or who are Hindi speaking. Mr. Bal Thakre even suggested permit for outsiders desiring to enter Maharastra state, just like visa for other countries.
    Their remarks against Khan or any Indian who hail from other states or who do not know Marathi are absolutely bad and very much irritating against any Indian and undoubtedly promote hatred ness in entire Muslim community not only in Pakistan but also in India and elsewhere in the world too. Their remarks have annoyed North Indians living in not only in Mumbai or Maharashtra but also all who lives outside Maharashtra.
    Such type of condemnable speech and bad behavior of Thakres have created fear among all servicemen, businessmen, professionals, filmmakers, industrialist and traders of Maharashtra. Thakres have badly polluted business environment and adversely affected social harmony. Thakres have endangered unity and integrity of the country; federal structure provided in Indian Constitution has faced brutal attack by these Thakres.

    Every non-Marathi will fear in going to Mumbai and a day will come when Marathis will be beaten and abused if found outside Maharashtra.
    India is crying for Indians being attacked In Australia. Indian government has in the recent past advised students to avoid Australia in view of continuing racial attacks on Indians in Australia. Such advice by government of India is acceptable to some extent. But it is painful that Indians are attacking now Indians in India and our central government is silent spectator of what have been repeatedly happening for last several years. Indians will perhaps not digest and never like if the same government at Delhi advises Non- Marathis to keep away from Mumbai and the state of Maharastra only because of terror created by Thakre’s hooliganism. UPA must make its stand clear and act before it is too late.
    When Varun‘s tongue slipped during his election speech in UP last year, the chief Minister of UP Ms Mayawati booked Varun Gandhi under National Security Act (NSA). Central government indirectly supported the action taken by biased Mayawati only because Varun Gandhi belonged to Bhartiya Janta Party (BJP). Mr. Rahul Gandhi and Ms Sonia Gandhi extended their veiled support to UP government in keeping Varun in jail without proving any charge and that too under NSA, which is meant for using against anti national elements. Almost every party condemned Varun and his party BJP for his so called hate speech. Why are they all silent in case of hat speech by Raj Thakre or Bal Thakre is a million dollor question and now people of India want answer from State as well central government for this discriminatory attitude.
    I am unable to understand why Mumbai police and Maharashtra state government is not arresting Mr. Bal Thakre or Mr. Raj Thakre or anyone who misuse the freedom of speech granted under Democracy, who is dividing Indians and creating hatred ness, disturbing social peace, whose speech is against the spirit of the democracy or who is posing threat to business climate and economic health of not only Maharashtra but also entire nation.
    Police of Maharastra says that they will not hesitate to take action against those who acts against the established law. I would like to ask Mumbai police whether the acts of Shiv Sainiks shown on TV is lawful and whether the hate speech of Mr. Bal Thakre published in the newspaper is good for peace living Indians. I am unable to understand why and how long these lame excuses of police officials have to be tolerated by Maharashtra government and common Indians.
    Are police officers not forcing civilian to take laws in to their hands to punish extremists like Bal Thakre or Raj Thakre or their associate gangmen. I will be fully justified n saying that there is full support of Maharastra government to police officials and it is they who advise police community not to take action against above Thakre and his associates because it ultimately helps Congress Party in making their vote bank strong and in dividing the vote banks of other parties like Shiv Sena and BJP. Obviously Congress Party has vested interest in promoting the hate culture and it is Congress party, which is dividing the nation on the ground of caste or region or religion and putting blame tactfully on other National Parties in the name of secularism. Congress Party is in fact creating another Bhinderwale in Maharashtra for self interest and there is no doubt that the party will lose its image in Maharashtra as it faced erosion in the sate of Punjab when Bhinderwale was playing the role of Mr. Thakre.
    I however do not hesitate in condemning Prime Minister Mr. Manmohan Singh, the head of the country for being silent spectator of open rape of democracy in the hands of Thakres and their gangsters. Indians want to see his effectiveness and not lame excuses that it is the duty of state government to control law and order in a state. Indians dreamed of good governance in the hands of Man Mohan Singh. But unfortunately Mr. Manmohan Singh has shattered all dreams. His simplicity and honesty is of no use and will prove very mush costly for the country.

    If honorable Man Mohan Singh continues to allow anarchy to grow in the fashion it is growing in Maharashtra and spreading in other parts of the country slowly but steadily like cancer of corruption or naxalism or terrorism (Price rise is adding fuel to fire), I have no doubt that Man Mohan Singh will also erosion in his respectability in the country. There is no hesitation to me in requesting voters of Maharashtra to teach a lesson to Congress Party and Shiv Sena in the next election. I do not hesitate in blaming BJP too who is associated with party like Shiv Sena for the sake of political survival in the state of Maharashtra.
    As of now people are so much annoyed with Mr. Thakre and I am fully confident that Indians in general will praise any individual or any political party, which take initiative to isolate and penalize Shiv Sena, all over the country. Political party breaking relation with Shiv Sena at this stage will gain political advantage instead of political erosion or loss.
    DanendraJain
    Ganaraj Choumuhani Agartala
    30th January 2010

  • sumit

    Maine saamaajaajik hit ke prayojan se kuch soochnaadhikaar (RTI), Janhityaachikaa(PIL), sting operation, cover-stories ityaadi sambandhi ideas taiyaar kiye haim, kya koi nishthaawaan patrkaar, sampaadak, prashaasnik adhikaari, naagrik/graameen athva anya koi hai jo inme se kisee ka kriyaanwayan kar sake athva is hetu print/electronic/social athva anya media athva anya maadhyam se sabke aahwaan ke liye kuchh kar sake? Bhopal 91-9425605432 sumit

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