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| Devangshu Datta: Wages of permissiveness |
| Devangshu Datta / New Delhi Jul 18, 2009, 00:04 IST |
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The Second Reich’s (1871-1918) penal code listed all offences with exact punishments. As Jerome K. Jerome said, this made financial planning a snap before planning a night out on the tiles. A German could get drunk, pick a fight, sing obscene songs and calculate to a pfennig the fines that would accrue.
In Britain, similar revelry could result in anything from a warning to fines, to imprisonment, depending on the mood and attitude of the magistrate. The British legal system has wide discretionary powers. It lays less emphasis on due process since discretion includes the discretion to bypass due process.
In Psmith Journalist, P G Wodehouse observed how the German system empowered freedom of speech: “German newspapers with a taste for lèse majesté hire a Sitz Redakteur, a gentleman employed to go to prison whenever required. The real editor hints, for instance, that the Kaiser’s moustache reminds him of a bad dream. The police force swoops down on the journal, and are met by the Sitz-Redakteur, who goes peaceably, allowing the real editor to sketch out plans for his next article on the Crown Prince.”
The British often let freedom of speech flourish but it was discretionary. Indians freely published essays excoriating the Empire. The Pearl, a pornographic Victorian periodical, was widely available despite blow-by-blow accounts of tribadism, S&M, incest and what-not. However, Radcliffe Hall’s The Well of Loneliness was banned because the two leading ladies (WWI ambulance drivers) “were not divided” on one night of passion.
The British system did, and does, have some due process to leaven discretion. The Well of Loneliness went through a public trial. Ditto Lady Chatterley’s Lover, which won the right to be published in 1960 after the Obscenity Act was amended.
India inherited the discretion and has since rewritten laws to eliminate due process, wherever possible. Satanic Verses and My Girlhood did go through court. Taslima’s book is available because the judges thought a ban sought by the West Bengal government was unjustified. But these are print publications, governed by old British laws.
The erotica website Savitabhabhi.com falls foul of Section 67, IT Act, which retains discretion to ban while dispensing with inconveniences like due process. Somebody (we don’t know who) complained. If they followed proper procedure, an inter-ministerial meeting of joint secretaries reviewed the complaint and then orders were issued to ISPs to block the site. The ban was not publicised, the site owner given no right to defend the order.
The Cabinet Secretary heads another committee that eventually reviews cyber-bans and has the discretion to rescind them. The reasons for blocking websites can include “endangering the Sovereignty or Integrity of India, the Defence of India, the Security of the State, Friendly Relations with Foreign States, Public order and, preventing incitement to the commission of any cognisable offence relating to above.”
In their wisdom, a bunch of mid-ranking IAS officers have decided one of the above provisions applies to the sexual misadventures of a Gujarati housewife. The most senior member of the service will chair a meeting that decides if the original ban was justified. Previous bans under the IT Act include one on Princesskimberly.com, which is the diary of an American teenager bemoaning her lack of a love life.
Quite apart from due process, freedom of speech, etc, this is a massive waste of public resources. Inter-ministerial committees solemnly reviewing bhabhi-erotica and teenage virgin fantasies transcends the absurd because it adds to the fiscal deficit. (Mind you, one would love to read the minutes.)
The IT Act was pushed through in the name of “security”. The drafters believed the average citizen would not know or care that there is a distinction between monitoring information flow and blocking websites on random whims. They were right.
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