DRAFT Open Letter to Justice Suresh Kait. I ask you to stop your ongoing campaign against free speech.

I’m preparing an Open Letter to Justice Suresh Kait. I’ve knocked up a draft, below, that I’ll modify based on any feedback I receive. Please send your comments to me (only) by email at [email protected]. I’ve not had a chance to review it carefully. Once I’ve got some comments and have time to read it again, I’ll finalise and publish it, deleting this draft.  Therefore, please don’t comment on this post directly, since this post will subsequently be deleted. Only send an email.

===DRAFT OPEN LETTER===

Mr Justice Kait

At the outset, I invite you to read the Free Speech Manifesto that I published on 21 February 2014. I periodically update it with tidbits, but one day I’ll finish the work and convert into a book. Also see the Facebook page I started in 13 February 2014 on Absolute Freedom of Speech: No Exceptions.

Now for the reason why I need to write this letter to you.

On 24 September 2014 I received the following message [I’ve removed the URLs]

Subject: Matter in complaint from Sh. Suresh Kait.

OFFICE OF THE ASSTT. COMMISSIONER OF POLICE, CYBER CRIME CELL, EOW, CRIME BRANCH 2nd FLOOR, P.S  MANDIR MARG COMPLEX  NEW DELHI-10001
No.      /R-ACP/Cyber Cell/EOW /Crime Branch, New Delhi, dated 23/05/2014

To
The Network Administrator,   
24 Doyle St

Bulleen, Victoria

Australia

Subject:   Matter in complaint from   Sh. Suresh Kait.
Some unknown person is writing about Delhi Hight Court Judge Sh. Suresh Kait and using very defamatory words in the blog.

The link is :

xxx

The actions required are:

Immediately block the link

1.       Registrant Details

2.       Login detail /Logout details of the above web portal along with e-mail ID with the IP addresses from which the above portal/domain Account has been created and accessed.

The above documents / information are required urgently and may be sent to this office by email.  
 
(H S P Sigh)
Asst. Commissioner of Police
Cyber Crime Cell
EOW: Crime Branch, Delhi Police

===

Two pieces of key information relating to the said blog post:

1) The blog post in question was published on 13 January 2012, i.e. over 2 ½ years ago.

2) It heavily criticized you for advocating Chinese free speech law in India.

I presume (unless the ACP confirms otherwise) that you complained about my blog post. I asked for details from the ACP and requested a copy of the complaint but have not received the complaint. Neither you nor the ACP gave me an opportunity to review your complaint.   

I consulted with a free speech expert in India and was staggered to find that this practice of issuing “take-down notices” under s.66A of the Information Technology Act has become very common in India, now. Everyone is busy getting such notices issued against things they don’t’ like. I was also informed that Indian enforcement agencies are adept at harassment and can lodge cases in Manipur or other distant places to increase the harassment one experiences, if one chooses not to comply. After discussion with the expert I decided to comply – under protest. All this happened within around 12 hours or so of receiving the notice. I trust you are happy that you forced me to shut down my bog post.

But note that the mere fact that I’ve complied with the draconian India law which was misused in this case does not mean that I have changed my mind regarding the underlying matter which prompted that blog post. Please note that you can never make me change my mind through force. Only through debate.

Through this Open Letter I invite you to a public debate with me. You lost the first opportunity to debate with me – by commenting on my blog. All civilized people use that opportunity on the blogsphere. You could have written an email to me, as well. None of that for you. Only force.

Now you get a second opportunity to redeem yourself.

I have been fighting for liberty for India for over 15 years now. You’ll NEVER get me to agree that Chinese totalitarian laws are good for India. But you can try to persuade me by offering detailed reasons for your deep desire to impose totalitarian Chinese laws on India.

The draconian law which was misused in this case

First, let me not that you misused the law in this case. I had separately (prior to contacting the free speech expert) read s66A. S.66A of the Information Technology Act is barbaric and totally anti-liberty. You might wish to consult the opinion of those who oppose the act (such as the article here: http://www.indexoncensorship.org/2014/06/the-repugnant-section-66a-of-indias-information-technology-act/).

The law:

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 by making use of such computer resource or a communication device, shall be punishable with imprisonment for a term which may extend to three years and with fine.

What I wrote was not “grossly offensive” in any way. Instead, what you said was grossly offensive  – citing the desirability of having China’s totalitarian regime for the Constitutional liberal republic of India. The offence was caused by you. I merely reacted your obnoxious opinion. More generally, the idea that something “grossly” offensive can’t be written and published is a huge denial of basic freedom of speech. Without the right to cause (non-violent) offense, there can be no freedom of speech.

There is no other term in the Act which the police could have even remotely considered cause-worthy. What I wrote was not “menacing” in any way. Calling for impeachment of a judge who wants to use Chinese precedents in India is an attempt to seek redress to constitutional remedies. It is not menacing. And what I wrote did not use any “false information” (s.66A(b)) – unless you claims that Indian Express misrepresented his words – in which case you should go ‘fix’ the Indian Express.

I need to know on what ground the police used s.66A to cite me. I requested the ACP for his inquiry report, so I can assess the logic he used. As expected, the ACP did not bother to provide me either the complaint or the relevant inquiry report. This is nothing but BARBARIC TOTALITARIANISM. India is no longer a free country. There is no law of limitations (this is a 2 ½ year old blog post we are talking about). Someone complains, someone investigates. BUT no copy of either of these is provided to the person complained against. There is no speaking order is issued. The decision is made in private. An order is issued. The law is misused at whim. Non-compliance is punished through severe harassment.

What does this look like to you? The action of a constitutional liberal democratic republic? This law has undone India’s ENTIRE FREEDOM MOVEMENT.

The substantive content of my blog post

You started the ball rolling across the WORLD by making your injudicious and grossly offensive comments about China being role model for free speech in India. This was reported on 12 January 2012 in the Indian Express and in The Wall Street Journal among many others.

The Indian Express wrote:

The Delhi High Court today warned social networking site Facebook India and search engine Google India that websites can be “blocked” like in China if they fail to devise a mechanism to check and remove objectionable material from their web pages.

“Like China, we will block all such websites,” Justice Suresh Kait said while asking counsel for Facebook and Google India to develop a mechanism to keep a check and remove “offensive and objectionable” material from their web pages.

Your story was of GLOBAL importance. The whole world read your comment and had a queer visceral sensation of disgust at the fact that people like you are part of India’s judiciary.

Note that you made an OFFICIAL comment after much consideration. You are trained in law, your whole life revolves around justice. You should presumably make comments AFTER much thought.

In comparison, I write blog posts in minutes. I say what I have to say the first time around. I don’t even edit for spelling mistakes or grammar. I just say what I have to say, and push the “Publish” button, moving on the thousands of other things that I’m involved in. That’s how blog posts are written all over the world. These are opinion shared with the FEW readers who may wish to engage in debate/discussion with me and even correct me I I’m wrong. I welcome debate.

The word ‘blog’ comes from web log – a diary kept publicly on the web. Just like one doesn’t take hours to write a diary entry, so also the blog post is a creation of instantaneous thought, warts and all. This is how the blogsphere works.   

In my blot post I objected to your citing China. I said what I had to, and moved on.

But I digress. Let me revert to your comment.

The crux of my comment was an appeal for your impeachment since I feel you are unfit to be a judge in India. That’s an opinion I held then and continue to hold now – unless you are able to persuade me why you hold Chinese totalitarian laws in such high esteem. You can’t make me change my mind by bullying me.

Tell me what makes you think that China is a role model for India on anything, leave alone on basic human rights? India was created to be a free nation, like USA. Indians must have the fundamental right to say anything on Facebook or on their blog. It is their opinion, their birthright to hold an opinion. These are not journalists or famous writers who pick their words after spending a good amount of thought. These are ordinary people going about their ordinary business and forming or expressing an opinion in a matter of seconds, or minutes.

Such people also happen, by the way, to be the voters of India. They the People of India. They are the reason why we have a free India. They elect representatives who form government. They are the ones who fight corruption, who create revolutions, even emigrate in search for a country they can live in.

China doesn’t have democracy. They don’t care about the People. But India does. Those who put out draconian laws can be shooed out through the hustings. And we can debate our laws and change them. China can’t.

You cannot stop someone from forming a poor opinion about something you or anyone else says. Many people have a poor opinion about me. Go to the internet and you’ll find abundant proof. I don’t chase after people for holding (and publicly expressing on their blog) an opinion about me or my work. You or I cannot control the minds of people. We should not try. We should stand firm for our beliefs and let other people think whatever they wish. That’s the point of having a pluralist democracy, not totalitarian state.

Assuming you continue to hold your 2012 opinion re: China, I continue to oppose your view, and no matter how many legal notices you send, you can NEVER control what goes on inside my head.

I am surprised that my comment even came to your notice. I am one of perhaps a hundreds of millions of people across the world who read about your obnoxious opinion. Most people probably formed an even worse impression about you than I did.

Are you aware that MANY people across the country commented quite adversely on your views: independently of me? I cite only two of them below, which I quickly searched on the internet and located. There would be hundreds of others.

1. First, a spoof on your comments published on 15 January 2012 The Unreal Times: “After Google & Facebook, Govt to now ban all broadcasts of Ind-Aus Test series”.  This post states that:

Following up on their prosecution of Google, Facebook and other websites over “objectionable” and “offensive” content, the Delhi High Court has now decided to ban all telecasts of the ongoing India v/s Australia test series on the … grounds [that] the ongoing test series could incite national outrage, frustration & depression. “See to it that you somehow show the Indian team performing well, or else we will stop your telecast & play Jackie Chan movies instead. You (Cricinfo) folks will have to give line-by-line commentary for the same”, Justice Naresh Tait  – supposedly a distant relative of Australian tearaway pacer Shaun Tait – supposedly told the television companies.”

2. 6 reasons why Justice Kait’s statement to Social Media firms is a National and Legal Disgrace

on January 13, 2012 on Patheos.com. Both these websites have massive readership. My humble blog has almost no readers, in comparison. The Patheos article states:

“The judge had a strange take. “Like China, we will block all such websites,” Justice Suresh Kait told the counsel for Facebook and Google India.

If one really thinks about it, the judge’s remark is a gross violation of our judicial system. Why? Here are the reasons why.

1. Indian Courts are to follow the provisions of Indian laws which have been laid down by a democratically elected Executive and legislature. These are based on the Common laws originating from England, due our historical foundation of legal system. China, however, follows a different judicial system and set of laws. They are based on their culture and Government style, which is not democratic.

2. A Judge of the Indian courts is a servant of the Indian legal provisions. S/he may have a lot of personal ideas and values, but s/he has to by oath, defend the provisions of Indian laws as laid down by our system. For a judge to threaten use of laws of a foreign country is violation of his basic oath. To rule on matters before the court, Justice Kait is bound to follow Indian laws.

3. Judgments in the courts have to be based on sound justice principles not Jingoism!

4. The ethos of a country decides the laws in that country. Courts, whenever they indulge in Judicial activism, they endeavour to promote that basic ethos of India and further equality and justice in the country. Such judgments can set a precedence of invoking over-riding and far reaching powers of the state, which by proxy are being shown to extend to branches other than the Executive. This is unacceptable specially as it is dealing with entities that are prominent in International Commerce.

5. This must be the only case, where a companies from outside the country – Google, Microsoft, and Yahoo from US – are being judged by a country’s legal system – India – under the laws of none of these two countries, but a third country – China!! If there was ever a ridiculous judicial situation, this is it!

Beyond the obvious issues with the justice’s lack of judicial integrity is the issue of confidence of Global Commercial system in India’s system itself. From the Indian Government to the Indian courts, we are seeing a disturbing trend. Every one in the system seems to be exerting his power, not because he has that power, but because he can usurp it because of the lack of integrity of the democratic system to uphold its constitutionally enshrined values.

6. This should be disturbing to many, including the Indian citizens. India’s system just acts as a democratic system, but behaves like an authoritarian one. And this is the most important reason why Justice Kait’s statement is a disgrace!

I’m posting these comments here since these opinions are (as of date) still operating freely, without your having pulled them down. No Indian likes taking advice from totalitarian China.

While you are welcome to migrate to China, how many Indians you know who have done so? They go, instead, to USA, UK and Australia, which are havens of freedom and free speech – in comparison with India. People want FREEDOM, not OPPRESSION. Indians are moving, as explained in my book, Breaking Free of Nehru, from the country with one of the world’s lowest levels of freedom (India) to countries with higher levels of freedom.

Indians DETEST China and will never migrate to China until it decides to become a free country. In China they jail those who speak even against the atrocities committed by the government. We don’t do that in India. Let us be grateful for these small mercies.

The Indian Constitution was intended to protect our free speech rights but these have been heavily truncated over the years. I disagree fundamentally and viscerally with many of the restrictions on free speech now imposed through the Indian Constitution. I demand free speech rights accorded by the First Amendment in the USA which includes the following:

“Article the third …… Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Your counterparts (judges) in the USA have been at the forefront of defining and expanding the meaning of these free speech rights. The current entry of Wikipedia states:

“Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections. The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.”

Compare your statement with them. Imagine the kind of deplorable and anti-liberty message you are sending to Indians everywhere – that should they hold an ‘inconvenient’ opinion, the opinion can be expunged. Let Indians SPEAK their mind.

I would have been delighted if you had cited the USA and its precedents as basis for your decisions. Instead, you chose totalitarian China where virtually no free speech is possible.

My opinion is a philosophical opinion with even more reasons to be protected. I am associated with a classical liberal movement in India which demands liberty.

Recently, the Australian Attorney-General George Brandis, addressing the Senate and on Lateline, said: “People do have a right to be bigots, you know. In a free country, people do have rights to say things that other people find offensive, insulting or bigoted.” [Source] I agree with him.

While this perspective on speech may sound obnoxious, it is not. Indeed, it is the essence of liberty. The right to say something offensive, to even express bigotry – but non-violently, is the basis of all civilisation. If all one is allowed to say are pleasantries, then what ‘freedom’ is involved? That’s doctored speech. That’s manipulated speech.

Holding an OPINION – no matter how offensive cannot be a criminal offence. The way to resolve differences in opinions is through discussion and debate, not through coercion.

I insist that all free speech be non-violent. There must be no threat of violence in the speech. Then all’s fine. No matter the language used. After all, here’s a human being trying to get a point across.

You chose to bully me. Only a coward uses the force of the state (with its monopoly over the use of arms) to suppress an ‘inconvenient’ opinion. When I did not say ONE word that was violent or threatening of violence, I don’t see why you had to choose force over debate.

In matters of human rights we ought to aspire to the best in the world, not to the worst.

In my opinion you disgraced the great Indian tradition of tolerance and free speech and denied the entire point of our freedom struggle through your desire to cite China as the gold standard of human rights.

Now that you know something more about the background to my opinion, I invite you to rebut my arguments through debate. I invite you to advance freedom of expression, not limit it.

Join me in sending a clear message to the people of India that vigorously opposing the opponents of free speech is a pro-Indian act. It is in the PUBLIC INTEREST to have people oppose the opponents of free speech. You should, as a judge, distinguish between ‘inconvenient’ criticism that you don’t like and the public interest involved.

Sanjeev Sabhlok

==

A REMINDER THAT THIS IS A DRAFT AND I’LL REVIEW AND PUBLISH A FINAL VERSION AS TIME PERMITS.