Freedom of Expression and Amendments to CrPC

Now don't forget Article 19 (2) either.

Now don't forget Article 19 (2) either.

19-year-old IT student, D. Ajit from Kerala, has been slapped with a criminal case for initiating an Orkut community criticising  Shiv Sena, for its “moral policing.” The case was registered after complaint by a Shiv Sena official by Thane police in 2008.

Ajit, had asked Supreme Court to dismiss the case under Article 19 of Consttitution. However, today SC denied to do so on grounds of “reasonable restrictions” stated in clause (2) of article 19. These reasonable restrictions are:

I. security of the State,
II. friendly relations with foreign States,
III. public order,
IV. decency and morality,
V. contempt of court,
VI. defamation,
VII. incitement to an offence, and
VIII. sovereignty and integrity of India.

It is not clear to me which clause this particular act fall into? Defamation? As per Hindu, this is what SC court said:

“You should not have indulged in such activity. You are a student of IT. You are doing something on internet and you should know about it,” the Bench said refusing the plea of his lawyer that there was any malafide intention in putting the contents on the internet.

Perhaps this same clause, also called libelwas used by NDTV to silence the blogger. Unknown to most of us, another media blog has been shut down in past by libel threats by Times of India due to threat for ‘libel’.  What do you think about the issue? What can we do about it? Or we should be more careful in what we write?

This point also brings me to other important issues related to judiciary. Are you aware of amendements  government has proposed to Section 41 of Criminal Procedure Code (CrPC)? As per the new proposed amendments, there will be no arrests in offenses carrying upto 7 years imprisonment.

Some of the offenses with 7 years or less as maximum penalty are:

  • Attempt to commit culpable homicide
  • Kidnapping
  • Death by negligence
  • Cheating
  • Voluntarily causing grievous hurt
  • Outraging a woman’s modesty
  • Robbery
  • Attempt to suicide

Due to several expereinces , I do not trust police. Hence, I can say that influencial and biggies will easily run loose for offences listed above , without arrests, with co-operation from police. Also, it also leaves you open to police atrocities because police will now be able to issue notice against you or call you to police station whenerver they ‘receive creditable information’ or have ‘suspicion’ or have been ‘witness’.

I do not say that existing Section 41 has not been misused by police. But amendments to existing Section 41 gives police even more power.

Existing Section 41 says, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offense. As per Vakilno1., the amendment in CrPC, however, still does allow police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offense but “in the presence of a police officer”. !!

lawyer_strike

Lawyers too have been protesting against these proposed amendment throughout the country. Bar is against CrPC amendment.  There are also different reasons for lawyers to protest. (See the colourbox in the image above.) There are changes in Section 309 of CrPC that make lawyers’ role limited. Read this interview.

Read complete text of proposed amendments to CrPC. There are many more amendments to CrPC that are good (like Section 164 and Section 173), but Section 41 and Section 309 amendments appear to be hindering our freedom.

Also Read:

Police may let go of those with influence
New CrPc will only expedite sentencing (See answers to second and third question)

Cartoon via Brainstuck.com and news clipping via Hindustan Times
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43 Responses to “Freedom of Expression and Amendments to CrPC”


  1. 1 sakhi February 24, 2009 at 5:18 pm

    you know what, i knew all these from reading news papers and yet again i got scared of our own law and order (!) by reading your post.

    And whatever we write here or we talk about and debate, when it comes to the actual situation it is not as simple as voice your opinion. People at the high end have all the necessary connections to destroy one person if they wish to!! 😦 😦 sad but true!!

    I agree, writing is not enough, because biggies do find a way to bow us down. But these amendmenst to CrPC haven’t yet happened. Protest are still on. I guess blogosphere should also rise to it, especially for amendments proposed for Section 41. I guess more bloggers should write about it. I guess Nita too has onc written about it, though I couldn’t find the link to her post.

    • 2 sakhi February 27, 2009 at 9:49 am

      Somehow i feel that the protests don’t help in India!! (of course this is from the past experience!!) What happend at “Mandal Panch” Poor young students lost their lives and then???. Rest is history, everybody knows it… Call me cynical, but all the protests will be in vain if the govt. is hell bent on getting the new laws (of course for their own benefits) No body cares for the public opinion. And I really and sincerely do not know how many percentage of the public really DO have an opinion!!!

      I understand you disillusionment, because I too feel it. But we cant afford to be demotivated by the fact that precious little happens sometimes, because sometimes things do happen. We can’t take this call before taking our action. Problem is we need more people to join for our cause. I can tell you that my going to protest didn’t help any bit, but that shouldn’t stop me from going for more. One day we just might have the numbers we desire. I guess we have to persisit and persevere till what we want happens. Right now that’s all I can say. We must work without expectation, for now.

  2. 3 nautankey February 24, 2009 at 5:28 pm

    Thats a scary one.What next,arrest for criticizing any politician,our politicos wud love to bring an amendment like that.

    Scary, indeed. And politicians, even with different agendas, can be hand-in-glove in this one!

  3. 4 Indyeah February 24, 2009 at 6:10 pm

    http://ccjig.blogspot.com/2009/02/criminal-case-against-orkut-activist.html

    read it today and it sounds scary…but the SC has asked him to appear and then the case might not stand on technical grounds because as you have written too,which category does this case fall into?

    and like I said on the link given above…Gopinath Sir has said something sensible ,like we first should see what are the boundaries within which we should be writing.
    right now there are no defined boundaries as such.So its a free for all.and then we will know exactly what to avoid.Right now it seems to be a case of running scared..we will be scared of writing anything if certain rules are not defined..

    Very well, said, Indyeah. We must first know what is defamation/libel. We must ensure that we are not singled out for libel/defamtion for some vested interests. But for now, we must be careful in what we write. We must ensure we pass our message and yet do not get blamed by biggies. Because biggies can swamp us if we are alone, as I ahve written how two bloggers have been forced to give up.

    But we need awareness first. Thanks for the link, its very comprehensive and useful!

  4. 5 Nita February 24, 2009 at 6:24 pm

    I think anyone writing anything against anyone, particularly a political entity or starting a community should examine the law carefully. This way one can remain on the right side of the law and yet do what needs to be done.

    Yes, certainly. For alone we can’t fight the biggies, as evident by past examples. But we must also know what exactly is ‘defamatory’, where to draw our lines. Also, we must ensure that the freedom we take for granted is not threatened by some vested interests.

  5. 6 Biju Mathews February 24, 2009 at 6:48 pm

    So the end of the story is that the rich would get away since the police have more power now and the hapless will have to pay more bribe and painfully run around the hopeless legal system

    Keep Blogging!!!

    Yes, it will be very bad, if we can not do anything about it yet. 😦

  6. 7 Biju Mathews February 24, 2009 at 6:50 pm

    Oh, sorry to mention, “Nice cartoon!!!”

    keep blogging!!

    Hey, thanks, but I have changed that cartoon as I realised it was not free to use. How do you like this one?

  7. 8 Indian Homemaker February 24, 2009 at 8:31 pm

    What is frightening is that ‘police will now be able to issue notice against you or call you to police station whenerver they ‘receive creditable information’ or have ’suspicion’ or have been ‘witness’.

    I am glad you brought it to our notice in detail. I am going though your links and tying to understand exactly what it all means. So now it seems the lawyers are striking for a good cause… I saw the scenes on the TV.

    We are learning the hard way that Freedom can never be taken for granted. And that maybe when the British said we will not be able to manage on our own, they were not too wrong. … if we did not even win our freedom, what did we win?

    Brilliant and much needed post, I have been dying for some more information about all this. Thank You.

    IHM, thanks for reading about the whole thing. Why don’t you blog about it as well? I guess more people should know about the amendments seankily creeping right under our noses. 😦

    I am never sure if my writing does any good, but you are always quick to point out how we have been useful. Thank you for that! 🙂

  8. 9 Roop Rai February 24, 2009 at 10:34 pm

    i wanted you to do a post on this cuz only you can do justice

    as you have proved again.

    terrible terrible situation though.

    Thank you, Roop, for putting so much faith in me. I wanted to reply this yesterday itself. Why don’t you too write about it, I am sure you will bring new things to table. More we write about it, more it will get noticed, as is the need for the hour.

  9. 10 Reema February 24, 2009 at 11:02 pm

    Good post and thanks for all that information.

    Welcome, dear, why don’t you blog about it as well? More people know, the better! Did ya see I changed the cartoon?

  10. 11 Solilo February 25, 2009 at 12:09 am

    Isn’t reasonable restrictions clause (2) of article 19 applicable to Shiv Sena too esp. 3 to 8?

    public order: their chucking anyone other than Marathis and creating a cluster of own cultural group
    decency and morality: beating up innocents
    contempt of court: even after court order, the goons go on an attack spree exp. when their leader was arrested.
    defamation: of most who are against them
    incitement to an offence:That is what they always do which leads to communal disharmony and I think that’s what was highlighted by that blogger too.

    If someone sues the party then won’t they be liable too? Or are these rules applicable only to common man?

    I think it is time we think about developing a bloggers community where in everyone can sign in and voice issues as a united voice. Everyone who signs in must abide by the rules and people from various walks of life like lawyers can add important pointers for all to read. It is better to make a point in one voice than an individual voice.

    I liked your comment so much, that when I posted this link at Desipundit, I asked them to read yours. By this logic, Shiv Sainiks are more guilty of defamation but they get away with it because their victim is a lonely blogger. Yes, we need an action community for bloggers that can act unitedly, revel in power of our numbers and like-mindedness. I am all for it. IT also shows how lawyers are essential for us.

  11. 12 Amit February 25, 2009 at 2:32 am

    Its strange how laws are stuffed with loopholes to give the rich and the police an upper hand, knowing the fact that police always armtwist the common man.
    Shiv Sena is a group which could have been banned by now but here we are supporting them. Pity!!

  12. 13 vimal February 25, 2009 at 3:39 am

    Freedom of speech and expression happened more during the British era I guess. There were press releases, street shows, books, and revolution in all senses. Gradually, we lost everything. There are people who would want to voice their opinion today, some are scared and the rest do not know how to go about it. But this is the state today, you express your own opinion and finally end up in all unnecessary trouble. and whats with this sentencing a student for creating a anti-community? There are several such communities in the major social networking sites; why, there is also an anti-India community? are they going to tackle that as well in a similar way?

    Not connected to the post, do we really need these many sections in law? Why cant there by one and only one common law for everyone who has committed a crime? For example, sentence a person to death if he attempts murder or rape? He did a crime, there shudnt be any ifs and buts to it. Too many loopholes in our judiciary because of the numerous sections, dont you feel?

  13. 14 Liju Philip February 25, 2009 at 5:48 am

    Am not surprised. We live in a country where judges and lawyers fight like goons in the court premises and the streets. No wonder there is not difference between them and the real goons for whom threatening people is a daily affair.

    Raj Thuggeray, Bal Thuggeray, Modi, Advani, Commies, the Congies responsible for the Sikh massacre etc are holy people. The villain now is a kid who has a anti Shiv Sena community on Orkut.

    Bravo. This is all that our law enforcers can do.

  14. 15 Nova February 25, 2009 at 8:47 am

    Its outrageous! Almost like pre-independence India when people were stopped from printing news papers!!!

    OTT, I would like your opinion on my latest blog. Do visit 🙂

  15. 16 amreekandesi February 25, 2009 at 10:27 am

    Thanks for a very informative post!

    And the big question now is – if i can not write about our very nice (notice the courteous language) political leaders, what would i do?

    I guess i will just become a lawyer myself…i have some student years left in me still 😉

    That’s commendable that you think you have some student years left in you…I have none (i mean for formal programs).

    But this curbing-our-freedom issue is really serious specifically as there is no awareness about definite laws. Anyone biggie can take us to task in such a jungle scenario! 😦

  16. 17 Quirky Indian February 25, 2009 at 10:57 am

    Very useful post. And I am not surprised at all. We are all under the illusion that we live in a free country.

    But I am glad that you have noticed how scary Clause 2 of Article 19 is. As I mentioned in my post on the freedom of expression, the exceptions are so vaguely worded that anything can be seen as violating that clause.

    The police in India have way too much power, and are perhaps the most corrupt institution in this country. And we now want to give them more powers!

    We have only ourselves to blame. After 26/11, we screamed for tougher laws. We allow the government to sneakily introduce these little amendments that take away what little freedom we have, bit by bit.

    When will we realise that we actually have almost no rights, no freedom and no recourse? I fear it will be too late by then.

    Quirky Indian

  17. 18 Quirky Indian February 25, 2009 at 11:02 am

    And as far as the actions of NDTV and the TOI go – since so many of us are outraged, let me ask this question: how many people have stopped buying the TOI? How many people have stopped watching NDTV, and asking others to do the same? The only way to make a business take notice is hit the wallet.

    Well, I am one of them. I hardly watch news channels. They irritate me. I read HT. Perhaps we should show the power of the numbers as soon as one instance hits! But then again, its hard to boycott them all because all of the businesses follow same principles when it comes to showing a mirror to them!

  18. 19 Vikas Gupta February 25, 2009 at 12:11 pm

    The laws may be same for everyone in this country but that is only on paper! It is an open secret that Shiv Sena and other of their ilk have tortured the country in more ways than one disregarding all the norms/law.

    Will follow the CrPC hyperlinks later during my exams while preparing for GK papers.

    P.S.: I refrain from writing long comments now and restrain my instincts while writing.Quite a few of my comments in the blogosphere invited a lot of criticism in last few days despite my innocuous intentions!

    Criticism is part of bloggin life. Take them seriously only if your intent was flawed, or ignore them! Best of luck for your exams! Do follow these links, its important that we are aware about them.

  19. 20 praneshachar February 25, 2009 at 12:19 pm

    very nice alalogy on freedom under article 19. what will be the outcome of the case is different, but it has raised certain fundaments issues. using net or media for abusing somebody must stop. everyone has got a right to live a decent life. at the same time your utterences should not hurt others either personally, or based on religion cast and cred
    you have touched upon criinal procedure coded amendments kudos to you for wonderful exposure to the topic. I appreciate your varied interests and keep going strong. all the best
    pani

  20. 21 Confused February 25, 2009 at 2:18 pm

    Errr.. could you explain how amendment to section 41 gives police more power?

    A plain reading of the amendment suggests that now the police will have the power to arrest people in cognizable offenses if the police officer witnesses the crime himself.Otherwise, he can issue notice befotr the person has to be arrested.

    Why this is necessary because seven year term covers many things like kidnapping e.t.c So if the cops rescued a kidnapped child, they would not have the right to arrest the kidnappers without this exception.

    If anything, the amendment has gone too far and should be.. err amended to exclude violent crimes like kidnapping and outraging modesty of women e.t.c.

    The existing law said that police cud arrest anyone with or without majistarte’s warrant. Government’s logic for amendment is that this was being misused by police. True! Problem is this amendment still lets police to arrest anyone without warrant, with a small condiation added “presence of another officer”!! How hard is that? So government’s logic doesn’t hold at all. Now, the explanation why this amendment gives more power to police:

    Because police can now ‘send notice’ to anyone on just the basis of ‘suspicion’ or ‘credible information’ (which may be heresay). They can then also arrest you claiming you were not ‘co-operating’. No reprieve from law/magistarte (because that’s what law says) if you are innocent and are being framed (which is not-so-uncommon case in this country). I can give you several examples to highlight its possible repurcussions.

    Implementation is a bigger problem in this country, certainly before the formulation of law, we must ensure there are no loopholes. Judiciary is too slow or sometimes ‘ineffectual’ to come to common man’s aid. I agree with you when you say that lawyers are also protesting because they will lose their income, amendments of adjournment related to Section 309. But amendments to Section 41 are also on their agenda. Also, we must not ignore lawyer’s cause because legal advice is a service for us, and we don’t want that our chnaces of ‘fair trial’ are jeopardised in any way.

    I hope my explanation was adequate. I stand-by my post, wouldn’t be making any useless amendments.

  21. 22 Confused February 25, 2009 at 2:21 pm

    The main reason lawyers are protesting because it will affect their income–ask folks and they will tell you so many delays are because lawyers endlessly seek adjournments.

  22. 23 Confused February 25, 2009 at 2:27 pm

    ”The way criminal jurisprudence is exercised, especially against communities which are disadvantaged socio-economically and culturally, is a tragic testimony to the deep-rooted prejudice against them. The poor, the dispossessed, Dalits, Adivasis and minorities are easy targets of the police. The amendment to Section 41, which allows the police to simply send a notice to the accused to appear before them, may be seen as a relief. In truth, it does not mean anything to these communities whose members are regularly detained without warrant or notices. At best, the amendment legalises the rampant extra-judicial detentions by the police.”

    See, this is the crux of the problem. These folks are confusing the law with its implementation. Is there any law which can be designed so perfectly that it cannot be misused? What this guy seems to be arguing is that no law will make a difference since police is inherently biased. In that case, focus on police reforms–don’t talk nonsense like section 41 gives cops more power because now they can issue notice instead of making arrests. Does that make any sense?

    I would humbly suggest that you revise the post.

  23. 24 Indyeah February 25, 2009 at 2:29 pm

    the new cartoon is nice too:)

    Thanks! 🙂 Created by Anshul at brainstuck.com

    • 25 Anshul February 25, 2009 at 11:17 pm

      Thanks Indyeah, unlike CartoonStock(CSL) who charge ₤7/day for non-commercial use, I charge only Rs.5 a day. Please feel free to use my cartoon, if interested. 🙂 😉

  24. 26 Gopinath Mavinkurve February 25, 2009 at 2:48 pm

    Timely post on this issue. Bloggers need to organize themselves and get themselves educated in the nuances of the legal provisions of libel /slander/ defamation. It is high time that bloggers learn to differentiate “using their freedom” to express their freedom from “abusing freedom” by posting offensive and defamatory content. Media giants can get away due to their finances and powers vested by the public (us!) Dont you think bloggers need to empanel some legal experts by getting together?

    Yes, we certainly need some legal experts and a awareness on this matter is a must. I could hardly find any legal bloggers. 😦 I used google blog search.

  25. 27 Chirag Chamoli February 25, 2009 at 2:54 pm

    Dude, you read my mind… I mean WTF india, we are not allowed to even open stupid communities now. That too against morons. I know we all have to be careful now, but whats the point. It it 1984, once more.

    As QI said, we are under an illusion of freedom.

    Also, lets stop buying TOI and watching NDTV. Its a business after all. Can we start a campaign for that?

    My sentiments exactly, when you say now we can’t even open a ‘stupid’ commmunity!! That’s what orkut is about expressting your likes and dislikes! Did ya notice noone has noticed these proposed amendments, our President Pratibha Patil has already signed assent! Amendments to CrPc are creeping right under our noses! We must protest. Perhaps we all should write about it on our respective blogs and web sites.

    I am all for any campaign, but do you think it would work? Are other media barons trustworthy and blemish-less?

    • 28 Chirag Chamoli February 26, 2009 at 10:57 am

      I agree, that is way I started the book Idea. Want to fight the system. We in India, are free only if we have money and ‘connection’, anything less is useless. And the folks with Money don’t care.

  26. 29 Smita February 25, 2009 at 6:42 pm

    You said Freedom of expression??? what does that mean?

  27. 31 Ashish February 25, 2009 at 6:47 pm

    FUCK THE INDIA! \m/ 😛

    [Guess where I stole it from?]

    Be careful, hope someone doesn’t sue you? 😛

  28. 32 Vee February 26, 2009 at 4:03 am

    It’s all scary. I read the comments in the article and people are agitated, but will that fall on their deaf ears? It’s like the climax of RDB… hum ye kar denge, hum wo kar denge…par karne kaun dega???

    out of context, We are going backwards.. absolutely. We are getting talibanized….. ok now will I be charged like Renuka was for taliban statement?

    Agitation is certainly there amongst people, but we still have see how much of it will convert into action. Yeah, Talibanization is more bad, cruel..don’t even want to think baout it. Have you read The Kite Runner?

  29. 33 sm February 26, 2009 at 10:21 pm

    hi
    nice post. we have to be careful while posting

  30. 34 dinu February 28, 2009 at 5:38 pm

    turn on mandatory comment moderation ?

    No, I dont have mandatory comment moderation on, but thinking to have it here. hmm

  31. 35 B K CHOWLA March 3, 2009 at 12:14 pm

    In a democracy,freedom of expression is what the world values the most.It is a pity,what you and I value most is becoming the monopoly of the rich or should I say politicians.Who should we take this case with?Light few candles for the TV…..No. All bloggers must unite and fight the problem before ittroubles us.
    We thought..it sound silly at the moment.
    Can we all bloggers form a “club” and contribute regularly to take legal opinions??

  32. 36 praneshachar March 6, 2009 at 4:35 pm

    poonam I think you have missed my comment
    I am very much impressed with the enthusiasm shown by so many on the issue of fundamental rights, reasonalbe restrictions and applicability to shivsainiks,amendments to CrPC all issues which are not subjects of easy understanding. but hats off for the wonderful resoponses and your referal to desipundit so in toto I am really impressed. your 3rd year beginning is with a bang and I wish you all success in the years to come and more and more awareness among the youth who are the future of this great nation
    let the spirit of freedom spread.
    have a great time and year ahead

    Yes, I must have missed the comment before. This CRPc issue needs to be talked about in detail. Thanks for the wishes, I hope I can be of some use to the country.

  33. 37 Eva May 13, 2009 at 7:53 pm

    I had posted on my blog my personal experience of being abused and used by a pathological liar and a psychopathic internet stalker. All of it facts. My intention of putting up that post was to warn women in particular, and the public at large, about the extent of abuse, manipulation and cheating that this guy was capable of inflicting, should they be unfortunate enough to be taken in by his charm and lies. Then came the comments from his ex-wife and several other women who had borne the brunt of terrible emotional rape, physical abuse and financial cheating at the hands of this man. Not only that, his ex-colleagues and friends from school also commented on his thieving, scamming and cheating. It so happened that during this time when my posts was up, the Supreme Court came up with ruling about internet blogging. I was threatened by this man’s father that if I did not withdraw the post, they would sue me for charges ranging from libel to defamation to financial loss as result of this defamation to abetment to suicide! Can someone charge me with libel when everything written on that blog is true and can be corroborated with documentary evidence and actual witnesses? Can the charge of defamation be levelled when this man has committed all these terrible acts and everyone who has commented on the blog is ready to stand in court of law and testify? And pray why would I be seen as an abettor if this person commits suicide? Under which clause does my writing the post fall into?

    I. security of the State,
    II. friendly relations with foreign States,
    III. public order,
    IV. decency and morality,
    V. contempt of court,
    VI. defamation,
    VII. incitement to an offence, and
    VIII. sovereignty and integrity of India.

    As far as I can see, none of these apply. If there is a legal expert on cyber laws here, please help. I am fighting a lone battle and I want that post to be up again, because I believe no woman should be denied the right to know about this offender and his modus operandi and not have the opportunity to protect themselves against his evil.

    • 38 To Eva November 18, 2009 at 8:09 pm

      If you are not sure of whether it offends the reader, display a warning like “Click to Enter” content may be unsuitable etc and “By clicking you are agreeing to understand that everything is views and opinions of others …etc”. Clicking is an explicit action by which the user accepts the content.

  34. 39 Janet Kt. June 10, 2015 at 5:18 pm

    In a democracy,freedom of expression is the thing that the world values the most.It is a pity,what you and I esteem most is turning into the imposing business model of the rich or if I say politicians.Who if we take this case with?Light few candles for the TV… ..No. All bloggers must unite and battle the issue before troubles.
    Case Study Help


  1. 1 Supreme Court ruling on Blogger’s case at Blogbharti Trackback on February 25, 2009 at 2:29 pm
  2. 2 Be careful how you blog « NITYIN’s Blog - Life in the Himalayas Trackback on February 26, 2009 at 1:49 am
  3. 3 Express Yourself, Face Prosecution? Bloggers Speak | TechIndia Trackback on March 3, 2009 at 9:49 am
  4. 4 Web, and Elections, the Indian story. Trackback on March 4, 2009 at 6:42 pm

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