Mr Justice Kait
At the outset, I wish to note that I have been fighting for liberty (including free speech) for India for over 15 years now. I invite you to read my many writings, including the Free Speech Manifesto that I published on the internet on 21 February 2014. I periodically update it with tidbits, it being a preliminary draft . One day I hope to finish it and convert it into a book. Also see the Facebook page I started in 13 February 2014 on Absolute Freedom of Speech: No Exceptions. I insist on total free speech in India on the lines of the US First Amendment. Nothing less is acceptable to me, and I hope to other Indians
Now for the reason why I am writing this open 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
The Network Administrator,
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 :
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 should first be noted:
1) The blog post in question was published on 13 January 2012, i.e. over 2 ½ years ago.
2) It heavily criticized your advocacy of Chinese free speech laws for India – being in your view (reportedly) a basis to interpret Indian laws.
I presume (unless the ACP confirms otherwise) that it was you who complained about my blog post to him. I asked for details from the ACP and requested a copy of the complaint but did not receive it. Neither you nor the ACP have given me the opportunity to consider your complaint. This is the great Indian "rule of law", by which adverse decisions are taken without even telling the person affected about the nature of the complaint.
Upon receiving this astonishing notice, I consulted with a free speech expert from India and was staggered to discover that this practice of issuing “take-down notices” under s.66A of the Information Technology Act has become very common. Everyone seems to be getting such notices issued against things said about them or their company that they don’t’ like. It is not longer acceptable to criticise anyone or anything in India. ONLY good things are permitted to be said. Had I praised your support of Chinese model for India, I'm sure you'd have never got such an notice issued to me.
I was also informed by this gentleman (expert) that Indian enforcement agencies are experts at harassment and have been known ot lodge such cases in Manipur or other distant places to cause extreme harassment – should one not comply with the notice. After a brief 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 satisfied – now that you've forced me to shut down my bog post.
But please note that my compliance under protest with the draconian India law which I am sure was misused in this case does not mean that I have changed my mind either regarding the anti-liberty laws of India, or your advocacy of China's system for India. I'm afraid you'll fail to make me change my mind through the use of state force. Only through debate.
Let me know why China's is such a great system for India to adopt, and I might concur with you.
Am I to understand from this incident that any criticism of the law and the interpretation of laws is now forbideen in India? Perhaps you've not read this, before;
“It was all Mrs. Bumble. She would do it," urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.
That is no excuse," returned Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."
If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.” [Charles Dickens, Oliver Twist]
I suppose next you'll call for a ban on Oliver Twist.
Through this Open Letter I invite you abjure your tendency to use force. Decent, non-violent people who disagree with me (and there are plenty) are welcome to debate with me on my blog. Most decent people take that opportunity, and I engage in hearty debate with them. That's the proper way to dispute my views. Indeed, that's how the truth is found. And I will always defend the truth, no matter how painful that search may be.
Or you could have written an email to me. But clearly these decencies are not for you.
To give you a second opportunity for debate I now invite you publicly to help me change my mind. Persuade me that Chinese tyranny is good for India. And that the law is not an ass.
A recent report noted that "The treatment of dissidents outside and inside China is abhorrent. Many dissidents have not been able to visit their parents, brothers, sisters or relatives for two or three decades" [Source].
But first, do you recognise this image below, my dear Justice Kait? And by the way, do you remember why we fought for freedom from the British? Was it just to get people like you – who praise countries that MASSACRE their people?
Now, do you know who this is, Mr Justice Kait?
He is Liu Xiaobo, a Nobel Peace laureate, who is in STILL in jail.
Do you know who this is (below), Mr Justice Kait? A young boy Joshua Wong, a HERO at age 17, who (like Malala) is standing up against tyranny. In this case he is standing up against Chinese tyranny. In an era where basic liberty is under threat everywhere in the world, including in India from our anti-liberty laws and judges like you, he deserves a Nobel Peace prize, as well. The world rightly only recognises those who ADVANCE human liberty, not destroy it. If you wish to be remembered, you'll have to be on the side of liberty, not against it.
And have you heard of Ai Weiwei? The man has been tyrannised in China for non-violent speech.
I won't to on. You can start by reading this list: http://en.wikipedia.org/wiki/List_of_Chinese_dissidents
And this, below, my dear Justice Kait, is the CHINA you so vigorously advocate. This is from the recent Hong Kong protests:
Kong Su-lin, 75, retiree: "I was out last night even though my grandchildren tried to stop me. I am old so the gangs don't dare touch me. I stood between them and crossed my arms telling them not to hurt the students. I am afraid that I could've gotten pushed because I broke my back last year. But I hate the Communist Party, they have to be opposed. I am from Hangzhou and moved to Hong Kong with my family in 1984. My dad died in a Chinese prison. He was a talented artist and the government labelled him as a rightist and put him in jail. That's why even though I'm old I have to come onto the streets to defend Hong Kong. If it becomes just like China, any of us can be thrown in jail and suffer for no reason at all." [Source]
You’ll NEVER get me to agree that Chinese totalitarian laws are good for India by spouting your wisdom in court and BLOCKING my vehement objection to your unsustainable views. But you could try to persuade me by offering detailed reasons for your deep desire to impose totalitarian Chinese laws on India.
Now for the draconian Indian law which was misused in this case
I wish to note that no current Indian law applies to this case. The notice issued to me is bad even under the current bad law. I had separately (prior to contacting the free speech expert) read s66A. Section 66A of the Information Technology Act is barbaric and totally anti-liberty. A lot of sensible people have vigorously opposed it (such as this).
The relevant section is provided below:
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.
I would like to note that what I wrote was not "grossly offensive" in any way. Instead, it was what you said that was grossly offensive. The idea that China's totalitarian regime is a role model for the Constitutional liberal republic of India is close to the most offensive thing anyone can say. So the offence was caused by you. I merely reacted your obnoxious official 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. The right of free speech is fundamentally the right to offend. So you are also free to write whatever you think about my views, and I will not serve a s.66A notice on you.
I can't find any other term in section 66A which the police could have even remotely considered cause-worthy. What I wrote was not “menacing”, for example. Calling for your 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 your words – in which case you should go ‘fix’ the Indian Express, first.
So I still need to know the grounds by which the police used s.66A to send me a "take down" notice. I requested the ACP for his inquiry report as well, so I can assess the logic he used. As expected, the ACP did not bother to provide me either the complaint or his inquiry report. I don't expect anything better from the BARBARIC TOTALITARIANISM that India is rapidly turning into.
India is no longer a free country. There is no law of limitations for such matters (this is a 2 ½ year old blog post!). And in India it seems that anyone powerful can complain and get a favourable decision WITHOUT providing any reasons. No copy of the complaint or investigation needs to be provided to the person complained against. No speaking order needs to be issued. The decision is made in private. An order is issued. The power of the state is misused at whim. Non-compliance is punished through severe harassment.
What does all this look like to you? Is this the action of a constitutional liberal democratic republic? Is this the action of a country for the freedom of which thousands lost their lives?
This law has undone India's ENTIRE FREEDOM MOVEMENT. But you were happy to use this law.
Back to the substantive content of my blog post
Remember, you started the ball rolling across the WORLD by making your injudicious and grossly offensive remarks regarding 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 comments were of GLOBAL importance. The whole world read your comments and a visceral sensation of disgust ensued across the world.
Note that you are an honorable man. You are a high official in India. You are trained in law, your whole life revolves around justice. You made an OFFICIAL comment after much consideration and much thought.
In comparison, I am nobody. A former IAS officer who left in disgust at India's TOTALLY CORRUPT system. I express my disgust through my writings (and my blog since mid-2010). In comparison to your well-thought out comments and remarks, I write my blog posts in minutes. 10 minutes mostly. I say what I have to say the first time around. I don't edit for spelling mistakes or grammar [sometimes I may (but that's often after a few days, and very rate)]. I say what I have to say, then push the “Publish” button, and move on. That’s how blog posts are written. These are opinions shared with the FEW readers who may wish to engage in debate/discussion on my blog – and who may wish to correct me if I’m wrong. I always welcome debate.
The word ‘blog’ comes from "web log" – a diary kept publicly on the web. And just like one doesn’t take hours to write a diary entry, so also a blog post is the creation of instantaneous thought, warts and all. This is how the blogsphere works. A place for the expression of PERSONAL OPINIONS.
In my blog post I objected to your citing China. I said what I had to, and moved on.
The crux of my comment in the blog was an appeal for your impeachment since I felt (and still feel) that you are unfit to be a judge in my FREE India. That’s an opinion I will continue to hold unless you are able to persuade me – through reasoning – why Chinese totalitarian laws must be applied to India. 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. Even these people should have total freedom. But these are ordinary people going about their ordinary business and forming and expressing opinion in a matter of seconds, minutes.
Such ordinary 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 in the streets, who create revolutions, even leave India in search for a country they can live in, in freedom and peace.
China doesn’t have democracy. They don’t care about the People of China But India does care about the People of India. Those who created draconian laws should be shown their way out through the hustings. We have the power to debate our laws and change them. China can’t.
Dear Justice Kait, you cannot stop someone from forming a poor opinion about what you or anyone else says. Some people have a poor opinion about me. Go to the internet and you’ll find proof. I don’t chase after such people for holding (and publicly expressing) an opinion about me or my work. You or I cannot control the minds of people. We should not even 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 will continue to oppose your view. No matter how many legal notices you send me, you can NEVER control what goes on inside my head.
I am quite surprised that my comment even came to your notice. I am one of hundreds of millions of people across the world who read about your obnoxious opinion. Most people probably formed a much worse impression about your views than I did. Are you aware that MANY of these people commented adversely on your views – independently of me? I cite only two of them (I quickly searched the internet and located these, but there would surely be hundreds of other such adverse views).
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. The second: 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 (and definitely, at the time of writing, had almost no audience). 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!
No Indian likes taking advice from totalitarian China.
I’m posting these comments here since these opinions are (as of date) still operating freely, without your having gotten them pulled down.
People migrate to free countries, not unfree countries. While you are welcome to migrate to your favourite country, China, how many Indians that you know have done so? Most Indians go, instead, to the USA, UK or Australia, which are havens of freedom and free speech in comparison with India. People want FREEDOM, not OPPRESSION. Indians are leaving India, as explained in my book, Breaking Free of Nehru, from the country with one of the world’s lowest levels of freedom 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 out against atrocities committed by the government. At least we don't (yet) do that in India. Let us be grateful for these small mercies.
The Indian Constitution was intended to protect free speech rights but these have been significantly truncated over the years. I disagree viscerally with most restrictions on free speech now imposed by destroying the foundational character of 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. A current entry in 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.”
Now compare your statement with what these judges said. Imagine the deplorable, anti-liberty message you are sending to Indians – that should they hold an ‘inconvenient’ opinion, that opinion can be expunged. Even if it a mere personal blog.
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. I hope you will change your mind after reading this.
My opinion is a philosophical and political opinion – with all the more reason for its protection. I am deeply 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 extreme, it is not. It is the essence of liberty. The right to say something offensive, to even express bigotry – non-violently – is the basis of all civilisation. If all one is allowed to say are pleasantries, then what ‘freedom’ is involved? That’s merely doctored speech. Politically correct speech. That’s merely manipulated speech.
Holding an OPINION – no matter how offensive – cannot be grounds for a criminal offence. The way to resolve differences in opinions is through discussion and debate, not coercion.
Please note that I insist that all free speech be non-violent. There must be no threat of violence in the speech. Then the rest is fine. The usage of the language is irrelevant. Ad hominem attacks are part and parcel of opinion. After all, there’s a human being trying to get a point across.
You chose to use force even when I did not say ONE word that was violent or threatening. That was very wrong. In matters of human rights we ought to aspire to the best in the world, not to the worst. I want India to be a Sone Ki Chidiya, the world's best, not the world's most rotten nation (which it is close ot becoming).
In my opinion you also disgraced the great Indian tradition of tolerance and free speech.
In any event, 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. Please read the following extracts from the debates in India's Constituent Assembly, in which some of the greatest freedom fighters of India fought vigorously for freedom of speech. You may learn something from them. At least that we are NOT China.
I would normally end by sending you warm regards (after all, you are a judge, and judges are intrinsically respectworthy) but I find myself unable to do so, since you have taken recourse to the use force, not debate.
I invite you to do something worthy of my regard, for then I'd be most happy to send you my warm regards in the future. I retain a hope that you, too, will join me one day in the fight for FREEDOM in India, to take this godforsaken nation to its highest potential.
18 October 2014.