Now that Avnish Bajaj, the CEO of Baazee.com, has been released on bail, let’s try and make a dispassionate study of the arrest that caused so much dismay in the corporate world. Despite their outrage at Bajaj’s four-day detention, corporate honchos seem uncertain over who is to blame for it. Was it one more glaring example of police highhandedness? Or, was it actually an unavoidable consequence of the law?A close examination of the law in question — Information Technology Act 2000 — shows that the police did not do anything out of the ordinary in arresting Bajaj. On the face of it, the case falls squarely under Section 67 of the IT Act which imposes a stiff penalty of imprisonment up to five years on anybody who transmits any pornographic material in electronic form. Though there is already a general provision against pornography in the Indian Penal Code, the IT Act contains this special provision as a part of the legal framework created by it for the emerging e-commerce. It was a signal to all Internet operators that they would have to take special care to ensure that their sites do not peddle pornography.At the same time, the lawmakers made allowance for the fact that not all operators can exercise the same degree of control over their sites. The IT Act recognises the reality that the extent to which an operator can exercise control depends on the nature of his site. Somebody who is purely a service provider, such as Baazee.com, would have little control over what is sold. Given this inherent constraint, Baazee.com does little beyond making the sellers undertake that they would not use the site for peddling any illegal stuff, including smut. A content provider, on the other hand, would be able to take greater responsibility as it is feasible for him to vet any article before it is put on the website. A news portal is a common example of a content provider.So, making a clear distinction between the two kinds of providers, the IT Act exempts service providers from liability for “any third party information or data” in certain cases. Section 79 stipulates that no service provider shall be liable if he “proves” either of these conditions: that the offence was committed without his knowledge or that it happened even after he had exercised all due diligence. To be sure, any service provider booked under the Act will try to take refuge in either or both these conditions. But he can get off the hook only if he succeeds in proving his claim. And, in the normal course, he will get his turn to prove his innocence only in the course of the trial.The implication of all this is that the police were very much authorised to arrest Bajaj as the head of the service provider that offered to sell copies of the CD containing the offending MMS. At the current stage of investigation, they are entitled to disbelieve Bajaj’s protestations of innocence. When he sought bail before the Delhi High Court, the police made much of the 38-hour delay on the part of Baazee.com in removing the CD from the site even after it had been informed that the CD displayed child pornography.In the event, the High Court granted bail to Bajaj holding that the evidence “indicates only that the obscene material may have been unwittingly offered for sale on the website.” This prima facie observation or oblique reference to Section 79 does not, however, mean that the High Court has pre-judged the case in favour of Bajaj. It only means that, given the nature of the case, the High Court is convinced that there was no need to detain Bajaj beyond the four days he had already spent in custody. He has been released subject to the condition that he would continue to cooperate with the investigation and not leave the country without the trial court’s permission.At the end of their investigation, the police may come round to the view that Baazee.com’s role was entirely innocent and decide not to press any charges against Bajaj or any of its employees. If the police decides otherwise, the courts may, depending on the evidence adduced against him, discharge him before the trial or acquit him at the end of it. In none of those scenarios, nothing can really compensate Bajaj for the detention already inflicted on him. And whatever the ultimate outcome of the case, it will not detract from the legality of his recent detention.His arrest was also based on the general principle, embodied in Section 85 of the IT Act, that when an offence is committed by a company, the persons in charge of it are liable to be proceeded against. There may well be scope to make the Act kinder than it already is to service providers as opposed to content providers. But any objection to the very arrest of Bajaj amounts to undermining the rule of law, which includes the principle of equality.
