The Thanedaar State

The case opens up questions of the process of criminal justice, of 8212; in the context of the Information Technology Act of 2000 8212; a specific law itself and, in the larger domain, of what we mean by that amorphous, catch-all phrase called 8220;liberalisation8221;.

Begin with a recap.

Baazee.com is an Internet-based marketplace. It is a facilitator that allows buyers and sellers to meet in cyberspace and do deals. If I have a used shirt to sell, I open a free Baazee.com account, register myself as a seller, agree not to offer pornography or weapons or anything illegal and then list my product.

The agreement I click 8220;yes8221; to is similar to the agreement I promise to adhere to with Hotmail or Rediffmail before opening a free e-mail account. It is an everyday affair.

Neither the potential buyer nor Baazee.com8217;s managers can see or view my product. Nobody can try on the shirt before paying for it. They can only read my description.

This is true for audio/video products as well. If I want to sell an audio clip of my nephew reciting a nursery rhyme, I simply describe it in one sentence. A potential buyer, or anyone on the website, cannot hear the clip before he pays for it and I send it to him.

When the deal is done, Baazee.com sends the seller a bill, asking for its commission. If the buyer complains that the product did not match the description, Baazee.com reverts to the seller and asks him to explain; or blocks further transactions.

Like much on the Internet, Baazee.com8217;s users operate on the principle of trust. Indeed, trust is capitalism8217;s chief currency. When you buy a packet of Tata Tea, you expect Tata Tea, not coffee or, for that matter, dust.

Baazee.com is not unique. Its methodology is no different from e-bay, the world8217;s largest cyber-auction site and Baazee8217;s American parent company.

At 12.35 pm on Saturday, November 27, a Baazee.com user registered a new product. He promised a CD, describing it as 8216;Delhi girls having fun8217;. At 10.00 am on Monday, November 29, another Baazee.com user e-mailed a complaint 8212; using a procedure that appears on the website 8212; saying this clip was actually the infamous MMS involving two Delhi school pupils. Immediately, further sales were stopped.

By then, eight people had bought the clip. They had not been able to see it on Baazee.com, having been able to only read the description. If they still decided to pay for it, two inferences were possible. First, they were plain curious. Second, somebody else 8212; somebody outside the ambit of Baazee.com 8212; had told them this was actually the DPS clip, either by word of mouth or e-mail or a phone call.

Life now returned to normal. Then, on December 9, a Delhi tabloid announced the MMS clip had been on sale on Baazee.com. A Delhi Police team contacted Baazee.com. On being asked, it provided details of the one seller and eight buyers. These nine were in trouble, guilty of buying or selling child porn.

Delhi Police dutifully registered cases, arresting the one seller 8212; an IIT Kharagpur student. Do note that none of this happened because of some heavyduty and arcane detective work. It happened simply because Bazee.com handed over a printout with nine names and addresses.

Yet Delhi Police decided to take undue credit. One puerile newspaper report described the police squad as 8220;cyber-sleuths8221;. The team leader was so 8220;Internet savvy8221;, he 8220;checked e-mail everyday8221;!

Finally, on December 17, nine days making contact with Baazee.com8217;s managers, Delhi Police arrested Bajaj.

The arrest was based on a perverse and particularly limited reading of the Information Technology Act, 2000. The Act holds service providers guilty for transmission of unlawful text or other data through their network. They can get away only if they prove they didn8217;t know about the transmission or exercised 8220;due diligence8221; but still failed to stop it.

Baazee.com says it stopped transactions on the sex clip as soon as it was told. Delhi Police says it didn8217;t exercise 8220;due diligence8221;. Fair enough, but consider these logical absurdities:

8226; I use an Airtel mobile connection. If I send a lewd SMS to a lady or a threatening text message to anybody, the police must arrest not just me, but also Sunil Mittal, Airtel8217;s CEO.

8226; Extend the idea to the real world. If a shop in Delhi8217;s Palika Bazar sells porn, arrest the shopkeeper and his landlord. If he has a lease agreement with the New Delhi Municipal Council, which built Palika Bazar, arrest the NDMC chairman, too.

8226; Many newspapers in Delhi carry ads for massage parlours. Some of those hiding behind the mask of 8220;therapeutic masseurs8221; are prostitutes. Delhi Police has even busted a few such rackets. Should it now arrest the owners and editors of the newspapers?

There is a broader point, too. Do we see reform as just a narrow economic process or one that involves changing mindsets, less regulation, enlightened law? Can a Web-based economy coexist with Weberian bureaucracy?

We have a government committed to manic public spending, all in the name of that bottomless pit called 8220;poverty alleviation8221;. This statist world view has another side. The mai-baap state goes hand in hand with the thanedaar state. If paternalism comes, the policeman follows.

For Avnish Bajaj, it must be a sobering thought.