Prashant Bhushan

rodeoz

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About the lad who tells me that freedom of speech is absolute in USA - Go read beyond wikipedia. USA has some of the most stringent libel laws (which will not exist if freedom of speech is absolute).

blr_p:

"Key point to make wrt to child porn is whether a child is being abused in the process. Otherwise its just art." - Hope you realise the difference between nude paintings of children and soft child porn. Soft child porn is when people exchange nude pics of children/view them and this serves as a medium of erotica for them. If you are all for soft child porn. I am sure you would also be amongst the crowd that feels that sex is just a need of the body and can be satisfied by anyone - be it your mother, sister etc? So you advocate incestuous relationship and bestiality as well? If yes, there is no point arguing. Even USA does not allow any of the three. Can only exist in your wonderland. If no, I can blame the answer in the negative to culture the "bitch" which has evolved you into a person with pre-conceived notions of what is right and what is wrong. Got it? Every demand of right by 'X' may not be approved/liked/appreciated by 'Y'.


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Btw, there is a ton of information in your comment which is formed due to partial study of a topic. Won't pinpoint each and every one of them as neither do I have time to enter into a cyclic argument, nor to explain how law works in detail.

"So no, the founding fathers were liberal, but we have a tendency in this country to add all sorts of amendments since." - Ever heard of family laws in India? And the absence of a Common Civil Code? Why did our founding fathers make provision for religion based family laws in a secular nation? Because they felt that the society was not ready to accept a Universal Civil Code at that time. Laws evolve. That is the reason Uniform Civil Code was placed in DPSPs - so that future government may implement it when the time is ripe. Constitutions are dynamic. That is the reason why there are provisions for amendment. Laws reflect what the society needs. And this is a basic thing that you fail to understand time and again.

"I would argue the opposite because as you say we have so many conflicting interests then the chances of ppl to be offended multiplies significantly and its very easy for any tom, dick & harry to complain that he is being offended. Tell them to grow the fcuk up. Get rid of this 'right to be offended'." - 'X' won't be offended if I tell him that his mother is a whore? Who decides what is a valid reason to get offended? You? Time and again you do not realise what I am trying to say - it is NOT you who decides what is right and what is wrong, but the society. There is something called "gravity of an offence". So no tom, dick and harry can get offended for anything. There is a test of reasonableness that courts apply.

"Of late i notice this ticker thread on some of the movie channels that says if you feel 'offended' by this program then contact the I & B ministry and make a complaint." - Even USA has a television regulatory authority which decides which program are fit for prime time viewing and which should go out. Regulation exists in USA as well - in both movies and television. The regulation is much more liberal than in India but the very existence of a regulatory body negates your "Why the **** do we need regulation" theory. There was a capitalist idea in the early part of the 20th century which stated that "Markets can regulate themselves" - this lead to the Great depression and highlighted the point that some amount of regulation is necessary. How much is needed depends and varies from country to country.

"Burning books & smoking weed are not the same thing. One is freedom of expression the other is advocating for freedom to consume a controlled substance. False comparison." - Why false comparison? It is the freedom to choose what I consume? I am comparing one freedom with another. Unless you feel that comparisons have to be narrowed down to suit your argument!

"Can you provide sources for your explanation of why charges were dropped against Roy ?" - I do not work with the Delhi Government but here is a link - http://ibnlive.in.com/news/govt-unlikely-to-take-action-against-arundhati/133814-37-64.html

"Passive provocation isn't the same as aiding & abetting." - Who said it is? Don't put words in my mouth. Read again what I wrote.

"Arousing passions is one thing, acting on them another. Do you not see the difference ?" - The former facilitates the latter.

"Provocation is not an argument for a lighter sentence in my books." - The country runs according to the IPC and NOT your "book". Provocation is a valid excuse in almost all criminal law systems. Don't quote vague examples of a cricket match. I clearly mentioned that circumstances can result in an ordinary statement provoking people. Clearly not EVERY circumstance will qualify!


I can go on and on but I will be wasting my time. Either my English is bad or you are willingly choosing to comprehend what I am saying in another manner. In any case, I am out of this argument.
 

dovahkiin

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About the lad who tells me that freedom of speech is absolute in USA - Go read beyond wikipedia. USA has some of the most stringent libel laws (which will not exist if freedom of speech is absolute).
.

hmm am no lad , dude :p am planning on getting my law degree from states very soon . and if you are quoting from wiki god help you.

here just read the 1st para , if you are a lawyer , i hope you can understand the rest.

First Amendment | LII / Legal Information Institute

yes states has strong libel laws, but the onus as i said in my earlier post is on the one who takes a objection to it, he is the one who has to prove in court that libel or defamation did happen. i.e is why 1st amendment was passed to stop federal govt from inferring in that right, i can cite numerous decisions by supreme court of sates as well as federal and circuit courts upholding it and that is why google is here you can just google them up , i hardly jump into political debates on webz .


p.s my advice go back to law school \0
 

blr_p

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rodeoz said:
blr_p:

"Key point to make wrt to child porn is whether a child is being abused in the process. Otherwise its just art." - Hope you realise the difference between nude paintings of children and soft child porn. Soft child porn is when people exchange nude pics of children/view them and this serves as a medium of erotica for them. If you are all for soft child porn. I am sure you would also be amongst the crowd that feels that sex is just a need of the body and can be satisfied by anyone - be it your mother, sister etc? So you advocate incestuous relationship and bestiality as well? If yes, there is no point arguing. Even USA does not allow any of the three. Can only exist in your wonderland. If no, I can blame the answer in the negative to culture the "bitch" which has evolved you into a person with pre-conceived notions of what is right and what is wrong. Got it? Every demand of right by 'X' may not be approved/liked/appreciated by 'Y'.
I stick with my earlier statement - can an argument be made to show the child was abused in the process. Given child abuse is illegal. About the bolded bit can you cite any cases where someone was prosecuted in the US for exclusively having soft child porn. I'm not up to speed on these sort of cases but i'm guessing harder stuff was found as well. So it would be difficult to test this unless you have some cases already.

I did not say or imply anywhere that i was 'all' for soft porn or any of the other topics you mentioned. i asked can the argument be made. You need to do that first isn't it. If you take a picture of a child in a suggestive pose does that necessarily imply the child was abused.

What about the privacy angle ? is a child entitled to privacy as an adult would be. Constitution offers privacy to the citizens, a child is a citizen. So i think you'd have a privacy argument here already and this argument is a rational one and has nothing to so with what you feel about the subject of child porn to begin with.

rodeoz said:
Btw, there is a ton of information in your comment which is formed due to partial study of a topic. Won't pinpoint each and every one of them as neither do I have time to enter into a cyclic argument, nor to explain how law works in detail.
Yeah, see i've lived abroad and when i got here i saw all these things happening and asked WHY, and slowly i got pointed in directoins and arrived at the answer of WHY these things happen here. I wasn't satisifed with the standard format reply - this is how it is here or this is how indian society is like which does not tell me much.

Now i understand very well how the law works given the numerous cases that have been launched over the years to intimidate people. I'm acutely aware of the consequences of allowing the addition of Article 19 (ii) into the consitiution and blame the morons that allowed its inclusion. That formed the basis to frame any number of idiotic laws because one could now point to the constitution and not worry about the SC revoking it. The basis of those laws would be 'taking offence'.

Therefore what i've said here is a critique of the present system. Its an opinion that's been formed over the years by lots of debate on the subject. MF Hussain ? why was he hounded out of the country, on the basis of his paintings. He has cases filed against him for all sorts of reasons. He chose not to fight them and as a result handed a victory to intolerance. What i'm against is how easy it was to file these cases in the first place in this instance or any other.

And i can tell that by the substandard tv debates that occur on the subject from time to time. People do not understand what freedom of speech entails and therefore are ignorant as to how the current laws impinge on their freedoms. Upto now i've yet to hear Article 19(ii) being called out on tv, is it prohibited to criticise the constitution on public tv ? Because thats the heart of it, thats where we had our freedom curbed for a reason that beggars belief. You cant advocate murder in the US but that isn't an excuse to allow ppl to stop anybody they want because their 'feelings' were offended.

rodeoz said:
"So no, the founding fathers were liberal, but we have a tendency in this country to add all sorts of amendments since." - Ever heard of family laws in India? And the absence of a Common Civil Code? Why did our founding fathers make provision for religion based family laws in a secular nation? Because they felt that the society was not ready to accept a Universal Civil Code at that time. Laws evolve. That is the reason Uniform Civil Code was placed in DPSPs - so that future government may implement it when the time is ripe. Constitutions are dynamic. That is the reason why there are provisions for amendment. Laws reflect what the society needs. And this is a basic thing that you fail to understand time and again.
I dont think freedom of speech has anything whatsoever to do with which community one comes from.

You're offering a general argument here and using the example of UCC which is fine, but UCC is a lot more contextually dependent on societal norms than freedom of speech. I would not commingle the two.

rodeoz said:
"I would argue the opposite because as you say we have so many conflicting interests then the chances of ppl to be offended multiplies significantly and its very easy for any tom, dick & harry to complain that he is being offended. Tell them to grow the fcuk up. Get rid of this 'right to be offended'." - 'X' won't be offended if I tell him that his mother is a whore? Who decides what is a valid reason to get offended? You? Time and again you do not realise what I am trying to say - it is NOT you who decides what is right and what is wrong, but the society.
Who decides what is a valid reason to be offended ? my answer : NOBODY! Being offended should not be a pretext to get the state to lock anybody up. This is pretty much how it works in the US. You CANNOT legislate on the basis of emotions.

Otherwise anybody can and often does claim in this country they were offended. if the law supports them then this behaviour will continue otherwise it will not. Because it will be made pretty clear you cant go whine to the govt everytime somebody hurts your feelings.

There is also a maxim that states 'the needs of the many outrank those of the individual'. What this does is subjuguate the individual to the whims of society. I consider both the individual & society to be as important and not one subordinate to the other. Is that radical thinking in indian society cos it should not be. They clearly value individuals more over there than over here, small wonder they progressed as much.

rodeoz said:
There is something called "gravity of an offence". So no tom, dick and harry can get offended for anything. There is a test of reasonableness that courts apply.
ok, but how long does it take to get a result out of these cases ?

What are the chances of success when constitution already makes it clear that the one filing the complaint has the upper hand. Nobody will chance it. Nandy was lucky because a lot of eminent personalities signed a petition on his behalf.

Will the avg citizen have such luck ? i don't think so. Take the Modi cartoon recently, somebody launched a complaint against the cartoonist, he got jailed but then got out on bail. I'm not sure as to what the status of that case is. There seems to be no reporting of it that i can find.

rodeoz said:
"Of late i notice this ticker thread on some of the movie channels that says if you feel 'offended' by this program then contact the I & B ministry and make a complaint." - Even USA has a television regulatory authority which decides which program are fit for prime time viewing and which should go out. Regulation exists in USA as well - in both movies and television. The regulation is much more liberal than in India but the very existence of a regulatory body negates your "Why the **** do we need regulation" theory. There was a capitalist idea in the early part of the 20th century which stated that "Markets can regulate themselves" - this lead to the Great depression and highlighted the point that some amount of regulation is necessary. How much is needed depends and varies from country to country.
Yes, and one could also make the arguement that for the first forty years since independence we have had an excess of regulation which resulted in our bankruptcy in the early 90s. The 'commanding heights of the state' was the mantra.

How much regulation is the big question, too much and it stifles and too little and we we end up with the sub-prime mortgage crisis.

I was referring to movies that come on at night, funny thing is they repeat those same movies during the day as well, so i'm not sure what rules are being followed here as far as cut off times and content of program is concerned.

rodeoz said:
"Burning books & smoking weed are not the same thing. One is freedom of expression the other is advocating for freedom to consume a controlled substance. False comparison." - Why false comparison? It is the freedom to choose what I consume? I am comparing one freedom with another. Unless you feel that comparisons have to be narrowed down to suit your argument!
Well its better to compare like with like isn't it. I gave the example of burning books in the US as an example of freedom of speech and compared with the situation here.

rodeoz said:
"Can you provide sources for your explanation of why charges were dropped against Roy ?" - I do not work with the Delhi Government but here is a link - http://ibnlive.in.com/news/govt-unlikely-to-take-action-against-arundhati/133814-37-64.html
ok, then the Roy case isn't an appropriate sedition test any longer. The other case you mentioned invovled 'incitement to armed revolt'. Thats a bit more than what Roy did.

So i'm still of the opinion that talking about sedition does not equate with committing sedition unless you have other cases to offer to back your position. Yes i know that extract of the penal code you offered is very wide ranging but has it been tested in court yet ?

rodeoz said:
"Passive provocation isn't the same as aiding & abetting." - Who said it is? Don't put words in my mouth. Read again what I wrote.
You said 'passive provocation or involvement', yes i highlighted what you said. You used the word 'OR' therefore there is no problem in seperating the two is there.

rodeoz said:
"Arousing passions is one thing, acting on them another. Do you not see the difference ?" - The former facilitates the latter.
If one is not openly advocating riot or murder then WHAT is being facilitated here ?

It can in some people but not in others, why should the person doing the talking be held to blame. Lowest common denominator thinking at play here isn't it.

If it was not explicitly stated i think there should be no case. Hopefully your resonable test will apply here. But i would prefer a stringent test.

rodeoz said:
"Provocation is not an argument for a lighter sentence in my books." - The country runs according to the IPC and NOT your "book". Provocation is a valid excuse in almost all criminal law systems. Don't quote vague examples of a cricket match. I clearly mentioned that circumstances can result in an ordinary statement provoking people. Clearly not EVERY circumstance will qualify!
An excuse to do what is the question ?

Question still stands, should the guy get a lighter sentence for committing murder because he was 'provoked' ?

rodeoz said:
I can go on and on but I will be wasting my time. Either my English is bad or you are willingly choosing to comprehend what I am saying in another manner. In any case, I am out of this argument.
There is no problem with your english, you are stating it as it is. I'm arguing why i think 'what it is' is not up to scratch.

See, its rather rare to be able to do that, most of the time we struggle to understand what the law even means, then its a question of applying it. What i'm doing here is a step beyond that and questioning whether these laws are reasonable to begin with.

You mean to tell me you've never wondered whether a law was reasonable or not and had an opinion of it.
 


Samuel

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Anna's team should understand that they should follow Indian Politicians when it comes to conduct in public.Seriously, is it really required to publicize your opinion on each and every topic?Politicians won't even open their mouth when they are actually required to, MMS is a good example I suppose?
 

Jaymin

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Now thats the difference between a CUNNING Politician & an INNOCENT citizen. An innocent citizen, no matter how much he tries, loses his cool at some point & speaks up.
 

blr_p

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Nah, its about staying relevant in a 24/7 news cycle. Got to say something otherwise you do not matter any more.TA is being media savvy and the dumb media desperate for something will play right into it.
 


Jaymin

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Nah, its about staying relevant in a 24/7 news cycle. Got to say something otherwise you do not matter any more.

So, how much Mr. Manmohan Singh matters? How much Mrs. Antonia Maino matters? Both of these are as silent as ever.
 

amish

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Oh well they are the judges of the country, whatever they say is truth which does not require a proof. No arguments on their statements allowed.
 

rodeoz

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hmm am no lad , dude :p am planning on getting my law degree from states very soon . and if you are quoting from wiki god help you.

here just read the 1st para , if you are a lawyer , i hope you can understand the rest.

First Amendment | LII / Legal Information Institute

yes states has strong libel laws, but the onus as i said in my earlier post is on the one who takes a objection to it, he is the one who has to prove in court that libel or defamation did happen. i.e is why 1st amendment was passed to stop federal govt from inferring in that right, i can cite numerous decisions by supreme court of sates as well as federal and circuit courts upholding it and that is why google is here you can just google them up , i hardly jump into political debates on webz .


p.s my advice go back to law school \0


Will advice you to pursue your studies soon for you are not sounding very intelligent here. "Absolute" means having no exception, legally.

Read the exceptions to the First Amendment - First Amendment Lawyer - Basic First Amendment & Censorship Information and scroll down to where it is mentioned - "Is all speech protected? ". A regular google search will throw up the same and even take you to court cases where things like the "Miller" test have been deduced.

[Forget that link. Even the link YOU quoted mentions the limitations on the freedom of speech - "The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action, fighting words, commercial speech and obscenity."

Clearly shows that there do exist circumstances where your speech can be curtailed. I have said before, the exceptions are more liberal than India but they DO EXIST. Thus the right is not absolute. For that matter, no right in the World is absolute. With right, comes responsibility and that responsibility is laid down by the statute.]

"but the onus as i said in my earlier post is on the one who takes a objection to it, he is the one who has to prove in court that libel or defamation did happen." - This is the basis in EVERY legal case. The onus to prove something is ALWAYS on the one who alleges. Have you not heard of "Presumption of innocence"? If I were to file a case of sedition against Roy, the onus to prove that she did make a seditious statement lies on me, NOT her. This does not mean that the law becomes absolute. Don't cite the very basic legal principle and try to make it appear to be libel specific. If freedom of speech was absolute there can be no penalty for what you speak - in civil or criminal trials.

In 2006 the US legislature tried passing the "Flag Desecration Amendment", but it failed by one vote (this is protected by the first amendment). Even till this day the government is mulling a constitutional amendment. You think the US has never banned a book? Enlightenment time! There have been a few. Most famous example was a book called "Tropic of Cancer" written by Henry Miller which was banned by the US Government. This was later overturned by their Supreme Court but the ban did exist for a long time. In another famous case, Miller v California, the question before the court was whether the sale and distribution of obscene material was protected under the First Amendment's guarantee of Freedom of Speech. The Court ruled it was not. It indicated that "obscene material is not protected by the First Amendment". The court went forward to lay down a definition of obscenity. A number of laws were passed by States after this case, including laws regulating/banning "public nudity", "strip-clubs", "adult-theatres" etc. Thus USA has its own set of restrictions. Some of them have been turned down by the Court while others do exist.

When you call something "absolute", it admits no exception whatsoever.

blr_p:

1) A child's rights are vested in his/her guardian. The guardian often gives permission to publish naked photographs of the child for advertisements - diapers etc
Now if 'X' starts an online group and people enter that to discuss that child as a sex object or someone mentions how wonderful it was to masturbate to that pic, is that to be allowed? This is what "soft-porn" is. I am not an expert on US laws but in New York v Ferber the court held that child pornography need not be legally obscene before being outlawed.

Now I have three questions for you, two of which you have repeatedly ignored to answer:

a) Do you think setting up of the online group should be permitted? The child is not being abused. The privacy laws vest in the guardian and he had made a nude pic of the child public. This is what a few people advocate. I am not saying you do, but I am asking your opion on whether you would have banned the group if you were a judge/legislator and on what counts?

b) Do you think bestiality should be legalised? If we can eat an animal against its will, why can't we use it for sexual pleasure as long as the animal is not being tortured or hurt.

c) Do you think incestuous relationships should be accepted by a liberal individual? Sex, after all, is a need of the body. It is culture that has told us that some relationships are sacrosanct. How about looking beyond culture?

2) I quoted the Uniform Civil Law example to highlight that laws "evolve". When a society can not accept secular family laws, do you think it will accept burning of religious books? This is why the two are related and this is why Freedom of Speech is itself an evolving concept and can not be forced until the society is ready.

3) The society decides what is offensive through its representatives in the Parliament. It is understood that the representatives will not listen to every tom, dick and harry but reach their conclusions judiciously. Even in USA, things that were potentially offensive - defamation, obscenity etc, were decided indirectly by the society. Every legislation in a democratic nation is the societal view.

4) I stated that in Kedar Nath case the question whether passive provocation could amount to sedition was left unanswered by the Court. I am not saying Roy is guilty. It is for the Courts to decide that. But neither can anyone else answer what the Court chose not to comment upon.

"This is a concrete saying that Kashmir is not an integral part of India and that is a secessionist statement. That is a statement that undermines the concept of Indian nationhood so far as Kashmir is concerned." (view of Mahesh Jethmalani)

This is what Roy said - "Kashmir is not an integral part of India" - and noted lawyer Mahesh Jethmalani stated that this is a secessionist statement. Thus this is some merit to a case against Roy. The Court may eventually rule in Roy's favour but to say that no case could possibly have been made against Roy under the existing laws is flawed in my opinion. It is a different thing if the case could have been strong or weak.

5) I said "passive provocation or involvement". This meant that most laws consider dual participation - passive and active. I do not intend to say that both are the same thing. This is the reason why I pointed earlier that my statement seemed to have been wrongly construed.

6) "Question still stands, should the guy get a lighter sentence for committing murder because he was 'provoked' ?" - The answer is "Yes". Provocation is a valid excuse in most criminal law systems. That the provocation was sufficient to enable it to become an exception to an offence has to be decided by the Court taking into consideration the facts and circumstances of a case.

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I said before that I am out of this argument. But had to respond because one future 'Fali S. Nariman' (133t) decided to teach me what law is!

Anyway I hope my answers satisfy 133t and also the questions raised by blr_p. If not, I choose not to respond to more questions that may emerge as the argument is only going in circles.

Good day, everyone. Nice arguing!
 

hitman

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Somehow I never liked these Bhushan bros .. They r well known for filing the PIL against the govts and blackmailing them ..I feel Anna's team has got these 2 member wrong .. They should have been kicked out a long time back ..Regarding beating up of one of the bhushan brother.. I would say I don't care .. Doesn't matter if the attackers were sent by congress or bjp ..One request to tht Ram sena or bhagat sing sena guys .. Pls kick tht Arundhati roy also ..