As is now becoming clear, Delhi Police has bitten off much, much more than it can chew in arresting Avnish Bajaj, country manager of Baazee.com. Its “act now-think later” investigation into the MMS sex scandal is even ballooning into a diplomatic incident. As things stand, the Bajaj case could completely overshadow the initial crime — that of a delinquent schoolboy who used his camera phone to record a sexual act with a female classmate. It could become a landmark in the evolution of cyber-law in India. The case opens up questions of the process of criminal justice, of — in the context of the Information Technology Act of 2000 — a specific law itself and, in the larger domain, of what we mean by that amorphous, catch-all phrase called “liberalisation”. 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 “yes” 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.com’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.com’s users operate on the principle of trust. Indeed, trust is capitalism’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 world’s largest cyber-auction site and Baazee’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 ‘Delhi girls having fun’. At 10.00 am on Monday, November 29, another Baazee.com user e-mailed a complaint — using a procedure that appears on the website — 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 — somebody outside the ambit of Baazee.com — 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 — 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 “cyber-sleuths”. The team leader was so “Internet savvy”, he “checked e-mail everyday”! Finally, on December 17, nine days making contact with Baazee.com’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 didn’t know about the transmission or exercised “due diligence” 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 didn’t exercise “due diligence”. Fair enough, but consider these logical absurdities: • 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, Airtel’s CEO. • Extend the idea to the real world. If a shop in Delhi’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. • Many newspapers in Delhi carry ads for massage parlours. Some of those hiding behind the mask of “therapeutic masseurs” 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 “poverty alleviation”. 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.
