'Unsited' by the law

The arrest of e-Bay subsidiary Baazee.com's CEO Avnish Bajaj for the sale of pornographic material on the virtual auction site proves once again that the law is an ass.

To be sure, Section 67 of the Information Technology Act, under which Mr Bajaj has been arrested, does unambiguously provide for imprisonment (which may extend up to five years) on the first conviction and a fine that may extend up to Rs 1 lakh.

But Mr Bajaj's arrest and subsequent denial of bail""which Section 67 does not stipulate anywhere""suggest that the economic offences wing of the Delhi police is following the letter of the law rather more zealously than its spirit.

At the most Baazee is guilty of poor due diligence, for which a stiff fine would have sufficed. Also, as several lawyers have pointed out, the material question here is the intent, and in Baazee's case it cannot be described as mala fide.

For one, the site requires all users to sign an agreement not to sell pornographic material and Baazee can hardly be held responsible if a customer chooses to willfully violate it.

For another, Baazee did take remedial action by removing the clip from the site as soon as it was informed. Third, Mr Bajaj cooperated fully with the police, flying down from his headquarters in Mumbai in response to a notice asking him to join the investigations.

The Delhi Police's action suggests that law enforcers should establish reasonable limits on the degree of responsibility for an institutional offence. Should Sunil Mittal of Bharti also be arrested since the MMS clip was transmitted on the network of the company he heads?

By the same token, should the principal of the school where the clip was filmed be arrested since the activities allegedly took place on the premises? Extending the logic still further, should the municipal commissioner of Delhi be arrested if pornography is sold on the city's pavements?

Some may argue that Baazee's case is no different from the position of any managing director who is liable to prosecution if a company's accounts are not filed with the registrar of companies or the company reneges on fixed deposit payments.

The point here is that the law specifically pins these legal responsibilities on the designation. Section 67 of the IT Act does not stipulate precisely who should be arrested for publishing obscene information.

If the objective is to use the Baazee case as an exemplary deterrent, the economic offences wing has probably done the correct thing in arresting the schoolboy who was responsible for selling the clip on the site.

Modern technology is making it increasingly difficult for parents and guardians to control children's access to pornography. Avnish Bajaj shouldn't be made a scapegoat for that.