Free Speech Issues in India 2010

Free Speech Issues in India 2010
Selections from the Free Speech Hub on TheHoot.org
Summary In the first-ever daily tracking of the state of freedom of speech and expression in India, the Free Speech Hub recorded 27 attacks on journalists, nine arrests or detention of journalists on various charges, six instances of attacks on writers and civil liberties activists, three cases of sedition against writers and civil liberties activists, 33 instances of curbs by vigilante groups on books, cinema, television shows, mobile communication or theatre performances and instances of State or judicial restrictions and regulations on books and television shows.
Contents
Introduction Section I The media: under attack
Dark times Journalists or dacoits? Freedom of expression: comparisons from Sri Lanka Your freedom ends where my fist begins Government ad masquerades as truth No right to question? With the State as a spectator, attacks on media on the rise in Orissa Investigate' the police at your own peril: the case of Tehelka's K K Shahina A Hoot editorial Geeta Seshu Rohini Hensman Ammu Joseph Meena Gopal Saadia Azim Geeta Seshu Jenny Rowena and K Ashraf 5 9 12 16 19 22 26 32 4
Sedition: for those who dare to dissent

Clamping down on the dissenting voice Siddharth Narrain The sedition case against Roy and Geelani Rakesh Shukla Sedition, free speech and dissent A Free Speech Hub report 35 39 44
Cybermedia: Virtually Free Speech

The Amended IT Act: draconian or farsighted? Free Speech includes the right to receive information A direct impact on free speech in cyberspace E-rebellion in Kashmir Facebook faceoff in Assam As students vent on Facebook, school authorities get edgy A Free Speech Hub report An interview with Rodney Ryder An interview with Pavan Duggal Fahad Samar Uddipana Goswami Geeta Seshu 47 51 56 62 65 69
Mobile Media: Breaking age-old silences

Vox Populi Chhattisgarhwhat an idea, sirji ! Monitoring government surveillance of Blackberrys Geeta Seshu Citizen Lab, Canada 73 77
The Culture wars: free speech struggles over art, literature, cinema
Shiv Sena forced to respect freedom of expression! Husain's nationality-Pyrrhic victory for fundamentalists Should not writers be made of sterner stuff? Censoring films to protect the audience Book bans: tale of three books When bigotry rules: religiosity and censorship in Goa Withdrawal of acclaimed book from Mumbai University curriculum A Free Speech Hub report Geeta Seshu Vidyadhar Date Siddharth Narrain Geeta Seshu Frederick Noronha A Free Speech Hub report 80 83 87 90 93 100 105
Legal analysis
Contempt powers and free speech A cheeky video game by Greenpeace, but corporate giant Tata is not amused Hate speech: the fault line that divides advocates of free speech Rakesh Shukla Kamayani Bali Mahabal Lawrence Liang 109 114 119
Free speech and privacy: drawing the contours

Body scanners and the right to privacy Privacy is not a trade off for transparency Say No' to UID: call for a national campaign The right to privacy is not valid in Tata case Geeta Seshu Venkatesh Nayak Kalyani Menon Sen 127 130 133
An interview with Prashant Bhushan 138
Section II
Free Speech Tracker 2010: A summary What the Free Speech Tracker recorded in 2010 142
Introduction
Freedom of speech, in the media as well as in the arts, cannot be taken for granted even in a democracy. At the start of a new decade in India, civil society has to recognise this. Constitutionally guaranteed freedoms are now frequently being contested by arms of the government, by insurgents, and by vigilante groups. There are tracts of the country where journalists cannot go in to report because the security forces or the Maoists keep them out. So you don't know what is happening to the populations which live there. In some states like West Bengal there is an emerging political culture which drives out journalists from press conferences held by political parties. Why? Because individual journalists are increasingly seen as partisan and political party workers have become more intolerant. If the leash was being shortened on news and the media in 2010, other spaces - cultural or cyber, were also under attack: and slowly, our right to choose the films we wish to watch, the books we can read or the websites we access is being taken from us. As is journalists freedom to report. So the media watch website TheHoot.org felt the need to create a space that would be vigilant about freedoms that are constantly under assault. The Free Speech Hub is a civil society initiative that set out in January 2010 to highlight issues of freedom of speech and expression and regulation of media. Through research and monitoring of the broad area of free expression through different media, by tracking data privacy issues and government policy and legislative debate, it seeks to create a climate of awareness about free speech issues in the country. Its Free Speech Tracker - a calendar - tracked free speech related events through the year. The Free Speech Hub was funded by a grant from google.org In this monograph we feature extracts from the debate which took place on the Hub in 2010.
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Section I
The media: Under attack
Dark Times In less than twenty days of this month there have been six assaults on journalists and one arrest in Manipur, Kerala, Kashmir, Maharashtra, Orissa and Delhi. The worrying question is what does the increase in violence signify? A HOOT editorial.
July 18, 2010
Shiv Sainiks attacked the Zee 24 television office in Kolhapur late on Friday night (July 16), injured people and destroyed furniture, while a live telecast of a debate on the Maharashtra-Karnataka border dispute was on. Earlier the same day RSS workers vandalized the TV Today office and the mayhem played endlessly on Headlines Today, its sister channel Aaj Tak, and several other news channels through the rest of the day. Prominent journalists in Delhi were interviewed and gave suitably outraged quotes, other channels chipped in with empathetic coverage. As it happens it was the seventh attack on members of the media this month. In less than twenty days there have been assaults and one arrest in Manipur, Kerala, Kashmir, Maharashtra, Orissa and Delhi. Not all these incidents get the kind of coverage that would register on the country's consciousness. The attacks come from the police and security forces on the one hand, and from mobs or miscreants on the other. On July 1 a journalist was abused and attacked by unidentified persons in Bhubaneswar. Suryamani Mishra, a journalist working with Oriya daily Khabar, in Bhubaneswar, was walking home at night after his duty when two people attacked and abused him. He had been writing against communal issues, the land scam and the
builder mafias. On July 2 in Imphal, Yumnam Ibomcha, a staff reporter of a local daily, was beaten up by paramilitary troopers in the Collector's office in Imphal West district on Wednesday. Ibomcha said that he had gone to the Collector's office when he learnt that diesel permits issued to the farmers were being triplicated in view of the acute shortage of fuel in Manipur. After identifying himself, he sought some details. However, two troopers punched and kicked him. The Commandant of 1st Manipur Rifles told The Hindu that one trooper of his battalion had been suspended from service and disciplinary action initiated. On July 4, Kerala police arrested T.P. Nandakumar, editor of the Crime News magazine, on a charge of publishing offensive and defamatory material against a Non-Resident Indian businessman on the magazine's online edition. They also arrested a sub-editor of the magazine, Raju Hariharan, on a charge of uploading the allegedly defamatory material on to the Internet from a computer at his house in Pala. Both were granted bail, but cases have been registered against them under the amended IT Act. On July 6, twelve photojournalists were injured in Srinagar when police and paramilitary forces used force to prevent them from taking pictures at Firdousabad, Batamaloo. Witnesses said the police and troopers thrashed them. This was followed by a ban on media movement when curfew passes were cancelled. On July 13, Indian Reserve Battalion police attacked three journalists, including a woman journalist, in two separate incidents, while they were covering the rath yatra in Bhubaneswar. An ETV woman journalist was molested and a cameraman assaulted by Indian Reserve Battalion (IRB) personnel while covering the ISKCON rath yatra. The Delhi attack on July 16 was triggered by Headlines Today's story on saffron terror. TV Today's Hindi channel Aaj Tak had recently reported the alleged links of some RSS activists to the Mecca Masjid blast accused. They had even done a sting operation on senior RSS leader Indresh Kumar.
Meanwhile in Orissa on July 16 media people boycotted the Orissa Assembly as a protest against the apathy of the State Government towards rising attacks on the media in Orissa. As recorded above, there have been two incidents of attacks on journalists in the state this month. The worrying question is, what does the increase in violence signify? A growing intolerance in an increasingly violent country which turns on all sections of society including journalists? Or a sharp loss of esteem for the profession? Or a gut response to the immediacy of television, and a corresponding vulnerability in a lawless country, where neither the police nor politicians nor their henchmen follow any rules? Violence against the media is not new, but its growing frequency is alarming. As the sector and its influence grow, as the media takes it upon itself to expose wrong-doers, people are responding with fists and guns. And the government is both passive and complicit. The Hoot set up its Free Speech Hub in March this year because of a growing conviction that the media, writers and creative people are increasingly under attack or pressure. We did not think it would come to seven incidents in a month for journalists alone. In addition, this month has seen a ban on a book, and a fiat from Bal Thackeray to FM channels to play Marathi music within seven days or face the music! Now that the documentation is there, how should we respond to it? Journalists bodies like the Editors Guild and journalists unions need to send a fact finding team to each incident that happens to try and establish which causes are at work. And then take the evidence to the government and political parties to rein in their employees and supporters. We need to peacefully boycott functions. We should also respond by looking inward to see if our coverage is responsible and fair. Was professional behaviour above board in each case? Where defamation is alleged, is it a justified allegation? By highlighting the violence, not just when it happens in our neighbourhood but also when it surfaces in faraway Manipur or Kalinganagar. By insisting that publications give every media person including stringers valid press cards that might give them
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some protection. And civil society needs to wake up and be heard on this issue. For a country with a huge non-governmental sector, there is precious little activism on issues concerning the media. The latter has many warts, but if it has no freedom to function, India will be a worse place to live in than it is today.
Journalists or dacoits? The atmosphere isn't conducive. There's no one really to back us. Press owners will not stand by us. There's always the fear of what will happen to our families. GEETA SESHU tracks the fate of journalists in Dantewada
March 18, 2010
On January 5, 2010, two independent journalists from Mumbai, Priyanka Borpujari and Satyen Bordoloi, a documentary film-maker Nishtha Jain, and a law student and RTI activist from Hyderabad, Suresh Deepala, were charged with dacoity after a clash with local journalists in Dantewada, Chhattisgarh. The group had been visiting the Vanvasi Chetna Ashram to document and report on a jan sunwai (public hearing) organised to record the testimonies of adivasis on their problems. The group alleged that their cameras were snatched by police and security forces while they were detained for a few hours. Nishtha Jain was escorted to Raipur by security forces while the other three members of the group who were also asked to leave, opted to stay put. Their cameras were subsequently returned to them but all the photographs and video recordings they had made were deleted. The Superintendent of Police, Dantewada district, Amresh Mishra, told news agencies that a case of dacoity under Sec 395 of the IPC was lodged against the group, based on a complaint made by local journalists. The latter allegedly complained to the police that the group had used vulgar language and accused local journalists of adopting a pro-police and pro-government stance in their reportage of the ongoing conflict in the area. They even snatched the cameras of local journalists, it was alleged, and hence they had been charged with dacoity! Mishra disclosed that members of the group had also filed a counter-complaint against local journalists alleging that they had snatched cameras and mobile phones but police have not registered this, merely inquiring into the complaint. The fracas spilled over the next day, as a mob comprising adivasis as well as representatives of local media, protested the visit of civil
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liberties representatives, including Medha Patkar, Sandeep Pandey and Kavita Srivastava of PUCL. The latter were in Dantewada to attend the jan sunwai but the mob, under the banner of Maa Danteshwari Swabhiman Manch, alleged that they were Maoist supporters. Despite the presence of a large security force, the mob threw eggs and tomatoes at the activists. Patkar later said that the protests were state-sponsored and that the tribals had been specially brought from a nearby relief camp. She had also wanted to meet Kopa Kunjam, an activist of the VCA lodged in Dantewada jail on charges of murder, but the latter allegedly refused to meet her, police said. Journalists, researchers unwelcome in Chhattisgarh? But why were these independent journalists and human rights activists unwelcome in Chhattisgarh? According to Borpujari and Bordoloi , the police were actually trying to prevent journalists from gaining access to Sodi Shambo, tribal woman, age 28 years, and a resident of Gompad, Dantewada. Sodi Shambho was one of the victims and witnesses of the Gompad killings by police and SPOs on 1st October, 09 and a petitioner in Writ Petition (Criminal) No. 103 of 2009 in the Supreme Court. On 2 January 2010, Sodi Shambho was on a bus from Dantewada town to Raipur, when she was stopped by the Dantewada police for questioning. Attempts to meet her or ascertain whether she was safe were thwarted by police, the activists contended. Police, on their part, maintain that they were keeping her in their custody for her own security! Later, Sodi was taken to the All-India Institute of Medical Sciences (AIIMS) for treatment and journalists who tried to meet her on January 15 were roughed up, their cameras snatched and the pictures they took were deleted. In a press conference in Mumbai, Borpujari and Bordoloi said that they had complained to Mishra about the destruction of their cameras. Jain made a complaint to Reena Kangle, the district collector, Dantewada, about the damage to their cameras and the deletion of their film clips. The latter, however, told her that the
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security forces would never do something like that! Operation Green Hunt and media coverage Operation Green Hunt launched last October as a coordinated battle between security forces of seven states (Andhra Pradesh, Orissa, Maharashtra, Bihar, West Bengal, Jharkhand and Chhattisgarh) and the Maoists located in the forest belt has already claimed scores of lives, displacing lakhs of tribals and causing untold destruction in its wake. Human rights activists and leaders of non-governmental organisations like Gandhian Himanshu Kumar of Vanavasi Chetna Ashram fear that Operation Green Hunt is a culmination of the process started by the infamous Salwa Judum in 2005, systematically emptying the villages and jungles of tribals, leaving the mineral-rich field free for big mining companies. However, little of this has been covered by the media as both local journalists and media persons from national dailies and periodicals who have tried to document the operation are actively discouraged from doing so by security forces. Not just mediapersons, but human rights activists and researchers who visited the area were intimidated and even denied accommodation in lodges and guest-houses. On December 29, 2009, Delhi University professor of sociology Nandini Sundar and political science professor Ujjwal Kumar Singh, who visited Bastar for research on the plight of the tribals, were unable to find any accommodation, were followed everywhere and were forced to leave without fulfilling their task. While the Director General of Police Vishwa Ranjan said that this was for their protection, SP Amresh Mishra admitted that he was asked to escort visiting dignitaries out of the area! The experience of journalists who represent national dailies and periodicals was no different. Tehelka journalist Tusha Mittal was also abruptly asked to vacate a lodge on January 4, 2010. In an article entited Life behind the iron curtain Mittal writes: The battle between the State and Maoists is well known. But in Chhattisgarh, another battle has been fast gathering steam between the State and civil society, between a policed existence and
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the idea of democracy, between a coerced media and free speech..... At a recent press conference in Raipur, Chhattisgarh DGP Vishwa Ranjan told journalists, on the record, that there could be police action against them if they wrote in favour of Naxalites. Two weeks ago in Dantewada, SRP Kalluri, the DIG-Anti Naxalites, called journalists into his office for one-on-one sessions. He told us not to write in favour of the Naxals (euphemism for not writing anything against the State) and said the police have their eyes on us, says NRK Pillai, vice-president of the Chhattisgarh Working Journalists Union. The atmosphere isnt conducive. Theres no one really to back us. Press owners will not stand by us. Theres always the fear of what will happen to our families. The media is already working under the shadow of the draconian Chhattisgarh Special Public Security Act, 2005 (CSPSA), also called Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005. Amongst the sweeping and general provisions of Section 2(e) of the Act are: an unlawful activity would mean any action taken by individual or organisation whether by committing an act or by words either spoken or written or by signs or by visual representation or otherwise which constituted a danger to public order, peace or tranquility or interfered with the administration of law, encouraged or preached disobedience to established institutions etc. Offenses under this act are cognisable and non-bailable. In 2006, Kamlesh Paikra, the Bijapur correspondent of Hindsatt in Dantewada district was hounded out of his home and lost his job after police and Salwa Judum activists harassed him for writing about Salwa Judum cadres burning down villages and about the Maoists. Another journalist from Bijapur, Lakshman Singh Kusram, was reportedly threatened by police for his reports in a local publication that women had been beaten by the police. Local politicians belonging to the ruling BJP have also threatened the media for reporting on the Salwa Judum against Maoists. In this scenario, as both local and national media are systematically silenced, Operation Green Hunt - the largest security action launched by the Indian state is conducted away from the public
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eye. The result: the death of innocents and the destruction of the environment is rendered completely invisible and unaccountable.
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Freedom of expression: comparisons from Sri Lanka Arundhati Roys essay Walking with the comrades, supporting the struggle of the CPI (Maoist) in the tribal areas, was published by a mainstream, corporate-controlled Indian magazine, Outlook. How would that be possible if India were just a fake democracy, asks ROHINI HENSMAN
April 15, 2010
Between 1994 and 2005, a war-weary Sri Lankan population had been willing to concede the democratic rights and freedoms demanded by Tamils. Equally significantly, this period saw a restoration of democratic rights including freedom of expression in the government-controlled parts of Sri Lanka, by contrast with the previous period, during which all democratic rights and freedoms had been under lethal attack. But there was no corresponding restoration of democratic rights in the parts of Sri Lanka controlled by the LTTE, where Tamil dissidents (i.e. anyone who criticised or disagreed with the LTTE leadership) continued to be hunted down and killed. Indeed, even Tamil dissidents who had escaped to other parts of Sri Lanka (or in one or two cases abroad) were ruthlessly wiped out. This trend had started much earlier. Shortly after the Indo-Lanka Accord was signed in 1987 and the Indian Peace-Keeping Force occupied the North-East, war broke out between the IPKF and LTTE. Four academics in the University of Jaffna wrote a book, The Broken Palmyra, which tackled the issue of human rights violations by all sides: the Sri Lanka government, the IPKF, the LTTE, and other Tamil militant groups. They also set up University Teachers for Human Rights (Jaffna), which continued to document and analyse violations. One of them, Rajani Thiranagama, was killed by the LTTE in 1989, and the others could survive only by fleeing. Literally thousands of dissidents were arrested, tortured and killed by the LTTE. This totalitarian regime survived to the very end, when they were defeated by government forces. The LTTE had been formed as a response to persistent discrimination against and persecution of Tamils, including largescale massacres. To that extent their concerns overlapped with
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those of Tamil democracy activists. They took up armed struggle for a separate Tamil state, arguing that non-violent protest had not worked. But that had a logic of its own, leading to the stand that anyone who was not with them was with the enemy and had to be eliminated. In the 2005 presidential election in Sri Lanka, the LTTE leadership enforced an election boycott in the areas they controlled, leading to the victory of Mahinda Rajapaksa. There was a return to hostilities, and the LTTE was wiped out, along with thousands of civilians. In the process, democratic rights, and especially freedom of expression, suffered massively in the whole of Sri Lanka. The reason I have gone into such detail is that I see so many parallels with what is happening in the forest belt of India today. The CPI (Maoist) and its supporters justify recourse to armed struggle by saying that non-violent resistance has failed, and to some degree their concerns overlap with those of tribal rights activists. Yet the Maoists own practices are far from democratic, as dissidents who have left the party testify, and their goal of capturing state power diverges from the adivasis goal of gaining greater control over their lives, livelihoods and habitat. (See, for example, this interview, where a former Maoist area commander says, Whenever a tribal raises his voice against the Maoists, he is killed.) It appears that there is a disconnect between the adivasi struggle for democratic rights and livelihood and the CPI (Maoist) armed struggle for state power, and that the former is being sacrificed to the latter, just as the struggle for the democratic rights of Tamils in Sri Lanka was sacrificed to the LTTEs armed struggle for state power. As the situation becomes more polarised, not only are unarmed civilians in the conflict zone victimised by both sides, but the mantra of either you are with us or you are with the enemy is used more stridently by both sides, resulting in an attack on freedom of expression even in other parts of India. The use of the utterly reprehensible Chhattisgarh Special Public Security Act 2005 (CSPSA) against Arundhati for stating her political views in her writing is a dramatic illustration of the subversion of democracy by political forces that have always been opposed to it. And I very much fear that these forces will gain strength if the conflict escalates further.
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Your freedom ends where my fist begins Draconian laws, threats, violence and even derisive television anchors all these techniques, and more, are deployed to curb the free expression of opinions. Pseudo discussions on TV generate more heat than light, more entertainment than enlightenment, says AMMU JOSEPH.
April 19, 2010
The police in Chhattisgarh are reportedly considering action against author Arundhati Roy under the Chhattisgarh Special Public Security Act, 2005, on the basis of a complaint registered by an individual, Vishwajit Mitra, in Raipur. Mitra alleges that Roys recent essay, Walking with the Comrades, glorifies the banned Communist Party of India (Maoist), seeks to justify its activities and denigrates national institutions and systems such as the judiciary. The 2005 Act is the controversial law under which dozens of citizens have been detained, including physician Binayak Sen (imprisoned for nearly two years) and film-maker Ajay T.G. (jailed for over three months), both human rights activists. Its constitutionality has been challenged in a public interest litigation initiated by the Peoples Union for Civil Liberties and accepted by the Chhattisgarh High Court last year. Mitras demand that Roy be prosecuted for writing an article presenting an alternative view of the Maoists and their cause is the latest instance of the growing intolerance of dissent and aversion to genuine, civilised debate that marks our supposedly democratic society today. The old, reasonable adage, Your freedom ends where my nose begins, appears to have been recast here as Your freedom ends where my fist begins with the fist manifesting itself as draconian laws or character assassination or threat of violence or, all too often, actual violence. Freedom of expression is internationally recognised as an essential element of the civil and political rights that are integral to democracy. The fundamental right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds orally, in writing or in print, in the form of art,
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or through any other media of choice. Tell that to the Shiv Sena, which regularly seeks to determine what citizens can do, say and see most recently flexing their muscles to try and stop the production of a play based on the life and letters of the late Pakistani poet, Sara Shagufta, directed by Mahesh Dattani. The fact that the official censor board had given the play a U certificate obviously meant little to those who have grown accustomed to successful censorship by mob. Of course only certain types of opinions attract such vigilantism. The hate speech and violent threats periodically spewed out by the Shiv Sena and like-minded organisations often go unchallenged, with even those ostensibly in charge of maintaining law and order preferring to lie low and abdicate responsibility. Enjoying their own freedom of expression, emboldened by the apparent helplessness or unwillingness of the State to take action against them, and encouraged by the public attention they garner with their strongarm tactics, more such groups are becoming more aggressive more frequently. While the media provide the oxygen of publicity to groups that both threaten freedom of expression and misuse it with impunity, significant sections of the media actively undermine the free expression of opinions that happen to be different from dominant perceptions. The most recent example of this is the widespread misrepresentation, labelling, stereotyping and pillorying of those who have spoken out against the use of State violence to combat militant violence, highlighting the need to address the socioeconomic roots of the problem underlying the undisputed spread of Maoist presence and influence across vast swathes of the country. If Arnab Goswamis Arundhati Roy and Prashant Bhushan, I hope you are watching this, we think you are disgusting in November 2008 was a classic in this genre of journalism, Sagarika Ghoses more recent Why does India love to hate Arundhati Roy? Why are you the writer that India loves to hate? is equally priceless. Media discussions on such controversial issues all too often reflect the kind of bias that well-known international journalist John Pilger referred to in an interview about what is wrong with journalism
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today. Many journalists now are no more than channelers and echoers of what Orwell called the official truth, he said. Many become very defensive when you suggest to them that they are anything but impartial and objective. The problem with those words impartiality and objectivity is that they have lost their dictionary meaning. Theyve been taken over. [They] now mean the establishment point of view. Yet media discussions on current issues serve the public interest best when they are informed by facts rather than presumption and prejudice. Discussions set up as a big fight between predictable opponents representing conflicting fringes of opinion can hardly produce genuine, meaningful, constructive debate. With little or no attempt to create a real conversation placing issues in context, enabling the exchange of varied, nuanced viewpoints, and seeking common ground from which problem-solving ideas can emerge such pseudo discussions tend to generate more heat than light, offering more entertainment than enlightenment. The fact is that the news media today play an influential role in setting the terms for national debates on important current events, thereby helping to shape public perceptions of the issues involved. By determining who has a voice in these debates and who is silenced (in one way or another), which issues are discussed and how they are framed, the media have the potential to maintain the status quo or challenge the dominant order. Either way, it is clear that the youre either with us, or against us doctrine, lately popularized by George W. Bush but also famously promoted by the likes of Benito Mussolini, is not particularly good for journalism, freedom of expression or democracy.
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Government ad masquerades as truth When a government adopts propaganda as a mechanism to reach out to the people, it is a tacit admission of a people's divided thinking on the role of the Maoists, writes MEENA GOPAL
April 25, 2010
These days, all major new dailies are flooded with news and analyses on naxal violence and the police action against Maoists for the past several months in the states of West Bengal, Jharkhand, Orissa, Andhra Pradesh, Maharashtra and Chhattisgarh which have suffered the intensity of violent occurrences the most. Recently, the union government launched Operation Green Hunt to flush out and eliminate Maoists in these states on the grounds that they were threats to internal security. And, one heard and saw Union Home Minister P Chidambaram and the Chief Ministers of these states constantly airing their views on the need to wipe out the Maoist menace. News reports indicated that even as the state paramilitary forces take strong action against the Maoists, efforts to promote development would simultaneously be undertaken in these backward districts in these states. Clearly, the message being conveyed to the public was that the Maoists were thwarting the state's desperate efforts to take development to the backward districts of the country and were posing obstructions to this effort. Of course, there is no mention, let alone a discussion, about why there was no development in these parts, even after more than 60 years of Independence. Similarly, there is no mention or understanding of how the state would identify the Maoists and weed them out from the masses in these states in order to eliminate them. Even as these reports continued pouring in, an advertisement issued in public interest by the Ministry of Home Affairs, Government of India, in several national dailies (see The Hindu, March 20, 2010, p.14) for nearly a week added an element of
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intrigue to the goings-on. It showed a frail woman looking down despondently with the following lines attributed to her: First, the Maoists came promising prosperity; then, they took away my husband; then, they blew up the village school; now, they want to take away my 14-year old daughter. Stop, please stop this mindless violence; (and then in bold capital letters) I want to live! A line pops up alongside: Abjure violence, support development. The background depicts a broken hut with pots, pans and other belongings, lying scattered, of a family squatting in front of their home, and another image of couple of school boys standing in front of a demolished building, which is obviously a school. This advertisement from the Ministry of Home Affairs appeared on page 14 of the newspaper which curiously had a contradictory story on page 12 of the same edition. The news item on page 12 read: Witnesses allege biggest anti-naxal operation of 2009 was fake.' According to the story, some witnesses from a village in Chhattisgarh's Dantewada district said that 12 of the 30 people killed by CoBRA (Commando Battalion for Resolute Action), a special force of Central Reserve Police Force (CRPF) raised for Operation Greenhunt, had no links with Maoists and that six of them who were picked up were killed in cold blood. The witnesses described in detail the manner in which these men went about their daily chores such as herding cattle before the forces picked them up and shot them. They also mentioned the manner in which the forces destroyed parts of a school which was already demolished. The publication of the report and the advertisement in the same issue of the newspaper created a peculiar situation in which an advertisement in one part of the newspaper emphasized an issue considered untrue by the news report in another part of the newspaper. The advertisement was issued by the Ministry of Home Affairs which, incidentally, is also responsible for Operation Greenhunt. The advertisement smacks of propaganda. We are used to seeing
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such propagandistic advertisements by political parties during their election campaigns in a bid to influence public opinion, or by corporates slamming one another's products in brand wars. They project their supposed accomplishments while deriding those of their opponents. But, why should the government indulge in propaganda? When a government adopts propaganda as a mechanism to reach out to the people, it is a tacit admission of a people's divided thinking on the role of the Maoists. An uncanny parallel ran through the actions referred to in the ad: took away my husband, blew up the village school, and the actions attributed to the paramilitary forces in the news report: picked up, destroyed parts of a school. It was as though the government was seeking desperately to airbrush its deeds and project them on those they consider their opponents. And what is the line about the taking away of the 14-year-old daughter insinuating? Such propaganda reeks of the government's desperation to legitimize its violent actions against its own citizens by vilifying Maoists who seem to have gained not just the support of the people in the tribal districts but also the sympathy of the middle class readers of these national dailies. The government stands exposed in the claim, 'Issued in public interest.' How can an authority whose legitimacy is shaken by the inconsistency portrayed in the advertisement and the news report speak of the interest of the public? Also, how can it shamelessly utilise tax-payer money/ public funds to disparage a section of the public while seeking to influence another section? Anyone with common sense and sensitivity can see through the dubiousness of the state role. Finally, a couple of questions on the need for public vigilance on media ethics: How can newspapers accept advertisements from anybody claiming public interest when they themselves are the conscience-keepers of the public domain? Is all advertising and such space offered by the media for revenue sieved through some policy parameters based on morality and ethics of journalism? Even as we contemplate the states role, we must look critically at the medias role.
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No right to question? Infringing the media's 'right to question' is a common phenomenon in a politically divided West Bengal. But without that right, objectivity and truth are seriously compromised. SAADIA AZIM reports on a disturbing trend.
June 22, 2010
Three journalists were held and detained by the joint forces for eight hours in Salboni police station on June 15, for trying to get into the Pirakata forests in Lalgarh area in 'Junglemahal' (comprising the three districts of West Midnapur, Bankura and Purulia). They were gheraoed in a village in Mathurapur where they had been staying and brought to the police station along with three other activists from Kolkata and some thirty local villagers. While the police later set the journalists free, long after reconfirming their identities, they arrested thirteen of the others on charges of breaching section 144 in that area. The activists have on the other hand, been slapped with more serious charges of garnering support for the Maoists and waging a war against the state. West Midnapur superintendent of police Manoj Verma later explained the detention, arguing they had violated provisions under Section 144. "Besides the police have evidence to prove that the group was there on the invitation of Maoists and their frontal organization, the PCPA. They had also attended Kangaroo courts of the PCPA", he said. When some other journalists asked senior police officials what made the police suspicious of the journalists, the reply was that the media was deliberately being 'soft on the outlawed and taking their side'. But a day later, police killed eight Maoists in an encounter in the 'Ranjya forests' and caught one of the alleged Maoist squad members. The media were given a complete view of the operation from ground zero including the parading of the survivor. A senior print journalist from Kolkata later sought to know from officials present, details about the so-called tip-off and the operation itself. Activists in Kolkata had already raised questions about the identity of the lone captured accused. Instead of a reply to the journalist's
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questions, a senior officer rather tersely sought to know 'which side of the war zone' the journalist was. This is not only true in the war zone in Lalgarh where suspicion is bound to grow amongst people. Last month after a CRPF van was blown away by the Maoists and five jawans lost their lives, four journalists were brutally beaten with batons and AK-47 rifle butts by CRPF personnel just about a kilometre away from the blast site. The jawans accused the journalists of being responsible for the death of their colleagues, by their continuous coverage of the antirebel operations. One of the media persons attacked later reported that the CRPF jawan had told him they had been identified as targets for a long time. "It was because the jawans believed that we were anyway tilted towards the opposite camp (read Maoists and the PCPA) and have been accusing the jawans of 'inefficiency'". After the April 2010 'Silda camp attack' by Maoists where 24 jawans lost their lives, reporters on duty were targeted by family members of the deceased. Yet police blamed journalists for bringing on the attack, by unnecessarily hyping inefficiency stories of the jawans and their casual behaviour, in a high alert zone. That is just one side of the story. Even in state capital Kolkata, reporters are constantly being targeted for being biased and accused of taking sides. If ever any uncomfortable question is put forward to people in official positions, the journalist is straightaway termed as prejudiced and intimidated to such an extent that a second question would never follow. As the media fraternity stands in disagreement in a politically divided Bengal, the media's 'right to question' is terribly infringed and hence the objectivity of the story is totally lost. A day after the 'Gyaneshwari train' tragedy, a group of political intellectuals organized a press conference in the Kolkata Press Club only to subject reporters to a prepared text. Painter Shubho Prasanna and some others, wanted media persons to believe their assertion, that it was not the outlawed Maoists, but the CPI(M), who were behind the attack. When the media attempted to question the basis and motive behind the allegation, they were accused of being
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prejudiced and one-sided. Such instances of intimidation in political circles have been customary in recent times. The reason behind all this lies in their ability to get away with even publicly demoralizing journalists. The unusual factor here is the growing cases of intimidation even in bureaucratic circles. It seems strange that, on one hand, journalists are intimidated, arrested, and beaten up for covering stories from the Lalgarh area and are being accused of being 'soft on the outlawed'; while on the other, it is the police who would call up selected media friends for photo opportunities of an arms catch, a police haul of a landmine and even joint forces operations when Maoists are supposedly killed in an encounter. But the same takes a complete 'u turn' if questioned -- as in a recent case about the identity of the 'lone alleged Maoist caught alive during the encounter'. A senior TV journalist covering the Lalgarh issue, who had been beaten up by the CRPF jawans, says the moment a media person talks of developmental issues or reasons related to tribal hostility towards policemen and urbanites; he/she is termed 'pro' this or that and then becomes the target of political outbursts. "But then that is just our job. Once when you are cornered, targeted and intimidated the real story will never get the chance to come out". Another senior print reporter confessed that media contacts and relations with the Maoists, in carrying their releases is 'just' for purposes of doing one's job. "If the outlawed are suspicious it is understandable. But if senior officers and leaders get suspicious and bully us it is difficult. Our job is not to act like police informers. They can question the accuracy of the story but not intimidate us". Surprisingly, such hostility is seen even from activists or intellectuals in Bengal who are now divided on political lines. If the intellectual fraternity takes sides, the onus is definitely on the media to bring out the objectivity of the issue. But the real problem now is also the deeply enforced division in the media fraternity along political lines. Thus the objectivity of media is somewhere getting lost in 'either with us or with them' opinions. Those not
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towing these positions are isolated. It is a known fact that Mamata Banerjee, called journalists 'paid employees' of her detractors, even as she has now groomed her own flock of 'yes madam' journalists. A similar situation exits even on the other side of the political spectrum. But, what irks is the rising intimidation and bullying of journalists by the bureaucracy along political lines. This is not just mishandling media issues but also curbing a journalist's 'right to question'. The flock of intellectuals owning allegiance towards the 'winds of change' in Bengal, would never take a question on Mamata's stand on her relationship with the PCPA now -- the prime accused of the 'Gyaneshwari accident' -- although they would not mind blaming the CPI(M) for the incident. On the other hand, another flock of intellectuals holding candle light marches for the Gyaneshwari victims would not admit, it was the failure of the state administration. Because this group apparently owes its allegiance to the state government and the march was a mere answer to the press conference held the previous day by another group, holding the CPI(M) responsible for the attacks. And if a journalist puts forth a question, they would simply be termed 'opinionated'. The question here is if mere allegations were to make news, then a journalist's work would be limited to being a typist, typing speeches made by whomsoever, rather than trying to be objective about the issue. 'Not to answer' a question posed, can be anyone's choice, but to question is a journalist's right and if that is violated the colours of a true story will never see the light of day.
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With the State as a Spectator, Attacks on Media on the rise in Orissa The attacks on journalists are inextricably linked to the changing equation between the state and civil society, brought about by the triumvirate of aggressive industrialisation, political interests and competitive media houses. The state government's failure to take swift and punitive action in these cases has sent a clear message: the messenger can be shot. A Special Report from the FREE SPEECH HUB
July 25, 2010
Executive summary: The intimidation of journalists in the form of physical attacks, threats and initiation of legal proceedings against them has reached a peak in Orissa. There have been 12 physical attacks on reporters, stringers or camerapersons this year, and 6 cases of threat and intimidation, up from 3 attacks in 2009. Between 2004 and 2009, four cases of sedition were filed against stringers or reporters and a writer. The attacks occurred either in retaliation for reports written or while the media- persons were on reporting assignments. The perpetrators fall in many different categories: sarpanchs(3), politicians and their henchmen (3), a bank manager, students, Central Industrial Security Force jawans, and Indian Reserve Battalion (IRB) personnel. In three cases the police were present but chose not to act. Cases filed have not made much headway. (The list of cases and the current status of police complaints filed are in the annexure. Click here for details). The profession of journalism is undergoing changes in Orissa. This is partly an outcome of the rapid growth of the print and the electronic media as well as the hold that political parties and businesses have acquired over these. The most widely broadcast channels and the largest circulating daily are owned by powerful people. (See main report for details.) Given this reality, reporting the depredations caused by national and international business houses
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that have descended on the state to exploit its ample natural resources has become a perilous task. As mining and industrialisation-related growth accelerates along with protests against these by the displaced populations, it is in the interest of the pro-development lobby to suppress all type of negative publicity. This is done by controlling the media through ownership, doling out largesse in the form of advertisements to others and intimidating those who cannot be neutralised by these. Among the worst affected are the faceless, and often nameless, stringers who form the feeder lines for the city-based media and have to bear the first brunt of media suppression by the powerful. The attacks on journalists are inextricably linked to the changing equation between the state and civil society, brought about by the triumvirate of aggressive industrialisation, political interests and competitive media houses. The state government either actively supports the corporations branding the critical media as Maoists, anti-national or seditious, or plays the role of a spectator. Its failure to take swift and punitive action in these cases has sent a clear message: the messenger can be shot. This report by the Free Speech Hub Coordinator GEETA SESHU is based on visits to Bhubaneswar, Cuttack, Puri, and Jajpur (Kalinganagar). Telephonic interviews were conducted with journalists who were attacked in Behrampur, Angul and Athgarh. We decided to document and investigate the incidents in Orissa to arrive at some understanding of their underlying causes. Among other issues, those attacked have been reporting on the Maoist conflict, movements resisting displacement due to mining and steel projects, instances of corruption in government-sponsored projects like the NREGA, illegal activities of elected representatives, and have been covering spontaneous student protests or those of families of victims of medical negligence.
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Perils of journalism Most journalists work or write for media houses that are run by business groups having interests in mining, real estate or education. While the staffers are hamstrung by these interests, the stringers who are attached in an informal manner to several newspapers or television channels are in a pathetic condition. Usually working for years with a newspaper, they are paid a fixed rate and on the basis of articles used. They are also given the task of space selling and collection of advertisements. On several occasions, it is these stringers - in the field, closest to the scene of action in their district ' who become the first targets of local powers. They have no status, documentation or identity proof of their role as journalists. Often, they get very little empathy from media-persons who hav a more formal association with a news organisation. Although most attacks on journalists may look like isolated incidents, usually there is a background of some powerful person or agency being rubbed the wrong way. Akhand, who reports for Sambad, Kanak TV and Anupam Bharat, was beaten up by a local politician, Pravakar Behera, for writing about the latter's illegal treefelling in Pipili, Puri district. Akhand said that Behera had threatened him in 2006 over another matter and assaulted another journalist, Deenbandhu Beuria in 2008. Some of the scribes may even be local activists who write and agitate on a host of civic, environmental and other issues. Rabi Das, for instance, is editor of Ama Rajdhani and an active member of the association. He is also involved in the agitation against POSCO. Today, the government manages media on behalf of corporate forces, said Das, adding that most national newspapers don't step out of urban areas to cover any issues. When journalists do go out to cover something and are attacked, their proprietors don't back them, he pointed out. Das, who decided to launch his own newspaper that would reach a readership beyond urban Orissa, also believes that the electronic media helps shape public opinion and has a far greater reach than
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print media. Yes, they are all owned by business people with mining interests, but they have talk shows, they are competitive and need us to make their discussions lively, he said, adding that he uses the electronic media to get a point of view across. While corruption is a major issue, it is in the coverage of conflict and resistance to displacement or to industrial projects that the freedom to report without fear or favour has been most tested. Most journalists stay away from venturing too deep into forest areas or conflict zones and miss out on the real story behind different conflicts. Some journalists of national newspapers rely heavily on the venture out of the state capital. They take the news and information, call up a few officials in the administration, get a few quotes and file their stories stringers and rarely under their bylines!, says Lahangir. Travelling to zones of conflict is not impossible but journalists who do so must keep their wits about them, she advised, recalling her own visit to Malkangiri where she had to avoid a CRPF camp. We didn't stop at the camp because we didn't want the CRPF personnel to accompany us as they are a target for the Maoists much less did we want to be in a position where we would lead them towards the village and compromise the locals and our own local contact. she explained. I have been writing consistently against police repression in the area and reporting the demands of the tribals. I think they should be heard. I agree with part of the proposition ' that there can no development without industrialisation - but industrialisation at gun-point? The government itself admits that it'll take 20 years for the mineral reserves in this area to be mined. What happens afterwards?, asks Amulya Pati, the New Indian Express correspondent from Jajpur who was beaten up in Kalinganagar on April 5 this year. Other journalists, he says, don't ask these questions and are happy with the pay packets' they get from the steel companies. The latter is clearly on a divide and rule course, not just with the media, but also between tribals who have taken the compensation and those
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who are still holding out. Basudev Mahapatra talks of the pressures he faces: Corporate houses tried to pressurize me to remove the reports on my site. Vedanta offered me advertisements on condition I do not write anything against the company ' obviously indirectly. Recently, I kept getting telephone calls from someone criticising my articles on Kalinganagar. When I asked him his name, he refused to identify himself. He kept calling from different STD booths, Mahapatra said. On another occasion, his site was hacked and articles he posted on issues of displacement due to industrial projects were deleted! In 2008, his site was blocked for 15 days after an article on Kashipur. Sometimes, articles come on the web as gibberish, though they were uploaded correctly. It is only after changing the web administrator and becoming more technologically savvy himself, that he has been able to counter these attempts. Sampad Mahapatra, while acknowledging the protection his association with a national media organisation like NDTV gives him, nevertheless feels that there is an ever-present sense of danger lurking for journalists in Orissa. He said that most average people in the state believe that the media and non-governmental organisations (NGOs) criticise the government's policies because they are against development. Politicians have said as much in public speeches. There's no civil society in Orissa, there's no debate or discussion on this development', where the entire state is being dug up and sold. Ultimately, the job of questioning will fall on the media, he said, adding that, when the government refuses to respond to the attacks on the media, it is actually sending a clear message to the media not to mess around. The stringers, he rues, become easy prey as they work in risky, conflict ridden areas without recognition or press cards: They are at the end of the information chain and if they are attacked, we ' sitting in the state capital ' are paralysed. The government, by targeting them, is cutting at our roots. After Laxman Chaudhury was arrested for sedition in 2009, for instance, no journalist wanted
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to venture into the area for at least three months, he recalled. Sometimes, the best laid plans can go awry, as it happened with West Bengal-based journalist Bolan Gangopadhyay who was detained on suspicion of being a Maoist near Rayaguda but didn't have any documentation to prove her credentials as a journalist. She said she represented Ananda Bazaar Patrika but police contacted the newspaper and were told she was not a staffer. A flurry of telephone calls from civil society activists, journalists and others followed and it was established that she did in fact, freelance for the newspaper. Police decided to free her without any charge. ``But these kinds of incidents only try to paralyze us and confine us to the state capitals and urban areas,'' felt Mahapatra, objecting to the detention of Gangopadhyay. On what basis did they detain her? As a citizen of this country, doesn't she have the freedom to go anywhere? Is this area a defence installation or have they put up a board that it is out of bounds? he asked. Often, police scare journalists with threats of arrest on suspicion. But media-persons must have the freedom to venture into these areas as they act as a bridge between those in a conflict zone and the others, he felt. Click here to read the complete report
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Investigate' the police at your own peril: The case of Tehelka's K K Shahina Are the police above the law? Are its investigations above scrutiny? When Tehelka journalist K K Shahina decided to investigate the police case against Abdul Nasar Madani in the Bengaluru blasts case, she was charged with intimidating witnesses, striking a blow to critical journalistic enquiry, say JENNY ROWENA AND K ASHRAF.
December 06, 2010
In a shocking instance, Karnataka police have charged KK Shahina, a reporter with Tehelka magazine, of criminal intimidation under Sec 506 of the Indian Penal Code. Her crime: her systematic investigation of the police case against Abdul Nasar Madani, Chairman of Peoples Democratic Party (PDP), Kerala. The action of the Police against a journalist who is only doing her professional duty is against all democratic notions and strikes at the very heart of the Press and democracy in India. In this age of embedded journalism and paid news Shahinas work is actually a very brave attempt at critical journalistic enquiry, without which the possibilities of democracy can never be fully achieved. Shahina was booked under IPC 506 on November 29 for allegedly intimidating witnesses and there has been a swift and sharp reaction from civil society members against the police action. Shahina was at work preparing an investigative report on the case relating to Madani. The latter had spend almost 10 years in Jail as an undertrial in the 1998 Coimbatore blast before he was let off without any charges on 1 August 2007. After two years he was implicated as one of the conspirators in the Bengaluru Blasts of 2008. In her investigation into the present case, Shahina tried to look into the police story that Madani had conspired in the Bengaluru blasts in separate meetings two years ago one which took place in Madanis rented home in Kochi and
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the other in the Lakkeri estate in Kodagu Karnataka. For proving their case, the Karnataka Police had used the evidences given by persons living in Kodagu region of Karnataka. These witnesses, according to the police, had testified that they had seen Madani in the area, when he had come there to plan the blasts. However, Shahinas investigation reveals a completely different story. When she interviewed two of the witnesses, K. K. Yoganand and Rafeek Bappatty, they told her that they had not seen Madani as the police chargesheet claims. In fact, Shahina reports that Yoganand, a BJP worker whose testimony is recorded in the charge sheet, does not even know that he is a witness in the Madani case! Even while she was trying to prepare the investigative report, the harassment against Shahina began. The local police and the Circle Inspector suspected her and asked her if she is a terrorist! They refused to believe that she was a journalist from Tehelka, even after speaking to Shoma Chaudhary, the Executive Editor of Tehelka, over the phone. Based on her investigations in Kodagu, Shahina wrote the article Why is this man still in prison? which came out in Tehelka Magazine on December 4th, 2010. This article clearly brings out the loop holes in the Police story on the Madani case. Immediately, the police registered two cases against Shahina and the persons who had accompanied her to Kodagu to conduct the interviews. Two cases have now been registered against them at the Somawarpet Police Station (No. 199/10) and Siddhapura Police Station (No. 241/10) under Section 506 of the Indian Penal Code for intimidation of the witnesses. There are strong indications that the Karnataka Police action was prompted by the fact that Shahina is a Muslim and had attempted an investigation against Abdul Nasser Madani, another Muslim. In fact, Shahinas case is yet another example of how the State apparatus acts against its minority communities by constructing them as the threatening other to its Secular self. Madani himself has been a victim of this ideological perception, having been thrown into jail for 10 long years without bail and basic human rights, and then left off with no charges proved
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against him. Even now, the police story (as Shahinas report proves) is full of loop holes and yet he is being systematically denied bail by the Karnataka courts. Shahinas attempt was also to bring this injustice into the public sphere. However, the same legal apparatus that was used to keep Madani in jail for long years is now turning against a journalist, who was conducting an investigation into his case, as part of her duty. This raises disturbing questions about the nature of the case itself and the consensus about it that the police is trying to create.
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Sedition: for those who dare to dissent

Clamping down on the dissenting voice Despite stricter judicial interpretations of sedition, dissenting voices have been prosecuted under it, says SIDDHARTH NARRAIN in this analysis- the third part of our series on sedition and the law.
November 06, 2010
While the Supreme Court's decision lay to rest the debate on the scope and constitutional validity of the sedition law, the life of the sedition law is entangled with that of political dissent in the country. A brief search for reported High Court and Supreme Court cases on sedition gives us an indication of the kinds of situations where the sedition law is commonly used. For instance, in 1967, the government prosecuted Ghulam Rasood Choari, the editor of an Agra based Urdu weekly called Ehsas for exhorting the Muslims of the country, especially the Muslims of Kashmir to violence against the government and bringing the readers of the paper into hatred' and contempt and dissatisfaction with the government (Ghulam Rasool Choari v. The State 1968 CriLJ 884). In the specific editorial in question, Ghulam Rasood described Indian rule over Kashmir as tyrannical. It was alleged by the prosecution that this article was published during the crucial period when Kashmir was being debated in the Security Council and when the Indian Government sent a note of protest against the talks going on between Pakistan and China regarding the SinoPakistan agreement to locate and align their common border in the occupied areas of Jammu and Kashmir. It is further alleged that the article was published and circulated during the critical period of Moharram in order to make a strong appeal to the Muslims and to incite communal fanaticism amongst the Muslims. The Sessions Court in Agra convicted Rasood of offences under section 124A and 505 of the IPC sentencing him to
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six months rigorous imprisonment. The High Court upheld this verdict, dismissing Rasool's appeal, and the appeal of the UP government to enhance his punishment. In 1974, just before the Emergency declared by the Indira Gandhi government, the Andhra Pradesh government confiscated copies of the left wing journal Srujana', a literary monthly journal published in Telugu from Hanamkonda, saying that it contained objectionable poems and blank verses referred to in the schedule below, which is calculated to bring into hatred and contempt and excite disaffection towards the Government established by law in India and is prejudicial to maintenance of harmony and publication of which is punishable under Section 124-A of the Indian Penal Code (P. Hemalatha v. The Govt. of Andhra Pradesh AIR 1976 AP 375). Prior to May 1974 the said journal was being edited, printed and published by P. Varavara Rao for 'Sahithree Mitrulu'. In December, 1973, Varavara Rao was detained under the Maintenance of Internal Security Act, one of the grounds of the detention being that he has printed certain poems in the various issues of the said journal which were calculated to incite disaffection against Government and that he preached the violent overthrow of the Government through his speeches and publications. This order of detention was challenged in the A.P. High Court in 1973, the order of detention was set aside, the writ petition was allowed and the petitioner was released. Thereafter, in May, 1974 Varavara Rao was arrested in connection with what is known as 'Secunderabad Conspiracy Case'. Since the arrest Varavara Rao's wife, P. Hemalatha had been acting as editor, printer and publisher of Srujana. While dismissing an appeal against the order, the High Court held that a mere criticism or denunciation of the Government established by law is not objectionable: Citizens are certainly entitled to express their grievances and to endeavour to get them redressed through lawful means. However, if these attempts or exhortations bring the established Government or tend to bring it into hatred and contempt, they certainly come
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within the ambit of sedition as stated in Sec. 124-A, I.P.C. The test that should be applied is to find out whether any article or articles intend to have the effect of creating feelings of hostility towards Government and to excite disaffection. The Court's decision came after the infamous Internal Emergency was declared by the Indira Gandhi Government at the Centre. The judges while upholding the order of confiscation, observed that in a situation of serious internal distrubances, the right to freedom of speech and expression had to be curtailed. Sedition charges were been levelled in 1992, PMK leader S. Ramadoss was charged and convicted sedition charges along with charges under the Unlawful Activities Prevention Act (UAPA), for publicly supporting the LTTE (Ramdoss and Others v. State of Tamil Nadu and Another 1993 CriLJ 2147). This happened soon after the LTTE was proscribed as a terrorist organsiation by the Central Government through the UAPA. In the current climate of an escalating war against the Naxalites in Central India, the rise of mass non violent protest in Kashmir, continuing insurgencies and calls for self determination in the North East, and the state's war against terrorism, the space for dissent has shrunk drastically. Section 124-A has been invoked against a number of civil rights activists and critics of the state across the country. The more prominent of these include the charges against Dr. Binayak Sen in Raipur, Chhattisgarh, who as a part of his mandate in the People's Union for Civil Liberties (PUCL), Chhattisgarh, criticised the state government for its pro-mining and anti-Naxal policies. Dr. Sen was slapped with charges ranging from treason to sedition, and kept in Raipur jail for over a year without being granted bail. His case received worldwide attention, and he was granted bail in the Supreme Court, after a national and international campaign for his release. More recently, sedition charges were slapped against environmentalist Piyush Sethia in Salem, for distributing pamphlets condemning state-sponsored violence in Chhattisgarh. Similarly sedition charges were filed against Dr. Rati Rao, editor of the PUCL-Karnataka's Kannada in-house publication Varthapatra,
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for criticising the communal agenda of the Sangh Parivar in coastal Karnataka and questioning extra judicial killings by the Karnataka police. However, it is crucial to remember that the judicial interpretation of the sedition law, however, protects the space for dissent, whetever the political climate might be. This explains why the Central Government is reluctant to use the sedition law against Syed Geelani, Varavara Rao, Arundhati Roy and others for their participation in the Azadi conference. As for the trigger happy members of the BJP and others who have been calling for the sedition law to be invoked in this instance, they could learn from the arguments of Asaf Ali, Sheikh Abdullah's lawyer in his 1946 sedition case: Sedition is rather an all embracing offence in so far as the law is concerned, but it is very dangerous to deal with popular persons under this section. Every time you deal with them under this section, instead of remedying the evil, you increase its dimensions, because the conviction of such popular leaders laeads to movements which have very far reaching repercussions. After the arrest of Congress Working Committee members in 1942 everywhere you saw QUIT INDIA' in the unlikeliest of places; in public spaces, on public buildings, on trains, in mess-rooms, and even in barracks and schools, this was happening all over India. It is easy to confine popular leaders, but it is difficult to extinguish the fires such convictions light in the hearts of the masses. Before Sheikh Abdullah is convicted these questions must be considered very carefully and weighed in the spirit of grave responsibility because of the repercussions which are inevitable. The mischief of conviction is greater than even the mischief caused by the alleged speeches or rather by the arrest of the accused. The remedy sought is worse than the disease. (Siddharth Narrain is a legal researcher with the Alternative Law Forum, Bangalore.)
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The sedition case against Roy and Geelani: a case of the reluctant prosecution. The directive of a Delhi metropolitan magistrate to police to file an FIR charging sedition against the writer and the Kashmiri separatist leader, exposes our law-enforcers intolerance for dissent, says RAKESH SHUKLA
December 02, 2010
The controversy stirred up by speeches given by Arundhati Roy and Hurriyat leader SAS Geelani, among others, has once again underlined the arbitrary manner in which the state can operate when it comes to allegations of sedition and other punitive laws. In spite of the storm raised by jingoists and others of their ilk, the government, initially, decided against initiating any criminal proceedings against the speeches, delivered at a seminar on Kashmir entitled Azaadi-the only way' in New Delhi on 21 October 2010. Then, the judiciary got into the act. A group of Kashmiri Pandits grouped under the banner of Roots in Kashmir', filed a complaint seeking registration of criminal cases against Roy-Geelani for the speeches they had delivered. A local city court on 3 November 2010 issued notice asking the Delhi Police to respond. Meanwhile, Justice Hima Kohli of the Delhi High Court entertained a Public Interest Litigation (PIL) seeking the initiation of criminal proceedings against Roy-Gilani with regard to the same speeches and issued notice on16 November 2010. The Delhi Police submitted a report that the accused had made no inflammatory speeches and no offense as to sedition could be made out against Geelani, Roy and other speakers. But Navita Kumari Bagha, Metropolitan Magistrate (MM), rejected the Delhi Police report, and, going by newspaper reports, introduced a new term in the legal lexicon by labelling the police report as weird. The MM observed that there was prima facie cogent evidence against the accused and directed the police to file a FIR and submit a report to the Court by 6 January 2011. The Delhi Police then filed an FIR on 29 November 2010 against
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Arundhati Roy, Hurriyat leader Syed Ali Shah Geelani, Professor S.A.R. Geelani of Delhi University( who was acquitted in the Parliament attack case), poet Varavara Rao, Professor Sheikh Shaukat Hussein of Kashmir University, Shuddhabrata Sengupta of Raqs Media Collective and Sujato Bhadro, a civil liberties activist. While the most serious of the charges is sedition under Section 124- A, other sections of the IPC like promoting enmity between classes (Section 153A), imputations, assertions prejudicial to national integration (153B), insult intended to provoke breach of peace(Section 504) and statements, rumours, reports to cause mutiny, create hatred or ill- will between different classes (Section 505) have been invoked. Along with the IPC provisions, Section 13 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) which punishes unlawful activity with seven years imprisonment has also been added. Supporting claims of secession, questioning territorial integrity and causing or intending to cause disaffection against India fall within the ambit of unlawful activity' (Section 2(o) UAPA). Today, this is the factual matrix in which the procedural and substantive law is to be examined. However, given the penchant of people and the inclination of courts to entertain petitions to solve various diverse problems plaguing society, tomorrow we may well hear about a PIL in the Supreme Court seeking a solution to the Kashmir Problem. The Criminal Procedure Code, 1973 (CrPC) prescribes and governs all matters pertaining to investigation, prosecution and trial of offences. Unlike the system in France, where the Magistrate is involved at the stage of investigation, in India, investigation falls strictly within the domain of the investigating agency, which is generally the police. In the present case, the Metropolitan Magistrate is well within her powers to direct the registration of an FIR on the basis of the information received from the complainant group Roots in Kashmir. The registration of an FIR is the first step and forms the basis for initiation of investigation. The police commence investigation and depending on the material and evidence discovered, either file a
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charge sheet against the accused or file a final report submitting that no offence is made out against the accused. Under the Indian legal system, for better or for worse, the Magistrate cannot direct the police to file a charge sheet if the police concludes that no offence is made out. Registration of an FIR on the orders of the Magistrate does not automatically result in a charge sheet by the police. In the present case, it is open to the police to file a charge sheet or a final report after due investigation. Coming to the substantive law, Section 124 A of the IPC on sedition lays down that whoever by written or spoken words, or by signs or visible representations attempts or brings into hatred or contempt or attempts or excites disaffection towards the government established by law shall be punishable with life imprisonment. The explanations to the proviso exclude comments expressing disapprobation of government or administrative measures as long as they do not excite hatred, contempt or disaffection. An emotion like affection or rather the absence or alienation of affection - disaffection - enjoys a vital place in the grand crime of sedition or the prince among the political sections of the IPC designed to suppress the liberty of the citizen, the words used by Mohandas Karamchand Gandhi, the father of the Nation at his trial for sedition in 1922 by the court at Ahmedabad. In his inimitable style Gandhiji declared that preaching disaffection against imperial rulers had become his foremost duty, pleaded guilty and invited sentence. Laws creating offences involve the curtailment of the most fundamental of rights of life and liberty of an individual, and, therefore, generally lay down precise and specific ingredients which have to be established before punishment can be imposed. For example, offences like theft, murder and dacoity are precisely defined as to the acts which constitute the crime and there is little room for the exercise of arbitrariness and play of subjectivities. In contrast, offences like sedition, with the use of imprecise and vague phrases like disaffection, leave greater room for arbitrary use and for the play of subjective notions of the executive as well as of the judicial officers. Similarly, acts like terrorism, disruptive
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activities and unlawful activities have been defined in broad imprecise terms under laws like Terrorism and Disruptive Activities (Prevention) Act, (TADA), Prevention of Terrorism Act, 2002 (POTA) and UAPA. This leaves room for pick and choose by the Executive in the use of the punitive laws. The phrases employed in such extraordinary laws have led to the provisions being used against peaceful protests by farmers, agitations by workers or even led to the targeting of minorities by those in power. Wisely, in post-Independent India, sedition has not been frequently used by the Executive. However, the broad and vague definition of the offence remains and can be used to cover a wide variety of acts, which would not fall within sedition in the ordinary common sense understanding of the term. The range of acts which can be brought in its ambit can be seen in the conviction of Bal Gangadhar Tilak for sedition in 1897 for publishing a poem about Shivaji and the killing of Afzal Khan. In a similar vein, the Bombay High Court in 1910 held the publication of a photograph titled The Nation Personified showing a self-reliant India wearing bracelets of self-rule(swarajya), and hail motherland (vande materam) and holding the sword of boycott (bahishkar) as seditious. Recently, in the context of the present agitation in Kashmir, young boys throwing stones at security forces have in some cases been charged with the serious crime of sedition. There also have been a few instances in Bihar, where youth who blackened the face of a minister- a minor offence by any standardswere charged with sedition. After Independence, Parliament amended section 124A to insert the punishment of imprisonment for life instead of transportation for life or any shorter term but chose to retain the substantive provision. If the section is literally and strictly interpreted blaming the government for the ills prevailing, accusing it of being indifferent to the sufferings of people or not doing enough for the uplift of the exploited could amount to exciting disaffection against the government and seditious. The current developments in the Roy-Geelani case focus attention on whether under our system of parliamentary democracy (with the guaranteed fundamental right to freedom of speech and expression
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enshrined in the Constitution) spreading disaffection against the government of the day should be categorized as a crime. We are a long way away from thinking that spreading disaffection against reigning regimes' may actually be seen as a valuable input for the functioning of the system, thus contributing towards better governance and accountability! (The Writer is an advocate of the Supreme Court)
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Sedition, free speech and dissent Five instances of sedition in 2010 alone - what does this tell us about our democracy? A FREE SPEECH HUB report
December 27, 2010
One of the laws under which human rights activist Dr Binayak Sen has been held guilty is sedition, or section 124A of the Indian Penal Code. The year 2010 has seen this law invoked by state governments on not less than five occasions, including Dr Sen's case. In one instance, in Karnataka, the publication cited by the police had been defunct for three years. In January 2010, Piyush Sethia, an environmental activist in Salem, Tamilnadu was charged with sedition for disrupting a government function by distributing pamphlets at a Republic Day function organised by the Salem district collector. The pamphlet, written in Tamil, questioned the displacement of lakhs of tribals due to Operation Green Hunt and the non-implementation of a Supreme Court order for the rehabilitation for villagers of 644 villages by the Chhattisgarh government. In February the Vice President of People's Union for Civil Liberties, Karnataka Chapter (PUCL-K), Dr E Rati Rao, was issued a sedition notice by Vijayanagara police for bringing out an in-house bulletin in Kannada PUCL Karnataka Varthapatra. Publication of the bulletin, which was meant for private circulation, was discontinued in September 2007. The Free Speech Hub, a 2010 initiative of the media watchdog thehoot.org, has documented these and other cases related to Free Speech. The controversy stirred up by speeches given by Arundhati Roy and Hurriyat leader SAS Geelani, among others, in October 2010, invited the charge of sedition. The government initially decided against initiating any criminal proceedings against the speeches, delivered at a seminar on Kashmir entitled Azaadi-the only way' in New Delhi on 21 October 2010. But the judiciary thought otherwise. After a group of Kashmiri
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Pandits grouped under the banner of Roots in Kashmir', filed a complaint seeking registration of criminal cases against RoyGeelani for the speeches they had delivered, a local city court on 3 November 2010 issued notice asking the Delhi Police to respond. Meanwhile, Justice Hima Kohli of the Delhi High Court entertained a Public Interest Litigation (PIL) seeking the initiation of criminal proceedings against Roy-Gilani with regard to the same speeches and issued notice on 16 November 2010. (Read : The sedition case against Roy-Geelani: A case of the reluctant prosecution) The Delhi Police submitted a report that the accused had made no inflammatory speeches and no offense as to sedition could be made out against Geelani, Roy and other speakers. But Navita Kumari Bagha, Metropolitan Magistrate (MM), rejected the Delhi Police report, and, going by newspaper reports, introduced a new term in the legal lexicon by labelling the police report as weird. The MM observed that there was prima facie cogent evidence against the accused and directed the police to file a FIR and submit a report to the Court by 6 January 2011. On December 10 this year the police arrested a lecturer of a Government college in Srinagar for allegedly setting an exam paper filled with questions related to the recent unrest in Valley. "Noor Mohammad Bhat, a lecturer at Gandhi Memorial College, has been arrested," IGP (Kashmir range) SM Sahai said. The police termed the question paper anti-India and seditious. Section 124 A of the IPC on sedition lays down that whoever by written or spoken words, or by signs or visible representations attempts or brings into hatred or contempt or attempts or excites disaffection towards the government established by law shall be punishable with life imprisonment. The explanations to the proviso exclude comments expressing disapprobation of government or administrative measures as long as they do not excite hatred, contempt or disaffection. Binayak Sen's is the fifth case, and first conviction this year. The sessions court judge who delivered the sentence on December 24 said he had been found guilty of sedition for espousing the cause of Maoist rebels and helping them.
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The Free Speech Hub of theHoot.org also released a report this year on press freedom violations in the state of Orissa which record four sedition cases registered in the state between 2004-2009: In February 2004, Keerti Chandra Sahu, working for a Behrampurbased Orissa daily, Anupam Bharat, was charged with sedition for allegedly aiding Maoists. In May 2007, Khaturam Sunani, a reporter working for OTV channel, was charged with sedition for filing a report that Pahariya tribals were consuming soft' dolomite stones (known locally as jhikiri) in Nuapada district due to acute hunger. On December 8, 2008, Lenin Ray, editor of Nissan, a radical literary magazine in Oriya, was picked up by police after a special booklet on the Kandhamal riots entitled Dharmanare Kandhamalre Raktonadhi' (Kandhamal's rivers of blood) was published by the magazine. On September 20, 2009, Laxman Chaudhary, a stringer with Oriya daily, Sambad, was arrested by Mohana police in Gajapati district and charged with sedition for possessing Maoist literature. Chaudhury had been writing about the involvement of local police in illegal drug trafficking. Is the law on sedition being invoked a little too often for a democracy that values free speech?
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Cybermedia : Virtually Free Speech

The Amended IT Act draconian or farsighted? The Act tries to deal with e-commerce on the one hand and on the other, regulates a whole host of civil society involvement with both cyber and mobile media. A Free Speech Hub report.
April 2, 2010
The implications of the sweeping amendments to the Information Technology (IT) Act 2000, passed in Parliament on December 23, 2008 and enacted in October 2009, have begun to seep in. Some cyber law experts and civil liberties groups associated with Internet freedom have termed the amendments as draconian', other cyber lawyers and cyber society organisations have welcomed the changes. The Act itself tries to deal with e-commerce on the one hand and on the other, regulates a whole host of civil society involvement with both cyber and mobile media (See box: Electronic signatures to obscene material). Moreover, contrary to the rather anarchic nature of both these media, where the production and transmission of information is technologically far easier than ever before, the controls the Act seeks to exercise over this process is highly centralised. The Information Technology Amendment Bill, 2006 was tabled before both the houses of Parliament in December, 2006 and was referred to a Parliamentary Standing Committee on Information Technology headed by Nikhil Kumar, MP. The committee's report was submitted in 2007). In December 2008, the bill was passed by both houses of Parliament but without any discussion perhaps because of the heightened apprehensions over security in the wake of the November 26, 2008 attacks in Mumbai. However, in its desire to ensure the greatest possible security in cyberspace, the Act gives sweeping powers to the government to intercept, monitor or decrypt any communication, giving rise to apprehensions that the freedom of expression will be under
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constant threat. Under Sections 69A and 69B, the Act grants power to the state to issue directions for blocking from public access of any information through any computer resource and to authorize to monitor and collect traffic data or information through any computer resource for cyber security. 69A specifically authorises CERT IN to block websites in response to requests for blocking from departments or individuals. The final permission has to come from the Secretary, Department of Information Technology. What can be the basis for a request to block? The Sovereignty or Integrity of India, the Defence of India, the Security of the State, Friendly Relations with Foreign States, Public order, and, for "preventing incitement to the commission of any cognisable offence relating to above." What about a right to be heard before the blocking? There is none. Another area of concern is the change in the definition of an intermediary' to include telecom service providers, network service providers, web-hosting service providers, search engines, online payment sites, market places and cyber cafes. In an obvious fallout of reaction to the Bazee.com case, intermediaries have been given exemption from liability in certain cases (Sec 79)- if their function is limited to providing access to a communication system over which information made available by a third party, is transmitted or temporarily stored or hosted or that the intermediary does not initiate the transmission, select the receiver of the transmission or select or modify the information contained in the transmission and observes due diligence' while discharging his duties under the Act. The act further appoints a national nodal agency - the Indian Computer Response Team (CERT-In) to deal with the entire gamut of cyber security. The agency has been given sweeping powers and there aren't any obvious provisions for checks and balances, giving rise to apprehensions about its misuse. The Act also stipulates rules for the enforcement of all its provisions. All the rules are yet to be drafted as cyber lawyers, civil society activists and internet' based cyber society groups are also divided. Some welcome very stringent controls over cyberspace, others are apprehensive of excessive controls over liberties and freedom of speech and expression.
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Clearly, there needs to be far greater awareness of the provisions of the law and its implications. In the absence of sufficient discussion and debate over these issues, the freedom cyberspace offers for communication and interaction and the exchange of ideas and opinions is in grave danger of being a notional one, constantly at peril. From Electronic signatures to obscene material The amended IT Act, 2000, has brought under its purview all communication devices including cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text video, audio or image'; it has replaced digital signature with an electronic signature' to make the IT Act more technologically neutral; it has extended the scope of the term intermediary' to mean any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes and it has ensured greater protection to sensitive personal data or information possessed by a body corporate or computer resource. The Act deals with several provisions related to the publishing or transmission of obscene material, sexually explicit material or child pornography in an electronic form. A host of sections (66A to 66F) prescribing punishment for offences such as obscene electronic message transmissions, identity theft, cheating by impersonation using computer resource, violation of privacy and cyber terrorism. While the definition of the last (cyber terrorism) is very wide, including even the unauthorised access to computer resources and obtain access to data or information that can cause injury to the interests of sovereignty, public order, decency or morality or in relation to contempt of court or defamation...), Section 66E is far more specific and actually lays down the exact body parts that cannot be transmitted (private area means the naked or undergarment clad genitals, public (sic) area, buttocks or female breast - Sec 66E (c))!
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Section 67 dealing with the punishment for publishing or transmitting obscene material in electronic form has been changed. While the term for imprisonment has been reduced from five to three years, the fine has been enhanced from Rs One lakh to Rs Five lakhs. Section 67B deals with children and punishment for the transmission of sexually explicit images or text, cultivating relationships with children online or facilitates the abuse of children online, records abuse in an electronic form and transmits it, etc. Children, for the purposes of the Internet or mobile media, are defined as being below 18 years of age.
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'Free speech includes the right to receive information' "Blocking goes against free speech because free speech includes the right to receive information. But technology does not help sustain blocking. The internet treats censorship as damage and routes around it." Taken from an interview with RODNEY RYDER, Advisor to the Ministry of Information Technology, and from his articles and presentations. Interviewed by Geeta Seshu and Sevanti Ninan What are the amendments to the IT Act of 2000 a reaction to? The proposed amendments to the Information Technology Act to a measurable extent are a reaction to recent developments such as service provider liability issues and auction sites; sleazy MMS clips and the like. In major part, desirable as most reactions are, offences under the Act have been made compoundable; that is to say, the parties can compound the case i.e. settle it between themselves. This is welcome as most crimes target specific individuals and it is right for individuals to sort out the situation. The offences which have been made compoundable are: Section 66: If a person dishonestly or fraudulently does any act which damages the computer or the computer system, he is liable to a fine of up to five lakhs or be imprisoned for a term of up to two years. A host of new sections have been added to section 66 as sections 66A to 66F prescribing punishment for offences such as obscene electronic message transmissions, identity theft, cheating by impersonation using computer resource, violation of privacy and cyber terrorism. Section 66A: If any person sends by means of a computer resource or a communication any content which is grossly offensive or has a menacing character or which is not true but is sent to create nuisance, annoyance, criminal intimidation, hatred or ill will etc shall be imprisoned for an imprisonment term which may be up to two years combined with a fine. Section 67 of the old Act is amended to reduce the term of imprisonment for publishing or transmitting obscene material in electronic form to three years from five years and increase the fine thereof from Indian Rupees 100,000 (approximately USD 2000) to
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Indian Rupees 500,000 (approximately USD 10,000). A host of new sections have been inserted as Sections 67 A to 67C. While Sections 67 A and B insert penal provisions in respect of offences of publishing or transmitting of material containing sexually explicit act and child pornography in electronic form, section 67C deals with the obligation of an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the central government may prescribe. On interception. In view of the increasing threat of terrorism in the country, the new amendments include an amended section 69 giving power to the state to issue directions for interception or monitoring of decryption of any information through any computer resource. Section 419A of the Telegraph Act prescribes ways in which you can intercept. It overrides the amended IT Act. Electronic communication is not admissible as evidence in court. The court will strike it down, but the judge may be influenced by it. The citizen is protected from the state, but not from other citizens. As for interception mobile communications and using them as evidence, short messaging has to be acceptable under the provisions of the Evidence Act. On blocking Further, sections 69 A and B, two new sections, grant power to the state to issue directions for blocking for public access of any information through any computer resource and to authorize to monitor and collect traffic data or information through any computer resource for cyber security. That includes websites. Websites that you ban cannot hit back. But technology does not help sustain blocking. The internet treats censor-ship as damage and routes around it. Blocking goes against free speech because free speech includes the right to receive information. On breach of confidentiality Section 72: If a person is found in possession of some confidential
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information like electronic record, book, register, correspondence and he is found disclosing it to any third party without the consent of the person concerned, then he shall be punished with imprisonment for a term which may be up to two years, or a fine which may extend to One Lakh rupees, or with both. Section 72A: If any person while providing services under the terms of the contract, has secured access to any material containing personal information about another person, with the intent to cause wrongful loss or wrongful gain disclosed the information, without the person's consent or in breach of a lawful contract, shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees or with both. Section 43(A) is related to handling of sensitive personal data or information with reasonable security practices and procedures. This section has been inserted to protect sensitive personal data or information possessed, dealt or handled by a body corporate in a computer resource which such body corporate owns, controls or operates. If such body corporate is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, it shall be liable to pay damages by way of compensation to the person so affected. Gradation of severity of computer related offences under Section 66 has been amended, now if an offence is committed dishonestly or fraudulently then punishment is for a term which may extend to two years or a fine which may extend to Rs 5 lakhs or with both; The addition of Section 72 A for breach of confidentiality with the intent to cause injury to a subscriber. This is recognised as providing sufficient protection under the EC Directive. Contractual agreements are those agreements which are signed between parties where one party provides services on the basis of the contract signed. There is always a provision in any contractual agreement of not to disclose any information which is imperative for the running of the business. According to Section 72 (A) if anyone is found disclosing any information of a third person, without his
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consent he shall be punished with imprisonment or a fine of Rs 500,000. The problem remains with ambiguous phrases. For instance, the amended Section 43 (A) makes it mandatory for companies to include reasonable security measures' while handling data. What precisely does reasonable' indicate is any one's guess. We would recommend organisations to follow the standards prescribed by the Computer Emergency Response Team (CERT). CERT's primary role is to raise security awareness among the cyber community and to provide technical assistance and advice them to help them recover form computer security incidents. A fresh' Section 68(A) has been proposed for providing modes and methods for encryption for secure use of the electronic medium. This is a welcome guidance. Section 69, related to power to issue directions for interception or monitoring or decryption of any information through any computer resource, has been amended to take care of the concerns of the Ministry of Home Affairs which include the safety, sovereignty, integrity of India, defence of India, to maintain friendly relations with other nations and preventing incitement to the commission of any cognizable offence. On privacy issues arising from the amendments to the IT act: While the amended version of the Act strengthens provisions on confidentiality, and data privacy; the inclusion of a solitary provision on data privacy is quite in contrast to Europe where data protection provisions are enshrined in Directives at the EU level and in national legislation. In fact, data protection is sine qua non for aspirant members to the European Union, and also for companies who receive data from the EU. Data subjects must have rights enshrined in explicit rules with a detailed enforcement mechanism rather than rather than relying on a lone section to do the task elsewhere performed by an entire Act! A detailed data protection law is needed; not merely for the ITES industry but for the citizens of India. The right to know balanced with the right to privacy is the hallmark of a democracy. The most important thing is not to have laws, but to have the apparatus. We always had the right to information, but the
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apparatus to achieve it was not there until the government set it up under the Right to Information Act. We need a privacy framework. The European laws on privacy have one. They have a commissioner to look at privacy suo moto. I feel CERT-IN is inclined to be pro privacy. They want every organization dealing with information to have a chief privacy officer. (Rodney D. Ryder is a leading technology, intellectual property and corporate lawyer. He is the founding partner at Scriboard; a full service legal consulting firm).
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A direct impact on free speech in cyberspace' Supreme Court advocate and cyberlaw consultant Pavan Duggal bemoans the absence of adequate checks and balances to the powers of the government in the amended IT Act. Interviewed by GEETA SESHU. The amended IT Act, 2000 is one cyber law that promotes ecommerce and grants legality to electronic communication. Prior to the November 26, 2008 attacks on Mumbai, the IT Act of 2000 covered the interception of information and the powers of the Controller of Certifying Authority to intercept information. However, a bill seeking amendments to this act was tabled in Parliament in 2006 and a report of a Parliamentary Standing Committee in September 2007 gave more coverage to cybercrime and cyber terrorism. Within a month of the November 26 attacks in 2008, the amendments were passed unanimously, notified in February 2009 and enacted in October 2009. The act has a direct impact on free speech in cyberspace. It was a knee-jerk reaction to the preservation of national security rather than a well-thought out plan. By the new provisions, cyber security legislation reduces practical difficulties, makes cyber terror offences punishable with imprisonment and adds more categories of cyber crimes, like cyber nuisances, stalking, cyber harassment etc. On the negative side, it makes all those crimes for which punishment is three years as bailable offences, save those crimes like cyber terrorism or breach of protected systems, which attract ten years punishment. Regarding Interception, communication monitoring or blocking of any
The other major drawback is that the new provisions, under Section 69, 69A and 69B, can intercept, monitor and block all communication - the last two provisions having been added after the November 26 attacks. Earlier, there were various checks and balances - the Central Government had appointed the Controller of Certifying Authority as a statutory authority for this task. But now, the Central government alone is the appropriate authority
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to intercept, monitor and block all information. So, whatever people talk or communicate in an electronic format - by audio, video or text - is now within the listening distance of the government. Primarily, there are no checks and balances to this. The government has now reserved for itself all rights to intercept. And, there is no statutory responsibility of the government to inform you that you are being intercepted. There are no checks and balances or to prevent potential misuse of this provision. The rules regarding this have been finalised but I need to check if they have been notified. How does the monitoring actually happen? I think the first steps would be to monitor, then intercept and then block - in its logical sequence. The problem here is that there are no checks and balances on the government or to prevent potential misuse of these provisions, because right now, the government is no longer required to go to a statutory authority or to the Controller of Certifying Authority. Further, the government is authorised, that, if it is satisfied that it is necessary or expedient to do so in the interests of the sovereignty or integrity of India, defence of India (this is a new one added in the 2008 amendment), security, friendly relations with other countries, or public order or for preventing incitement to the commission of any cognizable offence relating to these, then it may direct any agency of the govt to intercept, monitor or decrypt, as well as cause to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource. What does Friendly relations' mean? It is such a broad parameter Decryption means to unlock, to unsecure'.....Encryption is a methodology by means of which you secure any electronic information. the permission is to intercept, block and decrypt. Typically, a communication is going from point A to point B. The government, without informing Point A or Point B, can first monitor - just watch what is happening and if they find anything suspicious happening, they enter - they intercept - which means they can make a copy of the communication and then they
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block....Technically, they have reserved for themselves the right to protect national security, primarily in the wake of the November 26 attacks. I think there is no doubting the argument that every sovereign nation has got the sovereign rights to monitor and intercept, as well as decryption. However, it is important that the legislature must keep effective checks and balances on the intercepting authority. But here, the legislature has not done so. If the government feels that it is necessary for it to do so, it orders interception, monitoring, decryption or blockage. The amendments to the IT Act were passed unanimously. There was really no discussion or debate on this in Parliament. I don't think it has ever been tested. Pre-Amendment, it has never been tested and post-amendment, there have been no case. Most people are unaware or oblivious of the fact that there are provisions...Technically speaking, it is in part of the fundamental principles of natural justice or good conscience to inform the person who is being monitored. But the law does not mandate it - the writing of or of giving of notice to the person being monitored. It is unclear whether the rules have been notified yet, so we'll have to see if there's anything on this. But the Act itself is silent on this. The role of CERT-In (Indian Computer Emergency Response Team) CERT-In was created by a government notification in 2003 as the authority for blocking. But it has now been given tremendous powers... Isn't this completely in violation of the principles of natural justice? CERT-In draft the rules and then they sit in judgement... Yes, that is the position. There has been a tremendous concentration of powers behind CERT-In which pales all the other statutory authorities like the CCA (Controller of Certifying Authority) into insignificance. Earlier, the CCA was very powerful. Now CERT-In is the de facto nodal agency for cyber security. In addition, there are no checks and balances on the powers of CERTIn, which is effectively, again, not a happy scenario, given the potentiality of misuse. So I think, if you are a free speech expert or advocate for free
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speech, you have to realise that there are far more shackles on free speech because of the IT Act. What about the role of the intermediaries' under the Act? The ISPs have been brought into the ambit of a new concept created by law - the intermediaries' - under Sec 2 (1) (w) of the IT act. ....Sec 12 ... This is a classical section which attracted a lot of attention and debate in 2004-05 in the Bazee.com case which led to the arrest of the CEO of the website and respond to the persistent demands made by the internet service providers on the issue of their liabilities. The new amendments are old wine in new bottles in terms of liabilities of intermediaries. They now say that if you are an intermediary, you will not be liable for third party data but for doing that, you must show that you are not involved in the transmission, you must show that you performed due diligence, you must show that you have not aided, abetted or conspired in the transmission, and that you must show that upon receiving the information of anything controversial, you acted in removing the material....if you did all of that, then you would not be liable...but if you fail to fulfil any one of the obligations... Is that a better situation for the intermediaries? Now, intermediaries are in a far worse situation than before. Section 79 is a classical wonder of legislation. It earlier stated, in positive covenant - it talked of network service providers, who would be liable for third party data. The new Section 79 now says the same proposition, but with a negative covenant. Now it has a far bigger ambit than the earlier Sec 79, which was only dealing with network service providers. Now, it has a wider canvas, as under this, intermediaries have been defined, with respect to electronic records, under Section 2 (i) (w) to mean: Any person who on behalf of another person receives, stores or transmits any electronic records.. this also includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online-market places and cyber cafes.
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....... Now, by a single stroke, the legislation has made it extremely vast to include all these categories. So far more new people have been brought under the definition of the intermediary. The new law says that you will not be liable for third party data under Sec 79. However, you must fulfil the mandatory requirements under Sec 79 (2) where you provide access, do not initiate the transmission, select the receiver of the transmission, select or modify the information contained in the transmission, observe due diligence while discharging the duties under the act or observing guidelines the Central government may prescribe and Sec 79 (3), wherein you conspire or abet in the commission of the unlawful act or fail to expeditiously remove or disable access to material without vitiating evidence once you do receive actual knowledge or are notified by the appropriate authority that any communication link controlled by the intermediary is being used to commit the unlawful act. This effectively means that in an online speech violation, not only the person doing the so-called violation is liable but the service provider is equally liable if the intermediary, after getting to know about the information, failed to expeditiously remove it. This reposes far more responsibility in terms of free speech, which effectively means that any free speech content which is true but uncomfortable, can be effectively gagged by the government under the garb of this legislation. So, to that extent, I think the IT Act, with the amendments, is possibly one of the most overarching legislations in the country, because it is the only mother legislation which impacts all electronic communication devices...which virtually means 99 per cent of all electronic devices - the new amendments have brought communication devices under the Sec 2 (1) (h) (ha) - to mean cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image. So, in the absence of a strong watchdog on the government, free speech is likely take a back seat. No clarity on Privacy issues Another aspect of the IT Act is the lack of clarity on privacy. There
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is no law on privacy in India and the new amendments haven't done much in this regard either. We have a very primitive way of looking at privacy. Section 66E penalises the violation of privacy but reduces the entire issue to the private areas of a person and even specifies which body parts are liable to be violated under this section (private area: the naked or undergarment clad genitals, pubic area, buttocks or female breast). The punishment for this is three years imprisonment or a fine of Rs Two lakh or both, which is bailable. By keeping cyber crimes compoundable, there is also a deliberate loophole kept in the legislation and in several cases of cyber crime, getting convictions are difficult as those accused are getting bail and destroying evidence with impunity. There have been only three cyber crime convictions in the last 16 years though online cheating and crime is on the rise, with cases running into the thousands... So, while it is difficult to penalise petty crime, the danger of free speech being penalised is ever present.
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E-rebellion in Kashmir When citizens are under curfews, bans on television channels and curbs on newspaper distribution, they turn to cybermedia and even street graffiti for the freedom to express themselves, says FAHAD SHAH.
August 07, 2010
Change is the only constant. The struggle of Kashmir for independence from Indian rule is also changing as people shift their platform for protest as new media are made available. The internet has become the podium for the new generation to express their support. It was not so popular earlier in the valley; today most of the people who don't come on to the street to protest have taken the protests in everyone's heart to social networking sites like Facebook and video bank YouTube. The current movement of spontaneous protests in the last two months is led by the children of the conflict, born after the rebellion movement started in the valley. On Facebook, many groups and pages which support the movement are filled with pro-freedom and anti-India pictures, videos and posts. Members often raise a debate on any page or group to discuss how the current movement should be taken forward. Facebook has also become a fast means for circulating the latest news. The killing of seventeen-year-old student Tufail Ahmad Mattoo on 11 June while returning home from tuition sparked widespread protests in valley which have left more than 45 people dead so far. Tufail was killed inside a football stadium when police were chasing some stone throwers. Eyewitnesses say a policeman fired at him from close range killing him on spot. To express protest, Demilitarize KASHMIR, a Facebook page which has more than 1000 members, posted on its wall: It's a painful appeal to all the Kashmiri brothers to stand UNITED against the forces trying to divide us and sabotage our Revolution...Remember UNITED we STAND...DIVIDED we FALL!!! Despite a clamp down by the authorities on Facebook users who upload these kinds of posts, pictures or videos, e-protestors
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continue to spend hours on internet. In the Islamabad district of south Kashmir one user was called by the nearby police station to report in the station, claiming he was involved in anti- state activities on Facebook. Valley citizens who live outside the state in different parts of India and the rest of the world are also joining these e-protests. They say their absence from the valley makes them feel helpless when people are getting killed. The internet seems to be the only medium for them to express anger over killings back home in the valley. Sam Walker, an unknown Facebook user and an e-protestor says, I have a dream to live with justice, honor and peace. My brothers and sisters are sacrificing their lives for my dream. This makes me feel proud but I am sad too that I am not besides them on ground. From social networking sites to the street, people of the valley have become keen participants in graffiti protests by sketching profreedom, anti-India slogans in graffiti on roadside walls, shop shutters, electricity poles, tree trunks, and roads leaving no space which does not mark their protest. These graffiti protests started in response to the protest call given by a pro-freedom group, Hurriyat Conference (G), headed by its ailing Chairman Syed Ali Shah Geelani who recently returned from the hospital where he was undergoing treatment while arrested. A graffiti protestor, Khaliq Khan (name changed on request), from a downtown area draws sketches on walls in spray paint. He says he wants to register his protest through every medium of communication. We want freedom and we have to overthrow the occupational rule from our Kashmir. We will use every medium to vent out our anger against India. I ask him if he feels under threat: Yes I feel scared of being caught someday but one has to struggle to achieve something, he says, adding further that the J-K police and Central Reserve Police Forces have erased most of his sketches by painting them black. Last month I made nearly 60 sketches in the city but just four of them could survive, he said. On the internet also many social networking sites like Facebook are dotted with messages like Go India Go Back', Leave our Kashmir'
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we want freedom' and many quotes and poems related to the death or war. Most Kashmir activist Facebook users have changed their profile pictures to graphics displaying pro-freedom messages like Saeni kasheer-ay kya baneov? Alvida saeni shaheedo!' (What has become of our Kashmir? Farewell Oh martyrs!)', we may forget every crime of India in Kashmir but how can we forget the night when eight year old Yasmeena was raped thrice by troopers'. Shivali Verma (name changed) who lives in New Delhi and has been in Kashmir last year says when she logged in to her Facebook account back home she was astonished to see all her newly made Kashmiri friends with pro-freedom, anti-India pictures and posts in their profiles. She confesses she has mixed reactions about these messages written on Facebook; I felt strange because we are more used to see encouraging slogans and all this is very de- motivating even derogatory in a way, she said on Facebook chat. Continuing the curbs on freedoms the government banned Short Messaging Services (SMS) which has added to the chaos and tension among the youth and led them towards the internet to vent their anger. The ban was imposed by the state government on security grounds because people have been messaging each other regarding protests which the government says is spreading false rumors. The ban affected many people beyond the valley, such as Saqib Bhat (name changed), a photo journalist working in New Delhi, far away from his close friend studying here in the valley. SMS ban is a serious issue as the curfew keeps everyone jailed at home. We are even denied of the right to express the pain of separation with each other, he said. Even phone services are active in other parts of valley but in northern areas phone services are banned. Reproduced from Open Democracy (Fahad Shah is a freelance writer based in Kashmir)
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Facebook Face Off in Assam Frantic posts for and against well-known social activist Akhil Gogoi on a facebook fan page forced a shut down' of the page on August 4, days before a crucial offline protest was to be held, but the fans simply started another, says UDDIPANA GOSWAMI, recounting the saga.
August 10, 2010
RTI activist and peasant leader Akhil Gogoi is no stranger to Assam. Currently in the eye of a storm that began in print media, spilled over onto cybermedia and now, onto the streets, Gogoi's crusade against corruption in Assam politics is a battle that has been raging in Assam in recent months. The war of words in the media spawned facebook fan pages that were shut down and another that started almost immediately and culminated in a candlelight vigil in different places in Assam and New Delhi on August 8. The offline protest almost didn't happen, thanks to disinformation about the campaign deliberately spread on Facebook (not again!). This time, ingenious counter-activists (if there is such a term), launched a virtual vilification campaign and posted information that the candlelight vigil was actually a candlelight cocktail party, in an attempt to trivialize the entire exercise! But first, some background to the fracas. Akhil Gogoi has been leading mass movements against social evils for many years now, from fighting to ensure the rights of landless peasants under the banner of the Krishak Mukti Sangram Samiti (KMSS) since 2005, to protestingagainst mega dams in the Northeast. He also uses the Right to Information (RTI) Act as an instrument to expose corruption in government sponsored schemes such as the Indira Awas Yojana (IAY) and the National Rural Employment Guarantee Scheme (NGRES) among others. Not all of Gogoi's efforts have gone unnoticed either. In 2008, he received the Shanmugam Manjunath Integrity Award for his anticorruption stance. Earlier this year, he was awarded the national Right to Information (RTI) Award by the Public Cause Research
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Foundation (PCRF) for exposing the Rs 1.25 crores scam in the Sampoorna Gram Rozgar Yojna (SGRY) and the Rs 60 lakhs scam in the Indira Awas Yojana (IAY) in Golaghat district of Assam by using the RTI Act. It is a little surprising therefore, that his latest series of exposs should not be accorded the dignity of being part of his larger anticorruption agenda and pro-people stance. A section of the media claimed that Gogoi's exposes are really about one man versus another - a limelight-seeking social activist (albeit an RTI activist and peasant leader) versus a prominent politician, Himanta Biswa Sharma, Health Minister of Assam. These media outlets were content to label Gogoi's corruption crusades as a personal vendetta against the minister in question, Himanta Biswa Sharma. And they have been vicious in attacking the former. One of the three satellite television channels in Assam, Newslive, has been particularly vicious in its attacks of Gogoi. The channel, after all, is owned by Sharma's wife and Gogoi has also publicly questioned the source of the Rs 100 crores spent to launch the channel in 2008. In 2006, according to Sharma's own admission, his family's total assets amounted to Rs One crore. As the battle between the two adversaries continues unabated, and as each press conference called by Akhil Gogoi to expose one instance of corruption by the minister prompts another press conference by Sharma to counter the allegations and raise new ones against Gogoi, the satellite channel, DY 365, alone has been adopting a non-partisan stance and reporting both sides of the story. Newslive has often treated Gogoi's press conferences as nonevents while playing up Sharma's press meets, thus bringing into question its credibility as a news channel. Enter cyberprotests and Facebook fan pages Meanwhile, as this battle was being played out on ground and given its share of fair and unfair media coverage, a group of young, educated, mostly non-resident Assamese people had started making their support for Akhil Gogoi public through Facebook. Aryama
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Dutta Saikia, an education consultant based in Delhi, started a Facebook page in 5 May 2010 to, as she says, inform a close circle of friends about the good work being done by Akhil Gogoi. Saikia had no idea that her page would soon attract more than a hundred people, Assamese and non-Assamese, residing in Assam or elsewhere. Soon Saikia's small project gathered momentum on Facebook with strong sentiments against corrupt politicians and practices in Assam being expressed through the Supporting Akhil Gogoi page. Saikia maintained her dignified stance through her page not to attack any single personality and to extend support to Akhil Gogoi not as an individual crusader but as a voice against the rampant corruption in the political circles in Assam. Despite this, personal attacks and misinformation began flooding the Facebook page. Impersonations of various people - ranging from Akhil Gogoi himself (who has never been on Facebook) to other people who likeed the Facebook page - started cropping up. Some pseudonyms and fake IDs were also thought up and were used to post many anti-Gogoi remarks on the page. To every such remark, there would be a spontaneous outflow of vehement support for Akhil Gogoi and his movement. As the number of people who like-ed the Supporting Akhil Gogoi page increased and swelled to over 1500 by July 2010, the forces behind the vilification campaign changed track. They began to report abuse to Facebook. Now, Facebook policy requires 100 complaints from various users against a particular page to shut it down while it examines the truth behind the reports. In this case, the Supporting Akhil Gogoi page was shut down on 4 August, at the crucial time for the group of people who had now mobilized themselves through its medium to translate their online activism to on-ground protests against corruption. The plan was to hold simultaneous candlelight vigils and a number of mouna xuko xabha or silent condolence meets to mourn the death of honesty in Assam at various locations in and outside Assam. August 8 was fixed as the date when the Facebook supporters would use candles and black arms bands instead of the mouse and
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a keyboard to show that they really cared about their state. The protest demonstrations and vigils did take place despite the fact that the page was shut down just four days ahead of D-day. Saikia and a band of enthusiastic young people put together a Facebook group of the same name the very next day and it is already beginning to gather members. The candlelight vigils and black arm band events were organized in Delhi, Guwahati, Jorhat and Nagaon on 8 August by Saikia and her group. The vigils held in Assam saw more than 100-150 people attending each event, while more are being planned at various other places around the country and abroad. All this, despite the last minute confusion about the disappearance of the original Facebook page, the subsequent regrouping of the anti-corruption supporters under the new Facebook group started on August 4 with just four days to go before the proposed vigils, and what is more, the creation of a new Supporting Akhil Gogoi page by an unknown individual or group on August 4. This new page started posting a lot of misinformation about the proposed events of 8 August, claiming that the candlelight vigil to would now be a candlelight dinner and cocktail party and trivializing the entire exercise. Scatological language and personal attacks against those involved in the anticorruption campaign were also made through this page. Despite all these efforts however, the Supporting Akhil Gogoi group continues to attract more like-minded and free-thinking individuals and Assam's cyber space is abuzz with offers of help in this campaign from non-resident Assamese everywhere in the world. Entire generations of young people have been fleeing from Assam for decades now to escape the spectre of violence, rampant corruption and social degradation in the state. A new trend is now evident - many of them want to go back home. But first, the house needs to be put in order. Efforts like Akhil Gogoi's from within and that of the Supporting Akhil Gogoi group from without are steps towards this. In the final analysis, it is important not to allow one's voice to be gagged, whether on the ground or in cyber space.
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As students vent on Facebook, school authorities get edgy Students in Vadodara and Chandigarh were suspended by school authorities for using the social networking site to air their grievances and sentiments, but is freedom of expression a casualty here?, asks GEETA SESHU.
October 19, 2010
In the ephemeral world of Facebook, there is only so much time to take anything seriously. Or so one imagined, before two groups of students, in two separate incidents, were suspended by school authorities for posting abusive comments on their teachers. The suspensions have raised issues about freedom of expression in social networking groups like Facebook, about privacy amongst friends' who one may not even know personally, and about when a private' comment about a public' body like a school or an institution in a social network site then becomes and public' and open to action. In the normal course, students post comments on their school authorities or their teachers. Their friends' express their likes or add their comments. Soon, the friends have moved on to another status report, another set of comments and likes and sharing of posts and photos...But this time, authorities in both schools took offence. The three-month suspension of 16 Class XII students in Chandigarh's Vivek High School for posting abusive comments about their teacher comes barely a few months after a similar weeklong suspension of six students of Convent of Jesus and Mary in Vadodara, this time for casting aspersions on the role of teachers in a school election. While the suspension of the Vadodara girls were revoked when they apologised, the fate of the Chandigarh students still hangs in balance and will be decided today. According to news-reports, a student of the school (name withheld) was angry at his math teacher for his low grades. He posted an image of his test scores along with rude and abusive' remarks
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about the teacher. At least 15 of his classmates responded and made comments supporting him and allegedly egging him on. It was only when a faculty member discovered the comments a week later that action was taken against the 16 students. The school director, H S Mamik, is quoted as saying, We cannot tolerate indiscipline, particularly disrespect towards any teacher," adding that "The comments posted are not just negative but obscene, rude and abusive." The suspended students said the management's action infringed their privacy and right to free expression. "The school has no business to peep into our personal and online lives," one student told a reporter. A meeting of the school's authorities scheduled for October 18 was postponed to the next day and there is hope that the period of suspension will be reduced. According to reports, the students and parents will also undergo regular counselling sessions. Free speech and privacy figured in the suspension of students from the Vadodara school too. In this instance, the election of a Head Girl was the bone of contention, when two groups of students clashed' on the school's fan' page. Three girls, one from Class X and two from Class XII, started a thread in which they accused the school authorities, a teacher and three other students of rigging the election, said a parent who declined to be identified. The issue escalated after students backing the elected candidate replied using strong language. The school management then reported the matter to the District Education Officer S P Chaudhary, who instituted an inquiry. However, after an apology from the students, the suspension was revoked and the matter ended there. But only for the moment, as it appears. That youth are the majority of the 16.7 million Facebook users in India is a no-brainer...but what of their exploration of online social relationships, their networking with friends' who they may not personally know and the challenges to their privacy? Also, if they do
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express their adverse personal opinions (as they do on so many issues) against class teachers or their educational institutions, can the institution take umbrage? More to the point, if the institution does so, as it happened in these cases, does it violate an infringement of the students' right to freedom of speech and expression? An online poll conducted by DNA (Daily News and Analysis) newspaper on whether the Vadodara school students deserved to be suspended was divided roughly equally between Yes, the comments were on the selection of the head girl (33 %), No, it's too harsh ??" why should the school care?(31%) and It's for the school to decide what's best (36%). The last is revealing, as it gives an edge to the notion that the authority wielded by educational institutions over students is sacrosanct. Most schools keep close tabs on the facebook pages of their students and teachers who are befriended stay in touch with their students and their issues. As students become smarter, they utilise privacy controls to keep their comments out of the purview of teachers. But what should the response of educational institutions be to legitimate grievances, opinions or views expressed by their students, especially those adverse to them? Kavita Anand, executive director of Shishuvan, an ICSE school in Mumbai which has acquired a reputation for doing things differently, is aghast that schools must suspend students who hold dissenting, even adverse, views about their institution. In our school, almost all the students are on Facebook and they write all sorts of things. They have polls on their favourite teacher and the teachers they don't like. But we ignore these posts. We are in the process of making the school website interactive and had a lot of discussions on how to deal with dissent. We have blogs run by students and by teachers, she says. The school's tryst with free speech actually happens offline, in a special students council, where both students and teachers are encouraged to speak up about their issues with one another. So we
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have students complaining about teachers they don't like, or give them too much homework and teachers complaining about a class that gives them too much trouble...Counsellors are tracking the posts on Facebook, but there is no intrusion, they are just watching the discussions, she said, adding that there has to be more tolerance of opposing points of view. In February this year, in an interesting case in USA, the constitutional right of a high school student suspended by her principal after she set up a Facebook page to criticize her teacher was upheld by a magistrate, Barry Garber. The latter denied the principal's motion to dismiss the case and allowed a lawsuit by the student to move forward. The student was protected constitutionally under the First Amendment, the magistrate ruled. The case is seen as a significant step forward for free speech on the internet. According to reports, Katherine Evans, now 19 and attending college, was suspended in 2007 from Pembroke Pines Charter High School after she used her home computer to create a Facebook page titled, "Ms. Sarah Phelps is the worst teacher I've ever met." "Evans' speech falls under the wide umbrella of protected speech," he wrote. "It was an opinion of a student about a teacher, that was published off-campus ... was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior." Even if they are let off the hook because their education will be jeopardised, it is clear that the argument for free speech is not on the radar of the schools which suspended their students. But with the spread of the internet in India, perhaps it is only a matter of time.
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Mobile Media: Breaking age-old silences

Vox Populi Chhattisgarh - What an Idea, Sirji! Men and women from the Gond and Oraon tribes, beyond the pale of any media attention, now use mobile media to get their stories out to other tribals and to the world at large. GEETA SESHU on how C G Swara has gifted communication to those living beyond the digital divide. A Free Speech Hub review.
May 15, 2010
In a powerful assertion of the right to freedom of speech, as well as the right to be heard, CG Net Swara - CG for Chhattisgarh and Swara or voice - is a unique initiative to use mobile media to both reach out to tribals in remote villages of Chhattisgarh and, in turn, get them to reach out to the world at large. The move has considerably helped breach the wall of silence that lies between the people of this trouble-torn state and their neighbours. Hitherto rendered completely invisible - either because of the ongoing Operation Green Hunt and the clamp-down on free media movement or because of poverty and underdevelopment - the residents of this ancient region of India, predominantly from the Gond and Oraon tribes, are beyond the pale of any media attention. Accomplished through the innovative use of the mobile phone, CG Swara has already got more than 200 audio messages on a variety of topics - from an interview with a young adivasi girl who excels in arm-wrestling, a poem on homework, the water shortage in some areas, pollution from a sponge iron factory in Bastar, the need to shift out a liquor shop, denial of salaries to school workers and, in a measure of the desire for creative self-expression despite the strife, even poetry and songs! In this instance, hearing is truly believing and even a cursory listenin demonstrates the power of the message. The technology that drives these messages is simple: users, or citizen journalists as they are called, dial a number in Bangalore 080 66932500 - and a recorded message directs them to press one
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if they wish to give some news or record a message and two if they wish to hear messages posted by others. The messages are delivered in different languages and dialects - Gondi, Hindi, Kudukh and Chhattisgarhi. Once messages are recorded, the information relayed is checked by a moderator and a team familiar with the language and the region given and then the message is posted back on the service to be relayed to other listeners. This pioneering effort is the brainchild of former BBC journalist Shubhranshu Chaudhary, originally from Chhattisgarh but now based in Delhi. Chaudhary felt that mainstream media was completely cut off from the locals of Chhattisgarh. He set up CG Net - a people's website for Chhattisgarh. But this was clearly not enough. I wanted technology to bridge the digital divide. This is an area with low literacy and poor traditional print and TV media presence. But there is a healthy mobile phone penetration here, Choudhary explains in an interview with Open Magazine. The point was to reach the people of Chhattisgarh through this platform. Choudhary took his plan to the International Center for Journalists, Washington, DC. Then, with the involvement of Bill Thies, a Massachusetts Institute of Technology (MIT) graduate now working at Microsoft in Bangalore, Chaudhary developed the internet-radiocum-website system, funded by MIT, Microsoft and the U.S.- based Knight International Journalism, of which Choudhary is a Fellow. The Chhattisgarh project is similar to an initiative in South Africa (Iindaba Ziyafika, meaning the news is coming, but the former is designed as people to people audio communication. What sets it truly apart is the context of conflict and strife it operates in. For the last few years, the people of Chhattisgarh have been struggling to survive the rapid erosion of their natural wealth by mining companies, an aggressive Maoist movement pitted against the Salwa Judum or the violent vigilante squads aided and abetted by the state since 2005 and now, Operation Green Hunt. The struggle has taken its toll: more than 1000 villages have been emptied out, brutally displacing at least two lakh people. What is life like really for the people of this area? For the rest of
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India, the arrest of well-known activists or journalists, the campaign to secure the release of Dr Binayak Sen, taken into custody for allegedly aiding members of the banned Maoist organisation or the killing of CRPF security forces in Dantewada , makes headlines. But the day-to-day issues of the people, their struggle for simple everyday necessities - water, food, education, medical attention - none of this scratches the surface. Local journalists of Chhattisgarh as well as those parachuting in from bigger metros like Mumbai and Delhi have all written about the travails of reporting from this area - police and security forces label any journalist who writes about the problems of the people as Maoist', their movements are monitored and often, curtailed. Chaudhary wrote earlier too, of other insidious ways in which journalists get monetary incentives from big mining companies to keep real' news off the presses. So what happens when tribal activist Prakash Korram is picked up by the police and there is no information of his whereabouts? In the ordinary course, Ekta Parishad, the non-governmental organisation he worked for would have sent petitions, press releases and the like, without any guarantee of a response. However, with CGnet Swara, things changed. The Ekta Parishad coordinator Agnu Ram Sahu called up the Bangalore CG Swara mobile number and Sahu reported the incident but the police still denied Khurram was in their custody. But after police began receiving several phone calls enquiring about Khurram and the pressure of scrutiny got too much, the latter was released on bail. In north Chhatisgarh at Jashpur, Mamta Kajur of Adivasi Mahila Mahasangh, a tribal women's empowerment group, was trained by CG Swara in February 2010. Mamta and others used CG Net Sawara to mobilise a rally of around 5000 villagers on awareness of local issues at Kunkuri village in Jashpur. The CG net website lists other impacts: school teachers of an ashram shala in Dantewada who get their salaries, government officials took note of complaints on pollution of a sponge iron factory in Bastar, Gainsingh Bhaiya who reports, through Mornaam
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Bhansa, from the Ambagarh area about the water situation, a liquor shop is shifted out of Bijapur town after a swara report on Prakash, who reports on a Shiv Sena campaign against Valentine's Day! This has now become appropriate technology' for the region, says Choudhary, explaining why, in spite of an expensive (10-20 Indian rupees or 22-44 U.S. cents) long-distance mobile phone call, the number of calls to the Bangalore number has risen exponentially in the last two months (IPS feature). The majority of tribals are Gondi. They number at least four million but don't have a single radio news bulletin in their local language. Gondi also has no written script and the oral tradition is strong, perhaps one of the reasons why the tribals have taken to such a simple audio medium where they can narrate their lives and listen to the narratives of others. Chaudhary, in an interview, expressed surprise at the ease with which the tribals picked up this technology. He had planned extensive training and orientation sessions. but the word of mouth publicity was enough to see the service get at least 50 calls a day, with one in three messages being posted on the service after being checked and verified. The challenge to make communication truly democratic and universal got a boost, thanks to the innovative use of mobile technology in Chhattisgarh. How far it is allowed to further free speech and expression remains to be seen. As the political conflict in the region becomes more intense, it is anyones guess how long this communication system will be allowed to go on unhindered. But till then, residents of Chhattisgarh are asserting their right to be heard, loud and clear!
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Monitoring government surveillance of Blackberrys The agreements between governments of various countries and Research in Motion (RIM) to allow Blackberry services is now under a scanner, says an announcement from CITIZEN LAB, the well-known research network.
November 07, 2010
Governments of several countries, including India, have threatened to block encrypted Blackberry services if these are not made available to the governments or security agencies. In some instances, RIM has had to enter into data sharing agreements with them. In India, Blackberry services will be allowed until January 31, after which an agreement will be finalised with the government. But what exactly is the nature of these agreements and how do they impinge on the user's right to privacy? Citizen Lab, the well-known interdisciplinary laboratory based at the Munk School of Global Affairs at the University of Toronto, Canada, has launched Project RIM Check, a research project designed to gather information on how traffic exits the BlackBerry network depending on the country in which the user is located. Citizen Lab said that a major concern of these regimes is that BlackBerry data can be encrypted and routed through servers located outside of their jurisdictions. Unconfirmed reports have circulated that RIM has made data sharing agreements with India, Saudi Arabia, and United Arab Emirates. Other countries are also requesting the company to locate data centres within their jurisdictions. The findings from Project RIM Check will be published and made publicly available. Hosted on a website, the project is being conducted by the Information Warfare Monitor. The website is maintained by the Citizen Lab at the Munk School of Global Affairs, University of Toronto. The Citizen Lab focuses on advanced research and development at the intersection of digital media, global security, and human rights. Its website states that it
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is: a hothouse that combines the disciplines of political science, sociology, computer science, engineering, and graphic design. Our mission is to undertake advanced research and engage in development that monitors, analyses, and impacts the exercise of political power in cyberspace. We undertake this mission through collaborative partnerships with leading edge research centers, organizations, and individuals around the world, and through a pioneering fusion methodology that combines technical reconnaissance, field investigations, and data mining, analysis, and visualization. The Citizen Lab's ongoing research network includes the Information Warfare Monitor, the OpenNet Initiative, and Opennet.Asia. Project RIM Check has been welcomed by the reputed journalists' body, Reporters without Borders. In a statement, the organization said that it: declares its support for this initiative, which is intended to generate information of interest to concerned BlackBerry users. Launched just as India has called off its threat to shut down BlackBerry services, this project is intended to establish who has access to what as a result of the concessions that RIM is believed to have made in response to demands from governments for more and more access to their citizens instant messaging, emails, texts and other electronic communications. India has reportedly reached a provisional agreement with RIM allowing it to intercept BlackBerry services. The deadline for reaching a definitive agreement is 31 January. So, for the time being, Blackberry services are not going to be suspended in India. But at what price? This is what Project RIM Check is intended to answer. The initiative is able to monitor BlackBerry data traffic and shed light on the data's security. BlackBerry users are invited to go to the project's website (http://rimcheck.org/) in order to provide Citizen Labs researchers with the details that will allow them to monitor traffic
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flow and identify the location of RIMs servers. Citing the need to protect national security, various countries have of late been pressuring RIM to install servers within their territories in order to allow surveillance of BlackBerry communications. Reporters Without Borders has voiced concern about these initiatives and the danger of facilitating government surveillance of dissidents. It has also asked RIM to be more transparent.
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The Culture wars : Free Speech struggles over art, literature, cinema
Shiv Sena forced to respect freedom of expression! Audiences defied the Shiv senas threat to disrupt screenings of My Name is Khan and asserted their right to choose what they should watch. A Free Speech Hub report by GEETA SESHU
February 12, 2010
Friday signifies birth, death or resurrection for many a film career with the release of a film in theatres across the country. Friday, February 12, 2010, was no different, save for the fact that it spelt doom for the political career of Maharashtra's Shiv Sena - humbled into a blustering silence by audiences who defied its threat to disrupt screenings of the Shahrukh Khan starrer My name is Khan'. Angered over the comments made by the actor supporting the inclusion of Pakistani players in the third Indian Premier League (IPL -3) cricket tournament, the Shiv Sena decided to target the release of the film. For more than a week before the release of the film, Shiv Sena activists threatened to stop the films screening, protested outside the actors home and tore posters of the film, warning multiplexes not to screen it. The Shiv Sena has a long history of protests and intimidation of media, and of culture targeting: Marathi newspaper Mahanagar for its critical stance on the issue of Marathi identity (1991, 2004) , Deepa Mehtas film Fire, over the theme of lesbianism in the film (1998), artist M F Husain for his depiction of Hindu goddesses (2005, 2007), Zee television channel over a skit Kaka mala vachva (Marathi for Uncle, protect me), satirising the power struggle in the party (2006) and the offices of television channel CNN-IBN over its critical comments on Shiv Sena leader Bal Thackeray (2009). However, this is the first time it has had to climb down from its position, forced by the audience turnout on the first day of the release of the film. In an editorial in the partys newspaper
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Saamna, the Shiv Sena leader Bal Thackeray said that the party was not going to protest the screening of the film. Furthermore, the party had also decided to withdraw its earlier opposition to the involvement of Australian players in the forthcoming IPL tournament and a churlish Bal Thackeray complained that no one seemed to have any sense of patriotism left! A soft target for the Sena For the Shiv Sena, trying feebly to respond to the public reaction to the visit of Congress-I leader Rahul Gandhi and the comments by industrialist Mukesh Ambani that Mumbai belonged to all, Hindi film actor Shah Rukh Khan and his forthcoming film seemed like a soft target. Khan is also a franchisee owner of an IPL team, the Kolkata Knight Riders. In an interview to a television channel, Khan deplored the treatment meted out to Pakistani cricketers during the IPL auction held on January 19. None of the franchisees bid for the 11 Pakistani cricketers who had been released by the Pakistani Cricket Board to play for the tournament, ostensibly over security issues in the wake of the November 26, 2008 attacks in Mumbai. Khan was also critical about the statements of the Shiv Sena over the participation of Australian cricketers in the tournament, again in the wake of race attacks on Indians in Australia. Angered by his stand, the Shiv Sena demanded that he apologise for his remarks, failing which the party would not allow the release of his film My Name is Khan. However, Khan refused to apologise, reiterating that he had said nothing wrong. On January 30, activists of the political party tore down posters of the film in Thane, a district neighbouring Mumbai. On February 1, Shiv Sena members protested outside the residence of actor Shah Rukh Khan and stepped up the pressure on multiplex owners not to release the film. Khan continued to maintain that he had said nothing wrong and expressed his willingness to speak to Bal Thackeray to explain his stand, if necessary. The Maharashtra government then announced full protection to theatre goers and said that the film would be released as per
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schedule. Police deployment outside theatres was stepped up and over 2,000 members of the political party were reportedly detained on the eve of the films release on February 12. With assurances of police protection, multiplex owners then decided to release the film as scheduled. Maharashtras Home minister R R Patil even went for a screening at a prominent multiplex on the first day of the release. But what took everyone unawares, including both the Shiv Sena as well as the films producers, was the turnout of the general public for the film. In the past, a majority of viewers had stayed away from theatres fearing trouble. In this instance, a majority clearly came to the theatre to watch the film, defying the Shiv Sena threat and asserting that their right to choose what they should watch could not be taken away from them. And that made all the difference.
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Husain's nationality: Pyrrhic victory for fundamentalists Renowned painter M F Husains decision to give up on his Indian nationality was the subject of intense discussion, less so was the culture of intolerance that pervades every sphere today. A Free Speech Hub report by GEETA SESHU
March 01, 2010
When the 95-year-old artist M F Husain decided to accept the nationality offered to him by the Middle Eastern state of Qatar, he turned his back on more than five years of persecution and vilification and handed out a Pyrrhic victory to the Hindu fundamentalist forces who had hounded him for his depiction of both Hindu deities and the map of India. Hindu fundamentalist organisations, mainly the Hindu Jagruti Samiti, the Bajrang Dal and the Vishwa Hindu Parishad, unleashed a campaign against the painter. An astonishing 900-odd cases were filed against him in various parts of the country. His painting were vandalised, his house was attacked and in 2006, he was forced into a self-imposed exile from his native land. In several interviews, Husain repeatedly stated that nationality was a mere piece of paper and that he continued to feel Indian. He also believed that the attacks targeted art and self-expression and felt rejected by the political leadership in India. The painters decision to accept Qatari nationality evoked strong reactions around the country, with Hindu fundamentalists keeping up their demand that Husain appear in court. Shiv Sena leader Bal Thackeray, in an editorial in his party newspaper Saamna, rather grudgingly said that Husain was a great painter and could come back if he apologised. The RSS also said that they would not oppose his return if he apologised. Husain had apologised, not once but several times, but fundamentalist groups felt that this was half-hearted. Others, like Tamil writer and editor of Tuglak, Cho Ramaswamy, derided his decision to accept Qatari nationality as the country was not known to uphold freedom of expression. Artistic freedom of expression had no place before religious belief, his detractors said, casting
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aspersions on his intentions. The argument that there are enough examples of the nude depiction of gods and goddesses in art through the ages cut no ice with them. Increasing attacks on artists While the change of nationality became the main focus of discussion, there was little acknowledgement of the culture of intolerance that prevails over all forms of expression today. Writers, artists, film-makers and academicians have been viciously targeted and any whiff of protest that those offended' by any thought, word or deed, has immediately resulted in a clampdown by the state. Husain was, of course, not the only artist to have been attacked by fundamentalists. In 2006, artists Sanjeev Khandekar and Vaishali Narkar were charged with obscenity by Mumbai police. In 2007, art student Chandra Mohan was attacked for his art work submitted for evaluation at M S University's Fine Arts Faculty. The dean of faculty, Shivajirao Pannikkar was suspended for standing up for his student. In 2008, artist Jehangir Jani had to remove two exhibits from his show in Mumbai as they were attacked for being explicit! But the sustained and virulent attack against the prolific Husain has been exceptional, with Hindu fundamentalist organisations devoting websites and blogs to his paintings of nude Hindu gods and goddesses. Like someone stalked, every move of his was closely monitored and his exhibitions or auctions of his work became the focus of the protest. Husain had been painting Hindu gods and goddesses since 1970 but it was in 1996 that his paintings attracted controversy when Vichar Mimansa, a Hindi monthly magazine, published them in an article entitled M.F. Husain: A Painter or Butcher'. In 1998, his house in Mumbai was attacked and his paintings were vandalised, allegedly by activists of the Bajranj Dal, an act that received the support of the Shiv Sena. Several cases were lodged against the artist in various parts of the country, charging him with offending religious sensibilities and obscenity. In 2006, a painting entitled Bharatmata (Mother India), part of a show Art For Mission Kashmir, organised by Nafisa Ali of Action
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India (NGO) and Apparao Art Gallery, was targeted by the Vishwa Hindu Parishad and the Hindu Jagruti Samiti. The painting depicted a nude woman kneeling in the position of a map of India with the names of Indian States on various parts of her body. Husain apologised and the painting was withdrawn from the exhibition but this did not assuage the fundamentalist groups who mounted another campaign against him. When Husain received death threats, he left India, moving to London and Dubai and, finally, to Qatar. Stand of the judiciary is clear The cases against him were later consolidated into six cases in Baroda, Mumbai, Bhopal, Indore, Haridwar and Rajkot. In 2007, acting on the artist's plea that he was too old to travel to Haridwar to attend hearings, the Supreme Court clubbed four cases together and these were quashed by the Delhi High Court in May 2008. In his judgement dismissing the criminal complaints, Justice Sanjay Kishan Kaul was unequivocal: A painter has his own perspective of looking at things and it cannot be the basis of initiating criminal proceedings against him. In India, a new puritanism is being carried out in the name of cultural purity and a host of ignorant people are vandalising art and pushing us towards the pre-renaissance era. A painter at 90 deserves to be sitting at his home and painting his canvas (rather than living in exile). It was also clear that the response of lower courts to such complaints was at variance from that of higher courts. Justice Kaul observed that frivolous and vexatious complaints, which impinge on the basic freedom of an individual, should be scrutinised in a strict manner at the magisterial level itself. It should be ensured that the criminal justice system was not misused, he said. In September 2008, the Supreme Court dismissed appeals against this order and upheld the quashing of proceedings against Husain. Turning down a plea to prosecute the artist on obscenity charges, Chief Justice of India K.G. Balakrishnan had observed: There are so many such subjects, photographs and publications. Will you (the
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complainant) file cases against all of them? It is art. If you dont want to see it, then dont see it. There are so many such art forms in the (Hindu) temple structures. Today, only three cases are pending against the artist in the lower courts in Delhi. Despite the clear stand of the courts in these cases, the sustained attack on Husain and his work left the artist besieged and hurt at the apparent lack of support both from artists and from successive governments. Regardless of assurances from the government that he would be given security, Husain felt that too little was really done. As Husain slips away from the glare of the media and the fuss about his nationality dies down, what remains is the hole in the canvas, one-dimensional and bereft of interpretation.
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Should not writers be made of sterner stuff? Political expedience forced the Marathi Sahitya Sammelan to sidetrack an important discussion on freedom of expression. It was a tragic omission given that the Sammelan has become a victim of interference in literature, feels VIDYADHAR DATE.
April 05, 2010
Poet T S Eliot spoke of April being the cruellest month in his poem The Waste Land. March turned out to be the cruellest month, and the literary scene in Maharashtra is sought to be reduced to a kind of wasteland, taken over by corporate houses and politicians. Freedom of Expression was the theme of a special session of the 83rd Marathi Sahitya Sammelan, the prestigious literary conference attended by thousands in Pune in the last week of March: but alas, the issue was completely sidetracked due to political expedience. In Maharashtra, more than elsewhere at present, the issue was crucial because of recent threats to film and books both from political parties and from socio-political groups including the Shiv Sena, the Maharashtra Navnirman Sena and the Maratha Mahasangh and even educational institutions run by politicians. The release of the Marathi film Jhenda was delayed because of objections to the resemblance of the character of a defector politician from the Konkan region in Western Maharashtra to Maharashtra's revenue minister Narayan Rane. Education barons were upset that the film Shikshanachya Aicha Gho exposed them, and a serious law and order situation arose over the Shiv Senas threats not to allow the screening of Shahrukh Khans film My Name Is Khan. The sammelan itself has been a victim of interference in literature. At last years sammelan, the President, Anand Yadav, could not even deliver his presidential speech or attend the sammelan because of threats. Even the copies of his speech were not allowed to be distributed. Last year, the threats were issued by members of the Warkari sect
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(who are inspired by saint literature) and who are otherwise considered reasonably tolerant as a community. They alleged that Mr Yadavs novel Sant Soorya, on the life of the 17th century Sant poet Tukaram, had tarnished his image. The very title of the novel, comparing Sant Tukaram to the Sun, suggests that maligning the Sant was far from the mind of the author. So what happened in Pune this year? Despite all the best intentions of the organisers to discuss the increasing threats to freedom of expression, Chief Minister Ashok Chavan re-scheduled his visit, merely to avoid sharing the dais with film star Amitabh Bachchan at the concluding function the following day, an absurd enough excuse that attracted its fair share of sarcasm, including Marathi television channel host Rajiv Khandekar, who said that the chief minister should have exercised his freedom vis-v-vis his own political party! The sammelan was also an opportunity for the Nationalist Congress Party (NCP), the alliance partner of the Congress-I, to settle scores. Only a week before, the Congress-I chief minister had shared the dais with the film star and was criticised as Amitabh Bachchan was the brand ambassador of the state of Gujarat, appointed by a leader tainted by the Gujarat riots of 2002. Bachchan resurfaced at the Marathi Literary conference at the behest of the NCP, ostensibly to embarrass the Congress-I further. ack to the session on freedom of expression. The retired High Court judge, Narendra Chaplgaonkar, tried in vain to salvage the session by calling for more tolerance but when the session itself was amalgamated with a symposium on Marathi language, the battle to discuss freedom of speech and expression, leave alone defend it, was all but lost. hould one be surprised at this turn of events? Not really, for these sammelans, huge affairs that they are, have actually been systematically taken over by politicians bent on projecting their own image in return for donations and hospitality. The latter become a staple for discussion, not any serious social, political or literary issues.
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There is today, a general apathy of the literary establishment to issues of freedom of expression and communalism. But it wasn't always so. In the wake of the Babri Masjid demolition, reputed poet and Gyanpith awardee Vinda Karandikar was the only one to raise his voice strongly against communalism at the Marathi Sahitya Sammelan in Satara. Karandikar was to inaugurate the Pune sammelan this year but died a few days earlier. The rot in the literary establishment runs deep. The organisers of the sammelan were wont to accept the sponsorship of Manikchand Gutkha, a tobacco product widely known to be injurious to health but this was given up only because of public criticism initiated, not by Marathi writers, but by Dr Abhay Bang, the doctor working among adivasis in Gadchiroli district. Of course, there is still a lot of good literature being written in Marathi. And some writers refuse to submit themselves to fight an election to get elected to these sammelans. Vijay Tendulkar, for instance, never became a president. Tendulkar was a leading voice in the cause of freedom of expression and the fact that the literary and political establishment always opposed him shows how much they care for freedom. In fact, the Maharashtra government went out of its way to ban his play Sakharam Binder'. In the past, writers have shown guts and dignity in dealing with political interference in literature. Way back in 1981 writers held a protest sammelan what came to be known as the Samantar Sammelan to oppose the government sponsored annual conference. I remember it was presided over by Maltibai Bedekar, a renowned feminist writer. She delivered an excellent speech and got it absolutely right when she spoke about the political domination of the sammelans. Writers should be made of sterner stuff. Almost 200 years ago, rebel poet Percy B Shelley wrote a pamphlet pleading for atheism and challenging the status quo. He also declared, in Defence of Poetry, that poets are the unacknowledged legislators of the world. It is time our writers hold their heads high, assert their freedom of expression and speak up for the people. The least they can do is stop being servile.
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Censoring films to protect' the audience The paternalistic logic that vulnerable audiences need to be protected from images of violence, nudity, obscenity, etc., is completely irrational, says SIDDHARTH NARRAIN, discussing proposed changes in the Cinematograph Act, 1952
July 06, 2010
The proposed changes to the Cinematograph Act, 1952, reinforce existing government policy where the medium of film continues to be seen through a prism of suspicion rather than as an enabling medium for the promotion of speech, belying the claims of the Union Ministry for Information and Broadcasting that the proposed changes will bring the legislation in tune with the times. Contemporary studies in the area of media, visual and spectatorship studies have discredited earlier Direct Impact theories and have shown that there is a far more complex interaction between the spectator and the image than was earlier believed. The studies contest the claim that there is a direct correlation between audiences and their behaviour, the logic that is at the root of the manner in which legislations like this draft Bill are framed. A cursory reading of the proposals indicates that there is next to nothing in the draft law to substantiate this claim. In fact, what the proposed law does is to reinforce outdated perceptions of the threats posed by the medium of film, to continue to use the constitutional exceptions to free speech as the basis of framing law. In India, the right to free speech has been circumscribed by limitations based on public morality, public order, national security, and forms of expression that would lead to contempt of court, defamation or incitement to an offence, or would affect friendly relations with other states. Cinema is one of two forms of media that faces pre-censorship in India (the other being theatre). The Supreme Court in the 1970 K.A Abbas case turned down a challenge to the system of precensorship of cinema. The court stated that pre-censorship was necessary as the medium of film had to be treated differently from
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other forms of art and expression. The art of the cameraman with trick photography, vista vision and three dimensional representation thrown in has made the cinema picture more true to life than event the theatre or indeed any other form of representative art. The appellate Indian courts have a positive record on free speech rights, and recent judicial decisions like the Delhi High Courts M F Husain and Naz Foundation cases have shown that judges are beginning to recognize that Indian society has changed remarkable over the last six decades. However, the Indian bureaucracy and policy makers have not kept pace with this. With technology becoming ubiquitous, our avenues of experience have also increased concomitantly, and as such, putting such restrictions on one medium, that is films, is unfair to filmmakers, artistes and audiences as professionals and as citizens. The paternalistic logic that vulnerable audiences need to be protected from images of violence, nudity, obscenity, etc., is completely irrational when audiences are encountering such images on a routine basis on television, video, the Internet, and a host of other new technologies that are commonly used in India today. The proposed Bill makes no distinction between public and private exhibitions and does not attempt to define what constitutes a public or a private exhibition. Instead, the proposed Bill has put in place a too broad definition of exhibition which will impossible to enforce given the ubiquitous nature of the visual medium today and the manner in which such technologies have become personalized. The definition of exhibition includes educational institutions, independent cultural centres, exhibitions meant for scientific purposes, etc. Further, this definition of exhibition goes against the Supreme Courts interpretation of the term, which is much more restrictive. The Ministry should distinguish between public and private exhibition and define these terms in consultation with stakeholders, especially filmmakers. The proposed Bill does not differentiate at all between fictional and non-fictional films such as documentaries. Documentaries highlight issues, some of which will be necessarily controversial but which
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cannot be ignored. A debate on such issues is necessary, and giving the CBFC the right to regulate such non-fictional films means a direct restriction on political debate. Another major concern is regarding the criminalization of the act of unauthorized copying of a negative or of a film. It must be pointed out that the act of unauthorized copying has been criminalized by the Copyright Act and is subject to the exceptions provided therein as well as the principles governing copyright law. Incorporation of unauthorized copying as an offence under the proposed Cinematograph Act would hopelessly confuse the law regarding copyright in India by introducing a duplicate penalty for violation of copyright. Unless the Ministry makes the process of drafting this Bill consultative and brings in the voices of a range of civil society actors including film makers, we will continue to be governed by a1950s legislation in 2010. (Siddharth Narrain is with the Alternative Law Forum, Bangalore)
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Book bans: tale of three books Judicial pronouncements in three recent cases on book bans and curbs on books for allegedly causing enmity or communal disharmony have upheld freedom of expression in different ways, making for an interesting study in contrasts, says GEETA SESHU
August 01, 2010
Coincidentally or otherwise, the judicial decisions delivered this year on three books by different authors that were banned or sought to be banned for causing enmity and disharmony between communities were located in Maharashtra and the response to all three is an interesting study in contrasts. In the case of James Laine's "Shivaji - The Hindu King in Muslim India", the Bombay High Court as well as the Supreme Court of India struck down notifications banning them and the Bombay High Court struck down a criminal complaint against first-time writer Murzban Shroff's book of short stories Breathless in Bombay. In the third instance, the Bombay High Court upheld a ban on Supreme Court lawyer R V Bhasin's Islam??" A concept of Political World Invasion. Controversy dogged the publication of "Shivaji - The Hindu King in Muslim India", written by Laine, a professor of religious studies, in 2003, by the Oxford University Press in New York and New Delhi. In an atrocious act of vandalism, 150 cadre of the Sambhaji Brigade, a political outfit alleged to be close to the Nationalist Congress Party (NCP), ransacked the office of Bhandarkar Oriental Research Institute (BORI) in Pune and destroyed books and priceless historical documents on January 5, 2004. Barely ten days later, the state government issued the ban on January 15, 2004 under section 95 of the Criminal Procedure Code, 1973. The section empowers the State government to forfeit the publication of any newspaper, book or document that run afoul of penal provisions under Sec 124A, Sec 153 A, Sec 153 B, Sec 292, Sec 293 or Sec 295 A of the Indian Penal Code(respectively dealing with sedition; promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc;
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Imputations, assertions prejudicial to national-integration, obscenity and injuring with a view to insult a place of worship). On April 26, 2007, Justices F.I. Rebello, V K Tahilramani and A S Oka of the Bombay High Court quashed the notification, both on the ground that the publication does not disclose any offence under Section 153A of the Code of Criminal Procedure and also as there was no material to show that the publication has resulted in disturbance of public tranquility or maintenance of harmony between various groups as set out therein.' (Click here to read judgment) An appeal against this order was filed by the state government before the Supreme Court but the High Court's judgment was upheld by a bench comprising Justices D K Jain and H L Dattu on July 8, 2010. The judgment stated that: It is manifest that the notification does not identify the communities between which the book had caused or is likely to cause enmity. Therefore, it cannot be found out from the notification as to which communities got outraged by the publication of the book or it had caused hatred and animosity between particular communities or groups. We feel that the statement in the notification to the effect that the book is "likely to result in breach of peace and public tranquility and in particular between those who revere Shri Chhatrapati Shivaji Maharaj and those who may not" is too vague a ground to satisfy the afore-enumerated tests. Moreover, the High Court has also noted that the learned Associate Advocate General was unable to produce or disclose any material or information to find out as to which were the groups based on religion, race, language or religion or caste or communities who do not revere Shri Chatrapati Shivaji Maharaj. If that be so, no fault can be found with the finding of the High Court to the effect that there is nothing on record on the basis whereof the Government could form the opinion that the book was likely to promote disharmony or feeling of enmity between various groups or likely to cause disturbance to public tranquility and maintenance of harmony between various groups.
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For around a fortnight thereafter, political parties and political groups in Maharashtra condemned the Supreme Court's judgment. While political parties like the Shiv Sena and the BJP pilloried the Cong-I and NCP run state government for their failure' to put forth a legal fight, other political groups held demonstrations against the judgment and maintained that the book insulted Maratha sentiments was a conspiracy by Brahmins to malign the Maratha ruler, Shivaji. The state government secured an assurance from the book's publishers that the book would not be sold in the state and the storm over the judgment has, presently, died down. Adv P A Sebastian, who argued the case before the Bombay High Court, says that hardly anyone who opposed the book by James Laine and demanded a ban on it, had read the book. Those who have, maintain that, in fact, the book lauds Shivaji as a hero. But actually, when the book was banned, nobody bothered to protest it, he rued. There is a general fear or indifference about such issues and the Sambhaji Brigade's protest gave people the feeling that popular reaction was in favour of a ban. Adv Sebastian, who is a well-known civil liberties lawyer and head of the Committee for the Protection of Democratic Rights (CPDR), is no stranger to struggles for freedom of expression. For several years, he fought cases for Patwardhan to demand that the public service broadcaster, Doordarshan, telecast the latter's awardwinning films. He strongly felt a petition should be filed challenging the ban. He asked several people if they were they were willing to file a petition, but they were reluctant. Finally, he approached documentary filmmaker Anand Patwardhan. Two other petitioners joined in - Advocate Sanghraj Rupawate and social activist Kunda Pramila, incidentally a Dalit and a Maratha, respectively. As Patwardhan said, All of us represent different castes but that's because we are for freedom of expression. We decided to make our petition as widely representative as possible for precisely this reason.
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Concurs Kunda Pramila, It is undemocratic to ban or censor any content. Let readers decide the merits or de-merits of any argument. I am totally against any such ban. The contents of the book and the allegations of those in favour of a ban that the book was a Brahmin conspiracy' to cast aspersions on Shivaji's parentage simply did not figure in the arguments before the High Court, said Adv Sebastian, adding that Sec 95 is a very drastic' one, giving the state government the power to forfeit any publication that the government may suspect' can cause enmity between two groups. Read along with Sec 96 (1) of the Code of Criminal Procedure, 1973, which states that any person having any interest in the publication or document may apply to set aside the declaration of forfeiture, Adv Sebastian argued that the petitioners' freedom to gather knowledge and information was denied to them. He also argued that, when the state government contended that the publication of the book would cause enmity between two groups, it must be specific about the identity of these groups'. Can anyone come forward and state that they do not revere Shivaji? Is there any community' that the state government can state will do so? On this basis alone, the notification was found to be invalid. Today, the Maharashtra Government has ensured that there are no sales of the book in the state and they can issue another notification banning it, but they will still have to mention the community that does not respect Shivaji, he said, adding that there was no question of either the Bombay High Court or the Supreme Court going into the content of the book. Ban justified if it is a mala fide exercise to stir communal passions' Not so with the book written by R V Bhasin. On January 6, 2010, the Bombay High Court upheld a ban on a book by Supreme Court lawyer R V Bhasin entitled Islam: A concept of Political World Invasion. The book, published in 2003, was banned on March 9, 2007, after a Maharashtra government notification. Bhasin challenged the notification before the High Court and a full bench comprising Justice Ranjana Desai, Justice Dr D Y Chandrachud and Justice R S Mohite, maintained that, while every person has a
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right to criticise, criticism must be healthy and not malicious. However, if a book reeks of hatred for a particular community, if it contains rabid material and there appears to be no sincere handling of the subject but a mala fide exercise to stir communal passions, one must pause and consider whether it is in the interest of general public to allow its circulation. In such a situation, the restriction imposed on the freedom of speech and expression by the Constitution must spring into action, the court observed. In the case of Bhasin's book, the court said: the test is whether the book read as a whole attracts the relevant penal provisions of the IPC. Throughout the book scurrilous and malicious statements have been made by the applicant to outrage the religious feelings of the Muslim community; (viii) The two classes in the Notification are identified as Muslims and Non-Muslims and hence Section 153-A of the IPC is attracted. The applicant calls upon Hindus to protect themselves against the alleged ordainment of Islam upon all Muslims to kill or convert Non-Muslims. Hence, the book clearly attracts Section 153-B(1)(b) and (c) of the IPC' Upholding the ban, the judges said, that while the author was free to criticize' Islam, the criticism here was not academic and the author passed insulting comments on Muslims with particular reference to Indian Muslims. That is most objectionable. The judgment adds that the latter are painted as villains and talks of the inevitability of a war between Muslims and non-Muslims and asks: With such exhortations, can we say that the book will not promote enmity between two religions or that it is not intended to outrage the religious feelings of Muslims or that it is not likely to create dis-harmony or feelings of enmity, hatred or ill-will between Hindus and Muslims? Citing the judgment on the Gopal Godse case, the judges felt that while the book was in circulation for a long time, it was not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred.
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No enmity or disharmony here When Murzban Shroff published a book of short stories Breathless in Bombay', little did he imagine that it would be taken as a book promoting enmity and disharmony between Maharashtrians and North Indians! It all started when a private complaint filed by a social activist Vijay Mudras, before the Metropolitan Magistrate's Court at Dadar in central Mumbai, alleged that Shroff had committed an offence under section 153-B of the Indian Penal Code as, in the short story titled The House of Mine', he had made scandalous and derogatory remarks on Maharashtrians by referring to them by the derogatory and offensive' word Ghati. According to the complainant, the statements in the book were sufficient to cause disturbance and damage communal harmony. According to the complainant, the term Ghati, when used by people from North India, has come to acquire a derogatory connotation. It was further alleged that the book titled Breathless in Bombay had a tendency of fomenting and promoting disharmony, feelings of enmity, hatred and ill-will on the grounds of place of work, residence and language. Shroff was shocked when the magistrate upheld the private complaint and an FIR was lodged before local police on April 1, 2009. He wrote to the police, clarifying his position. The slang ghati', was uttered by one character in a moment of drunkenness and he was even admonished for this by another character in the story. There was no intention to cause any sort of disharmony, Shroff said. Satisfied by his explanation, the criminal complaint was disposed off by the magistrate on January 20, 2010. But Mudras filed a protest petition ten days later before the Magistrate and the latter directed the Social Service Branch of the Mumbai police to further investigate the matter. In response, Shroff filed a petition before the Bombay High Court to quash the criminal complaint. Justice V M Kanade, who heard the matter, contended that even if these paragraphs are read in isolation and out of context, then also they would not come within the purview of section 153-B'. Justice Kanade upheld the author's fundamental right to freedom of speech and expression and cited from the judgment by Vivian Bose in Bhagwati Charan Shukla
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v.Provincial Govt. (the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view....) and Justice Hidayatullah in the K A Abbas vs Union of India about the power of pre-censorship. In the final analysis, as the indefatigable Adv Sebastian said, any book must be read in its entirety. Banning a book is not an answer, he said, adding, "Sometimes, all it takes is for a few people to stand up and register dissent".
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When Bigotry rules: Religiosity and censorship in Goa The attack on the paintings of Dr Jose Pereira by the Hindu Janjagrut Sanghatana was appalling, but what of the response of the State, intellectuals and the media? FREDERICK NORONHA questions the silence and complicity of these agencies.
August 15, 2010
For some years now, the supposedly secular state of Goa, with its heterogeneous religious mix, has been beleaguered by attempts by the religious right to censor both views and art and cinema. These attempts have been causing some concern, more so due to the knee-jerk response of the state and the silence of intellectuals and the media. In July this year, the Goa-based Hindu Janajagruti Samiti (HJS) and its affiliate, the Sanatan Sanstha (SS), took umbrage at a painting exhibition by Dr Jos Pereira, a 79-year-old US-based Goan Sanskrit scholar and artist which it said, "hurt its sentiments". Pereira, born in 1931, is Professor Emeritus of Theology of Fordham University, New York, where he lectured on History of Religions. He has taught and done research in various academic institutions in Lisbon, London and Varanasi, and has published 24 books and 145 articles on theology, history of art and architecture, and on Goan and Konkani culture, language, literature and music. Pereira's exhibition, titled the 'Epiphanies of the Hindu Gods' had been exhibited at the India International Centre in Delhi a few weeks earlier. Art critics called it an "endeavour to interpret some classical themes of Hindu art in a realistic idiom, an idiom that frees the drama in the themes from the constriction of iconographic formulas." But the HJS -- running campaigns with screaming banner headlines on Page 1 in its 'Sanatan Prabat' newspaper, first demanded the removal of three paintings that it deemed offensive. It subsequently sought the removal of five more, on the basis that it "hurt their sentiments", and finally demanded that the entire
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exhibition be shut down. See headlines here: Sanatan saw the work by a "Christian artist ... (involving) nude and derogatory pictures of Hindu deities... which hurt the religious sentiments of Hindus and are being condemned by the Hindu community." It called on the host institute to withdraw the exhibition, and said it "filed a complaint with the Porvorim Police Station and a copy of the same has been forwarded to the CM, Home Minister, DGP and the SP (North Goa)" besides against the artist personally. In its newspaper, it claimed it had sought the support from the Opposition in the Goa assembly too. The police claimed the Xavier Centre of Historical Research, the centre at Alto Porvorim exhibiting the work, decided to withdraw it to avoid a "communal" controversy. The XCHR itself said that the police advice was to "temporarily withdraw" the paintings that the Sanatan demanded! The police were also prompt in filing a complaint against the artist, a scholar known for long years for his work on Goa and the rest of India. Growing intolerance and religious right When the HJS and SS said that Pereira's paintings hurt the group's sentiments, it may have seemed like a campaign of a fringe group. This could have been dismissed as not being representative of wider public opinion. However, the agenda-setting impact of such actions is significant. Unfortunately, the mainstream media is all too eager to take such fringe campaigns seriously. Nothing is more attractive than conflict in the news-defining process. Regardless of the logic, or lack of it, an issue of this kind is just what it takes to make it to the headlines. Groups like the Sanatan and the Hindu Janajagruti Samiti have properly understood the -- warped, if you wish -- logic of the media. Nudity, nakedness, even the hint of sex... these are issues which can easily been used to stoke up people's emotions.
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In Congress-I ruled Goa, Chief Minister Digambar Kamat's team is quick to take cognizance of complaints of religious sentiments being "hurt" or "offended" by art or movies. In a supposedly-secular State, with the attempts by the Religious Right -- of all kinds -- to censor views and art is causing quite some concern here. In 2008, the Goa government earned some dubious credit by blocking the screening of the fictional film 'The Da Vinci Code' in this State. Politician Churchill Alemao, a contentious leader known to play on people's sentiments, had warned to "forcibly" stop screenings of it. In January 2009, the Shiv Sena, which has long attempted to build its based in Goa, attacked a Panjim multiplex cinema for screening the award-winning "Slumdog Millionaire." The film which got 10 Oscar nominations was seen as having "hurt Hindu sentiments". Police arrested 12 activists, booked for tearing down posters and breaking the glass facade. The Hindu Janajagruti Samiti also demanded a ban on the film, saying its portrayal of Lord Ram in the movie was objectionable. The HJS, once a grouping that promoted religiosity, now allegedly stoking some forms of communalism. Some 11 of its members have been named in a National Investigation Agency (NIA) charge-sheet over a blasts case in October 2009, which killed two. The two were also Sanatan members, and were allegedly engineering a blast during a Hindu 'narkasur' festivities celebration. If the blasts were successful during the celebrations, it could have even lead to major Hindu-Muslim violence here. Earlier, the HJS and its Sanatan affiliate also played a key role in the campaign against the art of nonagenarian M. F. Hussein. Elsewhere in the State, the use of a cartoon by the 'Times of India', depicting current-day Indian politics in a "Last Supper" setting, drew some ire from a section of Catholic public opinion. The Times of India quickly apologised! This interpretation of a Last Supper scenario was the target of some protests. If the protests didn't grow, it's only because the groups
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behind them didn't have access to their own mouthpieces, as groups like the Sanatan do, ready to rake up instant controversies, telephone campaigns -- leading to all kinds of threats -- and what not. (The HJS-Sanatan combine has the strategy of widely publishing the phone numbers and email IDs of any "offending artist" and getting its supporters to phone in. In the Pereira case, even deaththreats were allegedly received.) Offence and freedom of expression In a religiosity-prone culture like India, one needs to be cautious about the stands taken. But, having said that, who empowers (mostly ultra-conservative, if not outright chauvinistic) selfappointed groups and individuals to decide what "offends sensibilities"? There are many appalling aspects of episodes like this. The media role definitely needs to be questioned. An intellectual of the calibre of Dr Jose Pereira can hope to reach the front-page in his home State -- a region he has done so much work on, despite being away from here for decades -- only after his art is "noticed" by the Sanatan. Is this the fate of our intellectuals that they have to await to be noticed by the fringe, before society starts noticing their contribution, and the media front-pages them? But it doesn't stop there. Such protests are of questionable value in today's India. As Tehelka has shown, even a group like Muthalik's Rama Sene in coastal Karnataka, is allegedly not above negotiating to stage a protest, to make an artist's work "famous" in this manner! Some persons -- cutting across the religious divides that extremists would like to perpetuate -- were blunt in their critique of such intolerance towards art. But others were not so forthcoming. "An artist has various [forms of] expression, and these members of the HJS are fighting without even understanding these expressions.
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They don't even represent Hindus as such; they're extremists," commented film-maker Dyanesh Moghe. More interesting is the response of the State and the entire drama showed how various arms of government act under a supposedly "secular" State. The political class -- leave aside the mainstream "Opposition" -largely maintained a ominous silence. There were no assurances against bullying of this sort. Sources of the threatening calls were not tracked or penalised. At the end of the day, the Sanatan and HJS did itself a huge disfavour by choosing someone like Dr Jose Pereira as their target. Here is a man, who while Catholic, has a deep respect for his Indian Hindu roots. As he put it in an recent interview with Gerard D'Souza in Gomantak Times, "I see myself as a product of two traditions: one is the Latin-Christian tradition and the other is the Indian Hindu tradition." But the headlines and the temporary sensation apart, such issues also throw up wider issues. What is the role of the State in coping with such threats and pressures? How do the media respond to a logic which places religious strife and censorship at the centre of everything? But if the goal is to polarise people on grounds of religion, then any excuse is good enough. (Ironically, Dr Pereira answers the critics of Hussein, who say that "only" Hindu gods are shown in the nude. He has not shown Jesus Christ un-clad, but done a self-portrait of himself too. Any why this obsession with Victorian prudery, anyway? Does one have to think of sexuality or offensiveness when one sees an un-clad body?) Dealing with such fringe responses, is unfortunately more like looking into a mirror. It tells us about how ugly our own society is, how the many responses betray true feelings. At the end of the day, we just get the bigots we deserve. (Frederick Noronha is a Goa-based journalist)
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Withdrawal of acclaimed book from Mumbai University curriculum: A cowardly move A groundswell of opinion is building up against the move by the Mumbai Universitys Vice Chancellor to withdraw Rohinton Minstrys book Such a long journey from the curriculum for undergraduates. A Free Speech Hub report
October 10, 2010
The craven manner in which Mumbai University Vice-Chancellor Rajan Welukar succumbed to the protests by the Shiv Sena's youth wing Bharatiya Vidyarthi Sena and hurriedly withdrew an acclaimed book from the syllabus of the second year Bachelor of Arts course for English Literature, has shocked and angered many. Initially, it seemed as if a deafening and depressing silence from the academic community greeted the withdrawal of Rohinton Mistry's book, Such a Long Journey'. The protests seemed confined to facebookers, bloggers and members of listservs. But the statement posted on the notice-board of the website of the St Xavier's College last week is heartening: St. Xavier's College is proud to consider Rohington Mistry as a distinguished alumnus. The Management, Staff and Students of the College read with consternation the news item on Saturday 2nd Oct, 2010, of the emergency withdrawal of his book, SUCH A LONG JOURNEY, by the University of Mumbai, in mid-term. The book in question has not evoked any controversy in civil society and is considered an example of excellent literature, recounting life as lived by the common men and women of our time. It does reflect critically on political parties of all hues and in particular, deplores the threats of violence unleashed in the 1970s by a particular political party in Maharashtra. It is inconceivable that in the 21st century, a political party will not show the maturity to accept criticism and answer it by the evidence of its own actions. Is it not unreasonable, that literature is banned,
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merely because it dares to critique us? St. Xavier's College regrets that this book, written by an alumnus, and widely acclaimed in the literary world, has been treated in this manner. Dr. Frazer Mascarenhas S.J. Principal (Ironically, the move to withdraw the book comes from Shiv Sena youth leader Aditya Thackeray, grandson of Bal Thackeray, and a student of the same college! But that's a minor detail, and the contradictions between the pursuit of knowledge that one hopes is the desire of every student and the political compulsions of a scion of the Thackeray family may make for another novel!) Amongst the first protests against the Vice-Chancellor's move was a post on Facebook by a former student of the university, Shobha SV. Addressing an Open letter to Rajan Welukar', Shobha asked: So why do you really want to ban a book? How does it help to ban a book? Why didn't the students get any chance to give their opinion? Do you think they are not capable of having an opinion or do they really not matter at all in the given scheme of things? Am I asking for too much? Did you even ask the teachers what they thought of the book? I am asking this because you seem to have effected this ban by bypassing the academic council. You only chose to hear one puny section of the student (?!) group and decided to act. It is appalling that a vice chancellor of a university which is 150 years old chooses to act in such a cowardly fashion. It is not just cowardly, it is also chauvinistic. By not taking into account the opinion of any other the groups associated with education per se, you have exhibited totalitarian attitude. There were several comments in response to her post, especially her remarks on the sad talibanisation of our society, a society that is marred by fear and apathy'. Clearly, others echo this fear.
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Journalist Mahesh Vijapurkar, writing in his blog Vox Persona, is worried that the withdrawal of the book from the curriculum of Mumbai University may be the first step towards Aditya Thackeray's demand to ban it from bookstores too! I would not be surprised if that is the first agenda of the proposed Yuva Sena. But I do hope it would not be for in India, the list of books either restricted because of mob fury or proscribed because of the government's lack of intellectual strength, is only growing. If books get banned, then what happens to the researchers of the future? Where would they look for them for references? The blog also discussed a resolution unsuccessfully moved in the last annual general meeting of the Asiatic Society of Bombay to stock banned books. The resolution was proposed by K Haridas, a senior member of the Society, who said, "Those in power ban books right,left and centre and,that too,on extraneous grounds. Owing to that,researchers and scholars are often deprived of rich study material. So,these prohibited books should be stocked in library but the Society should frame stringent rules to avoid their wrongful use". The resolution was seconded by another member and scholar, M V Kumar. Unfortunately, the resolution did not get much support as the Managing Committee of the Society, was worried about the legal implications as well as the threat of vandalism that the stocking of banned books may attract. Interestingly, one of the first comments against the withdrawal of Rohinton Mistry's book came from the Asiatic Society's current President, Dr Aroon Tikekar. A scholar, researcher and former editor of Loksatta, Dr Tikekar had authored a wonderful history of Bombay University, Beneath the Cloister's Pale'. In an article in the Mumbai Mirror Timidity has no room in Academics', he wrote: What an unwise move it is of the newly appointed Vice-Chancellor Dr Rajan Welukar, to withdraw Rohinton Mistry's book, Such a Long Journey, from the syllabus of the second year B A course. Just because Aditya Thackeray, still an undergraduate, but too eager to launch himself politically, demanded an immediate
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withdrawal on the ground that it has allegedly some anti - Shiv Sena sentences. It is all the more shocking that the Vice-Chancellor, in his timidity, did not feel the necessity of even going back to the Academic Council of the University or find out the antecedents of the book. He goes on to state that : Any other good educational administrator would have at least bought time and told the agitated youth that the final decision can be taken only in the meeting of the Academic Council of the University of Mumbai and that he would convey their feelings to the members of the Council. By succumbing to the pressure tactics of the members of the Bharatiya Vidyarthi Sena, the Vice-Chancellor has embarrassed the state government and let down the entire academic community badly. One surely expected better mental solidarity from him. Timidity has no room in academics. The Maharashtra government has now decided to examine the ViceChancellor's decision. It remains to be seen if it has more gumption.
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Legal Analysis
Contempt powers and free speech The present definition of criminal contempt is arbitrary and can lead to unreasonable restrictions on freedom of speech. A critical appraisal by RAKESH SHUKLA.
April 07, 2010
The power of superior courts to punish for contempt involves two invaluable rights. As the court can and does sentence persons to imprisonment, the fundamental right to life and liberty enshrined under Article 21 of the Constitution gets directly affected. Similarly, the fundamental right to speech and expression integral to democracy and encoded in Article 19(1) (a) comes into play as far as public speeches and publications are concerned. The present definition of criminal contempt uses phrases like scandalizing the court, lowering the authority of courts and prejudicing the course of justice. These expressions are inherently vague and leave a lot of scope for arbitrariness dependent on the individual opinions and predilections of the judge and can lead to unreasonable restrictions on freedom of speech. In fact, the Philimore Committee in U.K. recommended that the branch of law dealing with scandalising the court should be replaced by a new and strictly defined criminal offence. We need to make distinctions between an intention to interfere with the course of justice as opposed to intending to do the act in question. Similarly, contempt law should take on board an intention merely to insult the judge but not to interfere with the course of justice. The offence of criminal contempt should be so constituted to include the component of intention to impair confidence in the administration of justice. Adverting to another important aspect of the law, despite the motto of Satyamev Jayate or "Truth Will Triumph", truthfulness or factual correctness was not considered a defense to a charge of criminal contempt in Indian courts till the amendment in 2006 to
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the Contempt of Courts Act, 1971. After the amendment the court may permit justification by truth as a valid defense in contempt proceedings if it is satisfied that it is in public interest and the request for invoking the said defense is bonafide. The present position is definitely an improvement, however, besides the difficulties of establishing a fact as true in a court of law, particularly pertaining to behind the scene transactions which necessarily are cloaked in secrecy, the provision still leaves room for arbitrariness in the matter of determining whether the defense of truth to a contempt charge is bonafide and in public interest. The emerging complex issues involving free speech, restriction on liberty, truth as defence, inclusion of intention to interfere with the course of justice, need to be debated. Instead, criminal contempt jurisprudence seems to be currently frozen in the rather oversimplistic construct of an all-powerful indignant judiciary and a cowering executive, press and populace in our country. Contrary to popular impression the power of courts to punish for contempt is not for the protection of the individual judicial officers from insult or injury. In the words of Lord Morris in 1973 in contempt proceedings against The Times, "The power summarily to commit for contempt is considered necessary for the proper administration of justice. It is not to be used for the vindication of a judge as a person. He must resort to action for libel or criminal defamation. Nearer home, Chief Justice Gajendragadkar, while heading a sevenjudge bench of the apex court, cautioned against frequent or indiscriminate use of the power of contempt in anger and irritation and observed, Wise Judges never forget that that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct." For Justice Krishna Iyer, the essential right of the ordinary citizen to get justice was the basis of the power to punish for contempt. He felt that this power should be exercised to render justice to the people. In 1978, Justice Iyer had dropped contempt proceedings in
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the Mulgaonkar case arising out of the publication of an article in the Indian Express in December 1977 criticizing the role of the Supreme Court during the Emergency. Justice Iyer laid down that, the third principle is to avoid confusion between personal protection of a libeled Judge and prevention of obstruction of public justice and the community's confidence in the great process. Recent instances of the exercise of the contempt powers by the courts need to be placed in the framework sketched out by Judges Morris, Gajendragadkar and Krishna Iyer: In April 2001 Wah India, an English periodical brought out an article titled "Judged Out" with marks being given under different heads to judges of the Delhi High Court. The article claimed to be a humble attempt to hold a mirror to the judiciary to bring about meaningful changes in its functioning. An outraged Court hauled up the editor, correspondent and publisher. Even after rendering an unconditional apology, they had to wait on tenterhooks for weeks before they managed to escape imprisonment. The apex court had set a deadline for switching to Compressed Natural Gas (CNG) for all commercial vehicles in the capital including buses. Inadequate number of CNG buses lead to riots and protests including burning of vehicles. The Chief Minister made a statement pertaining to ground realities which the Court may not be aware of and was promptly hauled up for contempt. The secretary of Peoples' Union for Civil Liberties (PUCL), the publisher, Managing Editor, correspondent and sub-editor of Hitvada, an English daily from Nagpur were sentenced to six months imprisonment by the Madhya Pradesh High Court. The paper reported the PUCL secretary's critical comments on the acquittal by the High Court of the industrialists convicted by the trial court in the assassination of the radical trade union leader Shankar Guha Neogi. In appeal, the Supreme Court in 2005 upheld the conviction of the PUCL secretary and sentenced him to one weeks imprisonment. Social norms with regard to acceptable restrictions on liberty and the value of free speech in a democracy change over time. In 1972, E M S Namboodiripad, then Chief Minister of Kerala, was hauled up
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for contempt for stating that judges are prey to the biases of their class and are weighted against the exploited peasants and working classes. The defence that the comments constituted fair and reasonable criticism of the judicial system and were protected by the right to free speech was rejected. In 1987, the Law Minister, P Shiv Shankar, referred to the elite background of the judges in a speech at the Bar Council of Hyderabad and declared, Mahadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic chord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper case. Anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court. The Apex Court took the view that Shiv Shankar had examined the class composition of the Supreme Court. His view that the class composition of any instrument indicates its predisposition, its prejudices did not amount to contempt. Referring to the EMS case, the Court observed that times and climes have changed in the last two decades. However, the view taken by the Apex Court in the Arundhati Roy case in 2002 is in stark contrast to the liberal perspective reflected in the Shiv Shankar case. After the judgment in the Narmada Bachao Andolan case in 2000, there was a dharna protesting the majority judgment outside the Supreme Court. This led to a petition filed against Advocate Prashant Bhushan, Medha Patkar and Arundhati Roy for contempt of court. The petition was eventually dismissed by the Court. However, the Court initiated suo moto contempt proceedings against Roy for the affidavit filed in the case. The Supreme Court distinguished the earlier case on the specious reasoning that the criticism of the judicial system was made by Mr P Shiv Shankar, a person who himself had been a Judge of the High Court, was a Minister and had made studies about the system and expressed his opinion, while Arundhati Roy could not claim to possess any special knowledge of law and the working of the judiciary and only claimed to be a writer of repute. The judgment
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convicted Roy of contempt of court, imposing a sentence of one days imprisonment and a fine of Rs. 2,000. The objectionable paragraphs are ironical in the context of the exoneration of Shiv Shankar and the shift in attitude of the Supreme Court and are worthy of perusal: On the grounds that Judges of the Supreme Court were too busy, the Chief Justice of India refused to allow a sitting Judge to head the judicial enquiry into the Tehelka scandal, even though it involves matters of national security and corruption in the highest places. Yet, when it comes to an absurd and entirely unsubstantiated petition in which all three happen to be people who have publicly -though in markedly different ways -- questioned the policies of the Government and severely criticized a recent judgment of the Supreme Court, the Court displays a disturbing willingness to issue notice. It indicates a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm. (Rakesh Shukla is an advocate with the Supreme Court of India. He is based in New Delhi).
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A cheeky video game by Greenpeace but corporate giant Tata is not amused The defamation suit against the environmental group is the latest in a string of SLAPP litigation by corporates against activists, and the effect is chilling, says KAMAYANI BALI MAHABAL.
August 05, 2010
The SLAPP (Strategic Litigation Against Public Participation) suit by the House of Tatas against the international environmental NGO, Greenpeace, is just the latest in a string of such litigation against activists who dare to question corporate giants and campaign against them. The TATA filed a defamation suit against Greenpeace, in the Delhi High Court in July 2010 for promoting an online video game called Turtle vs Tata. The suit demands damages of Rs10 crore from Greenpeace for defamation and wrongful use of the Tata trademark in their game. Greenpeace has been campaigning for several years to get the TATAs to drop their controversial port at Dhamra, Orissa because they fear it will destroy the habitat of the Olive Ridley turtles. So what is SLAPP? The use of a lawsuit known as SLAPP (Strategic Litigation Against Public Participation) is a tool increasingly being used by individuals and industry to threaten the community's rights and their ability to participate in public debate and political protest. For Greenpeace, this is not the first time the Tatas used SLAPP as a ploy to silence it. In 2008, an annual general meeting (AGM) of the Tatas was preceded by a SLAPP suit the corporate house filed against Greenpeace seeking prohibitory orders on any protest or activity by the environmental group. However, in an order passed by Justice V.M. Kanade, of the Bombay High Court, the environmental group's democratic right to peaceful and non-violent protest was upheld. The acronym SLAPP was coined in the 1980s by University of Denver professors Penelope Canan and George W Pring. The term
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was originally defined as a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against non government individuals or organizations on a substantive issue of some public interest or social significance. While individuals and NGOs cannot be directly sued for exercising their democratic right to participate in the political process, their opponents attempt to find technical legal grounds on which to limit public debate and comment. Such grounds usually include defamation, conspiracy, nuisance, invasion of privacy or interference with business/economic expectancy. The common feature of SLAPPs is that they are a response to some form of public participation in policy or management and aim to have a chilling effect on that participation and on the related political and social debate. SLAPPs are simply used to intimidate people, to literally scare them into silence on issues of public interest. In Canada and the US, as SLAPP became a favoured strategy of corporates, laws have been enacted to protect defendants in SLAPP cases. Corporates in India have begun making attempts to use this ploy to silence protestors and whistle blowers. SLAPPs require significant resources to combat, particularly when the discovery process is used as an abusive tool to harass and exhaust the resources of a defendant, who are usually activists with meagre resources. Unfortunately, Indian authorities are yet to take appropriate action to prevent the misuse of SLAPP cases. Here is a list of some SLAPP suits: Last year Fomento Mining Company has slapped a Rs Five Billion criminal defamation suit against anti-mining activist Sebastian Rodrigues, a PhD student, for publishing false and defamatory articles on his blog against the companys mining operations. One of the worse examples of SLAPP is against Umendra Dutt, an organic farmer who started a movement Kheti Virasat Mission in Punjab. He is working to promote sustainable ecological
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agricultural practices, conservation and regeneration of natural water resources and to re-establish the traditional wisdom and practices related to water. In 2006, he was sued for Rs Five Crore by United Phosphorus Limited, a leading pesticide manufacturer. What is the reason? Well, he was informing people about the public health studies on pesticide exposure and how it could lead to congenital malformations and genetic disorders! Endosulfan is a deadly pesticide banned in many parts of the world, but in Kerala it was sprayed for years in government-owned plantations. Today, villagers who lived close to the plantation are paying the price, despite an indefinite ban on the substance. Many of them were paralysed or are seriously ill. Swarga and other areas like Padre, Muliyar and Bellur in Kasaragod district of Kerala have become living examples of how the poison in pesticides could be lethal to our health when used to excess and carelessly. Dr. Mohana Kumar in Padre in Kerala was among the first to notice that something was seriously wrong with the health of the people in the area. When he started his medical practice there in 1982, he observed that there was an abnormally high incidence of diseases of the central nervous system, psychiatric problems, mental retardation, cerebral and genetic abnormalities and cancer. He started talking about it wherever he went. The Crop Care Federation of India sent him a strong legal notice threatening massive damages. In 2006, Madhumita Dutta, an environmental activist, received legal summons to appear before a court in Warangal, Andhra Pradesh. The defamation case filed by the pesticide industry association, Crop Care Federation, claimed that Toxic Links report, The Killing Fields of Warangal, had caused them harm. Although no companies were named, it documented over 500 deaths among pestide-exposed farmers in the cotton fields of Warangal, India, where endosulfan is common. Only last month, the judgment on the case quashed the defamation suit against the activists. In 2001, the Shree Maheshwar Hydel Power Corp Ltd (SMHPC) had filed a suit against the Narmada Bachao Andolan (NBA) seeking to restrain the movement from making public
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statements on its hydel power project in Madhya Pradesh. The company had asked for a permanent injunction against the activists restraining them from making any defamatory statements or declarations against the project and the project authorities or carrying out any agitation or protest against the Maheshwar project. After hearing the defamation suit, the court passed its final order observing that SMPHC had withdrawn whatever evidence had been submitted by way of affidavit and documents by tendering a withdrawal application. The Court dismissed the suit. We see a similar pattern in the case of PepsiCo asking for directions from the Delhi High court to stop the Centre for Science and Environment (CSE) from publishing statements and to withdraw all materials from circulation and from its website. PepsiCo filed a writ petition in the Delhi High court, which said that CSE is a non-governmental organisation (NGO) having no legal authority or recognition and therefore, the report prepared by a private person does not have any sanctity in law and could not have been binding upon any person, much less the governmental authorities. Subsequently, the soft drink major withdrew the petition saying that the matter was being enquired into by a Joint Parliamentary Committee in which it has full faith. The petition was declared dismissed as withdrawn by Justice B D Ahmed. In another case Dow Chemical sought an injunction to restrain the International Campaign for Justice in Bhopal and others from picketing, holding demonstrations outside its office in Chennai, harassing and preventing employees from entering or leaving the premises. The Madras High Court held that international companies operating in India cannot claim any extra legal rights over Indian people and cannot prevent the public from holding demonstrations in front of their office. The court noted that the people of India, empowered with a right provided in the Constitution of India, are entitled to make grievance on any issue. Their mouths cannot be gagged either by the Government using its police power or by the Courts by the grant of preventive injunctions. The court said: Before the issuance of a prior restraint on a citizens right to free expression guaranteed
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under Article 19(1)(a) or their Article19(1)(b), there must infringement of the right of courts are bound to protect protest on public issue.
right to hold peaceful assembly under be established a clear case of an aggrieved person. Otherwise, the the rights of parties to express their
Recently, Jindal Steel and Power Limited lodged an FIR against Ramesh Agrawal accusing him of extorting money from the company and issuing threats to its senior management. Now who is Ramesh Agarwal? He is a founding member of Jan Chetana, an NGO which monitors mining and industrial projects in Raigarh. Agarwal had been writing letters to the Ministry of Environment and Forests drawing its attention to violations by Jindal Power. He alleged that the company had begun construction on the site of its proposed power plant even before getting environmental clearances. The Ministry sent a team to investigate, which found the allegations to be true. The Ministry of Enviornment and Forests withdrew the 'terms of reference' to the project, in effect rejecting the proposal. After a few days, JSPL registered an FIR against Agrawal, accusing him of demanding Rs five Crore from the company! Free speech and expression is the life blood of democracy. Any action, even civil injunctions, damages, or threat to damages, are bound to chill the exercise of that invaluable right of the people to protest. By giving such orders, or allowing claims for damages, for perceived injury to reputation, the harm done to freedom of the press, which facilitates a free flow of ideas is incalculable.
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Hate Speech: The fault line that divides advocates of free speech The legislative intention of hate speech laws seem to be on a permanent collision course with their real effects. Rather than protecting minorities from the vitriolic outbursts of the law has been consistently used by an intolerant majority whose sentiments are easily hurt. Hate speech laws are in desperate need of review and overhaul, urges LAWRENCE LIANG.
June 24, 2010
The regulation of hate speech constitutes one of the fault lines that divide advocates of freedom of speech and expression. On the one hand, you have free speech advocates who argue that we need to have a narrower understanding of hate speech laws than those that exist currently, and on the other side you have tireless advocates of free speech who believe that it is important to have stringent hate speech laws which can used against those who propagate violence or hatred against communities, particularly the Hindu right wing in India. A discussion of hate speech laws has to be placed within the context of the emergence of religious fundamentalism. It is now commonplace to see the provision being used by various religious groups who feel aggrieved by a speech or an act. The most notable uses of hate speech laws in recent times have been the M F Husain case, the banning of James Laine's book on Shivaji and the arrest of a final year art student Chandramohan (an example of the unholy alliance between Hindu and Christian fundamentalists). Supreme Court advocate Rajeev Dhavan terms the use of hate speech provision such as Sec. 153 A of the IPC as akin to the use of SLAPP suits (Strategic Legal Action against Public Participation refers to law suits that are filed to prevent people from engaging in public interest activities). Dhavan innovatively describes the use of hate speech laws in India as kicks ([k]riminal intimidatory coercive knock out strategies). Art. 19(2) of the Constitution does not specifically mention hate speech, nor is the phrase actually used in any other legislation: but
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the substance of the previsions exists in a number of provisions. Art. 19(2), for instance, contains the phrase incitement to an offence. It is also covered in Sections 153A, 295, 295A and 505 of the IPC. The Cable Television networks Regulation Act and rules cover it via Sections 5 & 6 and rule 6(1)(c) and rule 7. It is also covered by Section 5-B of the Cinematograph Act, Section 69 of the Information Technology Act, Sec. 123(3)(a) of the Representation of the People Act. The most significant provision remains Sec. 153A of the IPC, which criminalises hate speech: [153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony: -(1) Whoever
(a) By words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place or birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) Commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, 2[or] 2 [(c) Organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence of knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such
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religious, racial, language or regional group or caste or community,] Shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.: (2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.] As is clear, the scope of Sec. 153A is extremely broad, hence it is amenable to use by various groups who claim that their sentiments have been hurt. Role of the media and the judiciary Post Ayodhya and Gujarat, there has been an increase in religious violence in India. The role of the media in the promotion of violence against Muslims in the aftermath of the burning of the train at Godhra has raised concerns about the ways in which the media can be used to fuel hatred against a community and the role that it can play during conflict. At the same time, when you see the actual operation of the law, you find that the only time that hate speech laws have been found to be effective is when they are used by the majority or used by the state to ban a book or a film. In fact, it has been demonstrated that the provision is often used by the state to silence any criticism levelled against it. In Bilal Ahmed Kaloo v. State of A.P., a Kashmiri youth was arrested for inciting people in Hyderabad against the atrocities committed by the Indian army in Kashmir. In this case, the Supreme Court held that Sec. 153A could not be said to apply since the section requires the involvement of two communities. It held that The common feature in both sections being promotion of feeling of enmity, hatred or ill-will between different religious or racial or language or regional groups or castes and communities it is
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necessary that at least two such groups or communities should be involved. Merely inciting the felling of one community or group without any reference to any other community or group cannot attract either of the two sections. Again, while the judiciary is itself not outside of the politics of communal hatred, there are instances when the use of hate speech laws itself become the site for the production of hate speech. A glaring example of this is the case brought against Bal Thackeray, the head of the Shiv Sena in Mumbai, after the Bombay riots. Joseph Bain DSouza, a retired Municipal Commissioner of of Bombay filed a complaint under Sec. 153A of the IPC against Thackeray for his role in the incitement of violence against Muslims. As evidence, D'Souza produced a number of extracts from articles written by Bal Thackeray in the mouthpiece of the Shiv Sena, Saamna, in which Thackeray exhorted people to act against the muslim traitors' of the country. Consider for instance the following examples form Bal Thackeray's writings before the riots: Municipal Deputy Commissioner Mr. Khairnar risked his life to use the bulldozer in Bhendi Bazar which has become a heaven of Pakistani infiltrators and anti-national Muslims. Moulvis and mullah have corrupted Bhendi Bazar. The poision of treachery (anti nationalism) is flowing through every vein (lane) of Bhendi Bazar. "Traitors Muslims have started acts of violence in the country after the dome of Babri Masjid collapsed. We are once again finally warning them that they should understand the sentiments of Hindu majority and merge themselves in the national mainstream. If you got carried away by the selfish leaders who push you into hell and attack Hindus, beware. The case came up before the Bombay high court, and in interpreting whether these words fell within the ambit of Sec. 153A of the IPC, the court ended up producing their own version of hate speech. The court for instance says that the section is intended to take action against people who incite hatred against a community. In their opinion
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If we take into consideration the article as a whole, it is clear that the criticism is against anti-national or traitors section of Muslims and their selfish leaders who are creating rift between Hindus and Muslims and in the aforesaid portion reference is also made that Muslims should understand the sentiments of Hindu majority and merge themselves in the national mainstream instead of being carried away by the selfish leaders who were prompting to attack Hindus. It would be interesting to probe the anthropological origins of hate speech as well as the deeper philosophical analysis of the relationship between language, identity and the subjective idea of hurt. There has been some groundbreaking conceptual work done by Judith Butler in the context of the US, but in the Indian context, we have only had journalistic accounts with a few notable exceptions. While much of the debates on hate speech in India are shaped in the context of race in the US and right wing Nazism in Europe, hate speech laws in India have emerged in the context of religious conflict. Colonial history As with most of the other provisions regulating speech in India, hate speech laws were introduced during the colonial period. Speaking of the need for stronger historical and ethnographic detail on hate speech, sociologist Deepak Mehta for instance asks of how the juridical establishment of hatred' by the introduction of hate speech laws converts what may well have been a minefield of different affects (jealousy, loath, disgust, indifference) under one juridical category, and what the implications of such a transformation are. A perusal of controversies over books in the colonial and postcolonial period reveal that most of them relate to the question of incitement of hatred' or the outraging of religious sentiments' of communities. Sec. 295A of the IPC for instance was introduced after the judgment in the famous Rangeela Rasool case. The Lahore high court had acquitted the publishers of Rangeela Rasul, a book which was alleged to have insulted Muslims. The acquittal resulted in massive demonstrations and protests across colonial India. The protests prompted the colonial legal authorities to introduce Sec.
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295A of the IPC, which survived into the postcolonial period. Sec. 295A as it currently stands states that Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."' In Karnataka, the controversy over the publication of Banjagere Jayaprakash's book Anudeva Horaganavanu, and the demand for banning it, is a rather disturbing and scary scenario. The book claims that Basava, an important saint of the twelfth century and a key figure behind the origins of the Lingayat community, was actually born in a low caste Maadiga community. The Lingayats have been up in arms, and have demanded a ban of the book. The actual history behind contestations over Basava go right back to the fifteenth century, but the juridical establishment of hate speech' converts a range of hermeneutic and truth disputes into a question of the juridically verifiable feelings of a community'. A disturbing trend that we see being accelerated in the contemporary is the production of hate speech' through the intertwined strategies of using vandalism, producing a discourse of hate through the media, and finally using existing laws to harass writers and film makers. Speaking about the sustained campaign that the Hindu Right has maintained against noted Indian artists M F Hussain, Dhavan argues that The first stage was to create a controversy where none existed. Prior to this, no hate speech was either attributed to or provoked by the Husain sketches and paintings. In fact, this first stage could be described as the manufacturing of hate speech' by the forces of the Sangh Parivar. The second stage was to manipulate the law in an area of India where the politics of that State were favourable to harassing Husain. This has become easier because there are many states where the BJP is in power. The law does not insist on prosecuting hate speech in the state where the magazine is printed
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and published. A prosecution can take place where the publication is distributed by sale or gift. The third stage was the stage of intimidation by vandalism. The perpetrators of the vandalism are conscious that they can get away with it because they claim to be the spearhead of a social campaign for the defence of the faith. Attackers of Husain's work were, therefore, projected as heroes! It was not necessary that these three stages follow any linear pattern. They were part of a composite strategy which could be disaggregated for strategic use. At the moment, the law as it currently stands is in desperate need of review and overhaul. The legislative intention behind hate speech laws seem to be on a permanent collision course with their real effects. Rather than protecting minorities from the vitriolic outbursts of Praveen Togadia and Co., the law has been consistently used by an intolerant majority whose sentiments are easily hurt. The use of hate speech laws as a harassment device demands that we seriously rethink the scope and application of these provisions. The current scope of hate speech laws in India is far too wide and subjective. It would be difficult to identify a single work of art, a film or any book which does not have the possibility of hurting or offending someone. In the US, the understanding on hate speech has shifted from a subjective test to a more objective criteria which depends on the determination of whether there was a clear and present danger posed by the speech act in question. If one were to ban all speech that offends our delicate sentiments, then we would be left with precious little (all comedies would certainly have to go). The present law privileges the subjective feeling of hurt or outrage that someone may feel about an expressive or artistic statement and enables the person to complain. And here is where the catch lies. Given the rather flimsy legal grounds on which most complaints are made, it is unlikely that the complaint will stand the test of law. But it does not really matter since the real punishment is the procedure itself. Its efficacy as a harassment tool is unmatched and the fact that a student can be arrested for an art work which was meant to be a part of a college
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exhibition testifies to its draconian status. Finally, it is worth thinking about the impact that hate speech laws can have on creative and artistic expression. The role of art is to create provocations, to incite disagreement and to express opinions which may be uncomfortable or even insulting. Free Speech in India has been held ransom for too long by our imagined fears of the chaos and anarchy that speech can produce, but it is perhaps worthwhile recalling Eliot's statement that genuine blasphemy is the product of a partial belief, it is as unavailable to the complete atheist as it is to the complete believer. The only way ahead is by rethinking our hate speech laws so that we can all get hearing aids to assist in our ability to speak and listen fearlessly.
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Free Speech and Privacy : drawing the contours
Body scanners and the right to privacy Already, the proposal has triggered objections and the Darul uloom at Deoband has stated that it would be against the Shariat. GEETA SESHU looks at issues surrounding the decision to introduce body scanners in India.
April 01, 2010
Mindful of the controversy in the West on the use of full body scanners at airports, the Indian government is moving with caution as it proposes to introduce the scans from July this year, first at Delhi airport and then in Mumbai. The Union aviation minister Praful Patel said, in an announcement in the Rajya Sabha on March 10, that the scanners would be introduced on a trial basis. The government was yet to finalise the type of technology that will be used, he said, adding that appropriate safeguards and certification for privacy and health issues will be incorporated.' The Central Industrial Security Force (CISF), in charge of the security in 57 airports across the country, is keen on introducing the machines but admits that there are ethical issues involved. The CISF Additional Director General MS Bali told IANS, People object that their private body parts are revealed. But if these are covered, people can hide explosives in their clothes." Already, the proposal has triggered objections and the Darul uloom at Deoband has stated that it would be against the Shariat. The Vice-chancellor of the seminary, Maulana Abdul Khalik Madrasi supported a fatwa issued by the Fiqh Council of North America (FCNA) against the scanners. Two women passengers bound for Pakistan from Heathrow airport decided to forgo travelling rather than subject themselves to a body scan in March. Airport officials insisted they were selected at random. However, one of the women refused on medical grounds while the other cited religious reasons for refusing to undergo the scans.
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Closer home, Hindi film actor Shah Rukh Khan said in a celebrity chat show on television in the UK that he was subjected to a body scan at London's Heathrow airport and that he even autographed a copy of his body scan for security operators. This was denied by a spokesperson for British Airport Authorities, who said that there was no way the scans they took were stored or reproduced. Body scanners are already being used in some international airports, including London's Heathrow airport, Amsterdam's Schiphol airport and in 19 airports in the USA. The machines primarily use two kinds of technology _ backscatter X-ray technology and millimetre wave technology. Security agencies argue that these are less invasive than pat-down' body searches currently in operation. However, with the detailed imaging of the nude body of the airline traveller, the use of such machines amount to virtual strip searches'. Civil liberties groups worried about misuse Their use or possible misuse for women or children, people from minority communities, ethnic groups etc, has alarmed civil liberties groups in the West. The Electronic Privacy Information Centre (EPIC), a Washington-based watchdog on privacy issues has spearheaded a coalition of organisations to seek safeguards and the regulation of a code for the use of such machines. In one such effort, the machines are used and operated by only two security officers - one who comes in contact with the passenger and operates the machine but does not see the passenger's image and the other who does not come in contact with the passenger but sees the image. Moreover, the image is meant to be destroyed almost immediately - therefore the machine's storage capacity is also regulated. In a scathing indictment against the increasing use of instruments such as body scanners, Martin Scheinin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said: These measures have not only led to violations of the right to privacy, but also have an impact on due process rights and the
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freedom of movement ??" especially at borders ??" and can have a chilling effect on the freedom of association and the freedom of expression. In his report to the UN, he said: In the name of countering terrorism, States have expanded initiatives to identify, scan and tag the general public through the use of multiple techniques which might violate an individual person's right to privacy. When surveillance occurs of places and larger groups of people, the surveillance is typically subject to weaker regimes for authorization and oversight. Human rights standards have been tested, stretched and breached through the use of stop-and-searches; the compilation of lists and databases; the increased surveillance of financial, communications and travel data; the use of profiling to identify potential suspects; and the accumulation of ever larger databases to calculate the probability of suspicious activities and identify individuals seen as worthy of further scrutiny. More advanced techniques are applied as well, such as the collection of biometrics or the use of body scanners that can see through clothing. Some intrusions into people's lives can be permanent as people's physical and biographical details are frequently centralized in databases. He later told journalists that, in the fight against terrorism, scanners were both an ineffective means of prevention and an excessive intrusion into individual privacy. "The use of a full-body scanner which reveals graphic details of the human body, including the most private parts of it, very easily is a violation of human rights. It would be a violation of human rights in respect to everyone, but there are particular sensitivities in respect of women, certain religions, certain cultural backgrounds," he said. At the crux lies the issue of balancing legitimate public concerns for security and safety and the sweeping powers available with lawenforcing authorities to intrude into private spaces. While the contours of the private are increasingly unclear, the necessary checks and balances to authority can and must be laid down. More information is the need of the hour and then, more discussion. Only then can clearer choices be made on this contentious issue.
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Privacy is not a trade off for transparency Agencies of the State and the private sector are collecting a variety of data on individuals. Adequate regulatory measures are needed to rein them in and safeguard individual privacy and data protection, says VENKATESH NAYAK, discussing government consultations on a proposed privacy law
August 27, 2010
Big Boss may be watching your every move and there is no eyepopping prize money for surviving the ordeal of the house of horrors! While a miniscule percentage of the population eyeball the shenanigans of fading and wannabe celebrities on the telly reality show, season after season, the less theatrical but very real Big Boss, aka, the Kafkaesque State, keeps watch over unsuspecting citizens day in and day out without so much as a murmur of protest. Consider this scenario: You are an honest and law-abiding citizen who visited a police station to lodge a complaint about your missing mobile phone? What would you get? Of course, apathy to start with, and if you were fortunate enough, filing in slow motion of a noncognizable complaint by a very busily yawning policeman. But if you are an honest and law-abiding citizen who is also in the habit of filing RTI applications for different issues, you might just find out that your phone was under the Big Boss's surveillance even before you lost it. When I learnt of this true story, my benumbed mind sought to know who authorised disclosure of information from the RTI application to the police and under which law? Such abuse of personal data would have been difficult if we had a sound legal architecture for protecting the privacy of individuals and for regulating the manner in which data about individuals is collected, processed and shared across agencies in the public and private spheres. In the absence of a sound law to protect personal data of citizens, arbitrary actions of the kind narrated above occur unfettered. The recent launch of a debate on a law to protect privacy and personal data by the Central Government must be situated in this
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context of the growing paranoia of the surveillance State. The Indian government, through the Department of Personnel and Training (DoPT), initiated a public consultation on this subject on 21st July this year. According to the DoPT, the increasing practice of digital data processing about individuals in the public and private sectors has necessitated the drafting of a law to protect privacy and personal data. The handling of millions of bytes of personal data by BPO entities and the need for having a legal framework acceptable to the international community were also cited as reasons. The DoPT operates under the Ministry of Personnel, Public Grievances and Pensions,) Government of India and senior bureaucrats from the Department of Information Technology, Ministry of Finance, Department of Legal Affairs, NATGRID, Registrar General, Census of India, Finance Intelligence Unit and the Indian Banks Association participated in this meeting. A handful of representatives from civil society and a law firm also took part in the deliberations held in Delhi. (See DoPT Summary of the Proceedings of the Workshop on Legal Framework for Privacy, Data Protection and Privacy, 21 July, 2010: http://persmin.gov.in/WriteReadData/RTI/12AUGUST.pdf accessed on August 26, 2010. The DoPT which is under the overall charge of Prime Minister of India has invited suggestions from civil society on what a law to protect privacy must contain. Readers are requested to send their suggestions to the Secretary DoPT at: secy_mop@nic.in) Is right to privacy a Fundamental Right? The Constitution-makers did not include the right to privacy in its fundamental rights chapter. Yet the demand for State protection to the citizens' right to privacy was part and parcel of India's struggle for independence from colonial domination. The Constitution of India Bill drawn up in 1895 under the influence of Tilak and Annie Besant and the Commonwealth of India Bill adopted in 1925 at an all-party conference chaired by Gandhiji, both called for constitutional protection for the right to privacy. However the
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Swaraj Constitution of 1928 drawn under the guidance of Motilal Nehru and Subhashchandra Bose failed to mention it. In 1950, while the right to property and the freedom to speak, express oneself and move about freely (all distinct elements of the right to privacy) were given constitutional status, the right to privacy was left out. For the first time, in Kharak Singh vs The State of Uttar Pradesh (AIR 1963 SC1295) in 1962, the Supreme Court of India read the right of privacy into the fundamental right of life and liberty guaranteed under Article 21 as a measure of stemming the excessive intrusion of the surveillance State in the private lives of citizens. Successive pronouncements of the apex court have elevated the individual's right of privacy to the status of a deemed fundamental right. The protection for life and liberty and consequently privacy under Article 21 is available to any person in India without limitations of citizenship. But the Court declared that the right to privacy is not absolute and may be subject to restrictions if there is a countervailing State interest. The burden of proving that such a pressing interest exists is on the State agencies. The statutory requirement that women and juvenile witnesses in any criminal case must be questioned only at their residences is a clear recognition of the need to protect the privacy and dignity of such people. Yet, violent intrusions into the homes of dalits, adivasis, and minorities by law enforcement agencies under the pretext of conducting combing operations and interrogations are a common occurrence today. Often such incidents do not even find mention in the mass media. Compensation for violation of privacy by State agents is a far cry. Click here to read complete article. (The author is with the Commonwealth Human Rights Initiative, New Delhi)
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Say No to UID: call for a national campaign Are the risks of surveillance and profiling acceptable trade-offs for the inclusion and portability of the Unique Identification Number (UID) that government officials believe the scheme will confer? KALYANI MENON-SEN argues that it will not and says that a campaign against the scheme was launched in New Delhi last week.
August 29, 2010
A meeting of concerned citizens gave an unequivocal thumbs down to the proposed UIDAI Bill and launched a national campaign of non-cooperation with the controversial Aadhar scheme that is already being piloted in some districts of the country. Human rights activists, representatives of Dalit and minority organisations, IT professionals, urban rights groups, security experts, development workers and Members of Parliament Abani Roy (Revolutionary Socialist Party) and Syed Azeez Pasha (CPI) spoke at the meeting, held on August 25, 2010 in New Delhi. The Government of India and Nandan Nilekani, Chairperson UIDAI, have been claiming that the UID scheme will enable inclusive growth by providing each citizen with a verifiable identity, that it will facilitate delivery of basic services, that it will plug leakages in public expenditure and that it will speed up achievement of targets in social sector schemes. Presentations by experts at the meeting comprehensively debunked these claims. Speaker after speaker pointed out that while exclusion and leakages in social sector schemes are serious issues; these are not caused by the inability to prove identity but by the deliberate manipulation of the system by those who have the power to control the flow of benefits. The UID scheme disowns all responsibility for these systemic issues. In fact, a working paper prepared by the UIDAI states that the UIDAI is only in the identity business. The responsibility of tracking beneficiaries and the governance of service delivery will continue to remain with the respective agencies -- the job of tracking distribution of food grains among BPL families for example,
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will remain with the state PDS department. This being the case, it seems an unjustified leap of faith for Nilekani and the government to claim that that the UID scheme will promote equitable access to social services. Fears of surveillance and violation of privacy Legal researcher and civil rights activist Usha Ramanathan pointed out that the UID proposal violates the individual's right to privacy, currently protected under both international and domestic law, and held by the Supreme Court to be implicit under Article 21 of the Indian Constitution. Although participation in the UID scheme is supposed to be voluntary and optional, personal and household data for the National Population Register is already being collected by Census enumerators. Census respondents are being told that it is mandatory to submit personal information for the National Population Register. This information is being made available to the UIDAI, in contravention of Section 15 of the Census Act which categorically states that information given for the Census is neither open to inspection nor admissible in evidence. The draft Bill does not contain any mechanisms for credible and independent oversight. This increases the risk of the government adding additional features and data, or sharing the database with other agencies, without informing or taking the consent of citizens and without re-evaluating the effects on privacy in each instance. The centralised database where personal data will be stored can easily be converged with other databases, such as databases maintained by police and intelligence agencies, or by corporates like banks and credit card companies. More troubling is the possibility that the UID database will be used to identify and eliminate maoists, terrorists, habitual offenders, political opponents and others who are perceived as threats by those in power. There was general agreement that the involvement of the state in mass carnage (as in Delhi in 1984 and Gujarat in 2002), and the Government's support to and defence of the widespread use of encounter killings and other extra134
constitutional methods by the police, armed forces and vigilante groups like the Salwa Judum in Chattisgarh and the VHP in Kandhamal, has already created an enabling environment for abuse of the UID database to serve undemocratic, illegal and unethical purposes. Speakers expressed concern that Nandan Nilekani and his team have consistently deflected and refused to respond to concerns about security, surveillance and human rights, which have been repeatedly raised on public platforms by concerned citizens. Senior UID officials have even stated that the risks of surveillance and profiling are acceptable trade-offs for the inclusion and portability that the scheme will confer. Risks of exclusion and false data Internet security and biometrics expert Jude DSouza argued convincingly that, far from facilitating inclusion, around 150 million people are likely to be excluded from social benefits as a result of the UID scheme. Fingerprinting and iris scans -- the two biometrics that the UID scheme will use -- have been shown to have a high margin of error and are easily spoofed, and are therefore unreliable as identifiers. Agricultural workers, construction workers and other manual labourers have calloused and scarred fingers and low-quality fingerprints. An NREGA beneficiary could present his newly-issued UID number as a conclusive proof of identity to claim payment, but could find the application rejected because a fingerprint scanner could classify the applicants worn-out fingers as a so-called false negative. Even going by a conservative error rate of 5 per cent, this means that at least 15 lakh people out of the 30 million NREGS job card holders will be put at risk of exclusion. Iris scans are no more reliable than fingerprints. An iris scan cannot be done on people with corneal blindness, glaucoma or corneal scars. This means that the 6-8 million Indians with corneal blindness, and the much larger number of people with corneal scars (caused by infections or injuries to the eyes) will be excluded from the scheme.
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Both fingerprint scanners and iris scanners can easily be spoofed or fooled -- for instance, latex and adhesives can be used to create false fingerprints and coloured contact lenses can obscure iris patterns. Security gaps in UID software technology IT security experts warned that the technical details of the UID software are easily available and security experts have already assessed the UID database as being very vulnerable to hacking. A confidential working paper titled Creating a Unique Identity Number for every resident in India, recently posted on the transparency website Wikileaks, admits that the UID database will be susceptible to attacks and leaks at various levels. The recent arrest of a Hyderabad-based software professional who demonstrated the security gaps in electronic voting machines raises the concern that researchers and IT security experts who are exposing the vulnerabilities in the UID software, are likely to be penalised and silenced. Huge amounts of money that have been made available to the UIDAI, without any approval from Parliament or discussion in the public domain about the necessity of such a scheme. It took several RTI applications from citizens groups before even the basic documents were uploaded on the website. The point was made that the allocation to UIDAI was at the cost of other social sector schemes. MPs Abani Roy (Revolutionary Socialist Party) and Syed Azeez Pasha (CPI) deplored the undemocratic way in which the UIDAI has been set up and characterised the UID scheme as an expensive and dangerous project through which several companies will capture massive contracts at the expense of the public exchequer. There was universal agreement on the need to take immediate action to inform people of the risks involved and the false claims being made by the UIDAI. The UID scheme needs to be seen in the larger context of the shrinking space for democratic dissent, undermining of civil liberties and cooptation of civil society groups and movements into becoming guarantors and monitors for
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supposedly rights-based schemes such as the NREGA. It is a matter of concern that many civil society groups, the media and opinion-makers are lending their support to the scheme without examining its implications. The group decided to launch a campaign of non-cooperation to stop the UIDAI in its tracks. Activities for broad-based public education and mobilisation, as well as lobbying with MPs and key opinionmakers will also be intensified in the next few months.
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The right to privacy is not valid because we are talking about professional conversations about public policy Senior Supreme Court advocate Prashant Bhushan speaks about the publics right to know, in a telephonic interview with GEETA SESHU.
December 06, 2010
The petition filed by the chairman of the Tata Group, Ratan Tata, against the disclosure of the Radia tapes has raised interesting questions about surveillance, privacy and public interest. While Tata believes that his privacy was violated by the disclosures, the senior Supreme Court advocate Prashant Bhushan stoutly maintained that the disclosures were in the public interest and must be allowed. Prashant Bhushan had already filed a public interest litigation on behalf of the Centre for Public Interest Litigation to seek the prosecution of the former Union telecom minister A Raja for his role in the 2G scam. He had appended a copy of the tapes to his petition, following which two magazines, Outlook and Open, published transcripts of the tapes and the former uploaded 104 tapes on its website. At least 5,861 call intercepts have been recorded for 120 days each from August 20, 2008 onwards and from May 11, 2009. In an interview with the Free Speech Hub, he spoke of the privacy issues raised by Tata and the rights of citizens to information. Q: What do you think of the petition filed by Ratan Tata citing privacy concerns in the tapes disclosures? Ans: There are two aspects to the matter - the right to privacy versus the right of citizens to know and the right of the media to reveal information. Under Sec 8 (1) (j) of the Right to Information Act, 2005, which deals with exemptions, it is clearly stated that there shall be no disclosure of: (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the
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State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Now, the subject of the telephone conversations clearly has a vital bearing on public interest. It deals with government policy or decisions or planting stories in the media about government policy. So it is in the public interest. Only a very minor part of the conversation can be considered personal in nature (the discussions on the black dress) which would probably be material for Page 3! Q: This reference seems to have cut him (Tata) to the quick... Ans: No, this is not what has cut him to the quick. What has cut him to the quick is the fear that these tapes that are not yet in the public domain may disclose some of the illegal dealings of the Tatas and are likely to disclose much more... Q: So how is the right to privacy affected? The right to privacy is not valid in this instance because we are not talking about personal conversations. These are professional conversations dealing with public affairs and policy. Even if it was dealing with the company affairs of the Tatas, it could perhaps be seen as in the private realm. But these were clearly conversations about policy. The other part of the exemption of disclosure under the RTI Act is the matter of all information which cause unwarranted invasion of privacy of the individual unless the disclosure is justified in the larger public interest. Q: The Supreme Court has issued notice to the two magazines that have carried transcripts of the tapes. What do you think will happen now? Will Tatas petition have a chilling effect on freedom of expression? A: The notices to Outlook and Open magazines are good and were issued in order to hear their points of view, not merely that of the government. The chilling effect could be an unfortunate fallout of
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this petition but I don't think the petition (filed by Tata) can stop it altogether. Instead, there is likely to be a healthy debate on issues of privacy and public interest. Q: Tata has said, in an interview to the Indian Express, that he supports phone tapping for national security and law and order. Can he then claim protection under right to privacy? A: I don't think Tata is particularly concerned with larger privacy issues. In fact, I don't think he is particularly concerned that this information is with the government. It is the information getting to the public that he is concerned about. Because he does not fear the government, he thinks he can deal with the government. For an honest businessman, this shouldn't be the case, fearing the public. It should be the other way round. Actually, I use the concept of a public whistle-blower, where a public official in the course of his duty comes across information and if the disclosure of that information does not compromise any private aspect, it is the right and the duty of that public official to disclose such information to the public. In fact, in the law being drafted to protect the whistle-blower must contain a provision that he must go to a public agency. I go a little further, even if no cover-up is taking place but if the information is such that the citizens have a right to know about it, the whistle-blower should disclose it. Q: There have been concerns about privacy in relation to the UID. What is your view on this? A: My own view of UID is that I have no problem if the information contained in the UID is publicly available and that every citizen has a right to know that information. I have a problem if it is selectively available to the government, not to the people. In fact, I feel that one thing that can be done to check corruption is to demonetize above Rs 50 notes so that any payment that is done for over Rs 1,000 must be paid by credit card or cheque so that everyone can see this financial transaction. This will greatly reduce black money.
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Q: The right to privacy is also seen as part of the right to freedom of expression. But are they in conflict here? A: No. The tapes do raise a very limited issue of freedom of expression. Freedom of expression, as the Supreme Court said, includes the right to information.
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Section II Free Speech Tracker 2010: A summary Attacks on the media continued with impunity throughout 2010, the dissenting voices of writers and civil liberties activists were met with charges of sedition, vigilante groups continued to have a field day issuing diktats against films, plays, books and posters, and the State stepped up measures to restrict broadcast and mobile communication in conflict areas and monitor mobile and internet communication. In the first-ever exhaustive tracking of the state of freedom of speech and expression in India, the Free Speech Hub recorded 27 attacks on journalists, nine arrests or detention of journalists on various charges, six instances of attacks on writers and civil liberties activists, three cases of sedition against writers and civil liberties activists, 33 instances of curbs by vigilante groups on books, cinema, television shows, mobile communication or theatre performances and 34 instances of State or judicial restrictions and regulations on books and television shows. The year 2010 also saw renowned artist M F Husain give up his Indian citizenship after prolonged harassment from right-wing forces. Despite belated assurances from the Indian government that he would be protected, the 92-year old artist chose to stay away. In March, two persons lost their lives in Shimoga, Karnataka, protesting an article on the burqa in Kannada Prabha, If, on the flip side, the judiciary rejected a ban on books (Shivaji: Hindu king in Islamic India by James Laine; Breathless in Bombay by Murzban Shroff) and upheld the right of Tamil actress Khushboo to express her opinions, on the other hand, the increasing attempts by the Indian government to demand encryption codes from service providers like Blackberry and more cyber regulations of email services citing security reasons and privacy issues in data-gathering
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for the UID, have only led to fears of a surveillance State. The deadline set by the Indian government expires January 31, 2011. In all the major zones of conflict Kashmir, Chhattisgarh, Orissa and the North-East, particularly Manipur, the media have been under attack, whether from security forces or from insurgency groups. In other areas, journalists were attacked merely for nosing around or for their investigative reports against police. Curbs on the media in Kashmir during the protests throughout April-July 2010 included bans on SMS, television channels and the distribution of newspapers. The ban on SMS was only partially lifted for post-paid subscribers at the end of the year. Journalists were particularly targeted by security forces in the ongoing conflict in Kashmir. Photographer Amaan Farooqui was shot in the leg by Deputy Superintendent of Police Safdar Samoon when he went to cover an encounter between security forces and alleged terrorists, Gowhar Bhat was assaulted by police while covering a PDP demonstration and later, during the height of the agitation by stone-pelting youth, Asif Qureshi, bureau chief of Star News, was made to pick up stones by CRPF jawans! In Chhattisgarh, journalists caught in the crossfire between security forces and Maoists are wary of venturing too deep into the forests to cover the states Operation Green Hunt against the Maoists. Priyanka Borpujari and Satyen Bordolai, two journalists and film-maker Nishtha Jain were detained in January when they had gone to cover a jan sunwai (public hearing) there while in December, journalists NRK Pillai, Yashwant Yadav and Anil Mishra were threatened by the state-sponsored vigilante group Salwa Judum. In Orissa, the frequent attacks on journalists prompted a special investigation by the Free Speech Hub and its report concluded that the state remained a mere spectator as vested interests, including mining lobbies, had rendered the process of news-gathering dangerous and fearful.
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In Manipur, both militant groups as well as state security forces attacked journalists in a series of incidents throughout the year. Moirangthem Romeo and Atom Lukhoi, were arrested by police without the issuance of any arrest memo while death threats were issued to A Mobi, editor of The Sanaleibak, newspapers in Imphal, Manipur, stayed off the stands due to threats by militants, while Yumnam Ibomcha was beaten up by paramilitary troopers, In Hyderabad, Andhra Pradesh police lathi-charged journalists covering the student agitation over Telangana, Karnataka police threatened the use of UAPA against journalist Rahul Belagali and later in the year, charged Tehelka journalist K K Shahina with intimidation of witnesses. Earlier, G Vishnu, of the same magazine was held by central security forces while working on a story about a nuclear installation in Jamshedpur, Jharkhand. Even covering a routine fire incident was fraught with danger, as Amit Joshi, journalist of Zee 24 Taas, found to his detriment. Impunity ruled as CRPF jawans brutally beat up journalists in Lalgarh, West Bengal and CISF jawans attacked journalists, this time in Angul, Orissa! The offices of TV Today in the national capital New Delhi, was attacked by a mob allegedly oweing allegiance to the RSS, while Shiv Sena supporters attacked the office of Zee 24 in Kolhapur, Maharashtra. Prominent writers had a tough year for standing up for their views. While Arundhati Roy was charged with sedition for her views on the separatists movement in Kashmir, Paul Zachariah was attacked by alleged DYFI members in Kerala for his criticism of the latters attempt to impose its own morality on society and police raided the residence of Oriya writer Dandapani Mohapatra for alleged links with Maoists. The sedition charge was also levyied against civil liberties activists like Piyush Sethia for distributing pamphlets against Operation Green Hunt in Salem, Tamil Nadu and the veteran PUCL activist and scientist Dr E Rati Rao in Mysore, Karnataka for publishing a defunct journal! Uttar Pradesh police arrested the editors of Hindi magazine, Seema Azad and Vishwa Vijay, for their alleged links to Maoists. The duo, who had campaigned against the Mayawati governments forcible land acquisition for the Ganga Expressway project, are still in custody.
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While the Uttar Pradesh government banned the release of a book allegedly derogatory to the Nehru-Gandhi family, the Andhra High Court restricted coverage of the Telangana agitation for allegedly fostering enmity between groups and also barred the release of High School, a film on a students relationship with his teacher, the Bombay High Court banned the telecast of interviews with the German Bakery blast witnesses and the Supreme Court restrained the media from allegedly sensational or scandalous reporting in the Aarushi case. Competitive politics between the Shiv Sena and the rival Maharashtra Navnirman Sena (MNS) meant that the better part of a year was spent in shopping for issues to agitate over. The Shiv Sena decided to protest Shah Rukh Khans film My Name is Khan and the MNS decided to attack mobile companies, promptly followed by the Shiv Senas targeting of FM radio stations to demand the use of Marathi and Marathi songs. Not to be outdone, the MNS targeted movie theatres for screening Marathi films! The Congress-NCP governed Maharashtra government remained a spectator. But the chilling effect was also felt by artists and theatre persons. Nandkumar Jogdand found that Nehru Centre art gallery abruptly cancelled his art show on the grounds that it was provocative. Even as the government lifted a ban on renowned filmmaker Satyajit Rays documentary on Sikkim after four decades, the film could not be screened at a film festival in Kolkata, West Bengal. The Bombay University hurriedly withdrew Rohinton Mistrys book Such a long journey from its curriculum following a protest by Shiv Sena youth leader Aditya Thackeray that the book contained derogatory references to his party. But attacks on the media or protests by vigilante groups were not the only free speech issues that came up throughout 2010. Debates on the inadequate measures to ensure privacy during data collection for the UID, Ratan Tatas petition privacy of individuals cited in the Radia tapes, defamation suits against activists and increasing state monitoring of internet and mobile communication have set the stage for free speech issues in the coming year.
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Free Speech Issues in India 2010

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Free Speech Issues in India 2010

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Free Speech Issues in India 2010

Selections from the Free Speech Hub on TheHoot.org