Noorani on Freedom of Speech and Religion: A Comment

I read A.G.Noorani’s article titled ‘Free Speech and Religion’ in the June 6^th issue of EPW with interest wherein he argues that the March 26^th resolution 7/19 of the Human Rights Council of Geneva on ‘Combating Defamation of Religions’ was entirely appropriate and criticizes Western opposition and Indian skepticism. As for the resolution itself which was previously discussed on this blog and elsewhere, it is generally consistent with Indian laws and India could therefore have justified virtually any position it took. Noorani however makes some additional points: (1) that defamation of religion is well recognized and ‘the distinction [between defamation and criticism] is well settled in law, politics and civic discourse’ (2) Citing the Danish cartoon controversy, he appears to suggest that blasphemous libel is no different from ordinary defamation (3) Western free speech arguments against blasphemy are false. All of these claims are debatable.

He cites Lord Scarman’s views expressed in his opinion in R v. Lemon (1979) to support these arguments. That judgment is however only a part of the record. The question in R v. Lemon (1979) was whether, in order to secure a conviction of blasphemous libel, it is necessary or not for the prosecution to prove the intent of the defendant to blaspheme (in addition to his intent to publish the allegedly blasphemous material). The Lords held, by a 3-2 decision that it is not required. Lord Scarman summarized his view as follows:

Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as bylaw established. It is not blasphemous to speak or publish opinions hostile to the Christian religion. or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. Everyone who publishes any blasphemous document is guilty of the [offence] of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of the [offence] of blasphemy.

Following this, the Law Commission, in a working paper in 1981 followed by a full report in 1985 recommended abolition of the offense. Here, it discussed in detail each of the points that he mentions. On the question of whether matter and manner may be distinguished for the purpose of the offense as Lord Scarman suggests, it said:

Frequently matter and manner cannot easily be disentangled and upon analysis it is often the message which repels as much as the language in which it is couched. That may well have been so in regard to much if not all of the material found to be blasphemous in reported cases. Matter which consists only of vulgar abuse or insults may thus on examination prove to be so insignificant in quantity and so insignificant as a social problem as scarcely to merit notice by the criminal law; and it seems to us that any wider categorization may indeed have adverse consequences for freedom of speech and communication.

Such restrictions would in particular have adverse consequences for what many would consider to be proper criticism of matters pertaining to religion and religious belief. Ridicule has for long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society, and in that context use of abuse or insults may well be a legitimate means of expressing a point of view upon the matter at issue…

On the question of extending a similar protection to other religions in a plural society (English common law only extended this protection to the Church of England) as Lord Scarman suggested and Noorani endorses, it noted:

The imposition of criminal penalties upon such abuse or insults becomes, in our view, peculiarly difficult to defend in the context of a “plural” or multi-racial, multi-religious society. Here one person’s incisive comment (or indeed seemingly innocent comment) may be another’s “blasphemy”, and to forbid use of the strongest language in relation, for example, to practices which some may rightly regard as not in the best interests of society as a whole would, it seems to us, be altogether unacceptable. But such would be the consequence if, as many of our commentators urged, a crime of blasphemy were to be extended to religions other than Christianity. Of course, such abuse or insults directed at the beliefs or practices of a particular religion may in substance amount to an attack upon adherents of that religion because of the views they hold. The line may be a fine one; but as we have emphasized above, if such attacks appear to be or become a real social problem, the appropriate response in our view is not to extend the law of blasphemy but rather to adapt the present offence penalizing the publication of matter likely to arouse hatred towards persons on account of their race so that it would penalize publication of matter likely to arouse hostility to others on account of their religious beliefs.

This is very similar to the Canadian delegate Terry Cornier’s view that ‘it is individuals who have rights and not religions’. Indeed, the Racial and Religious Hatred Act passed in 2006 incorporates this view. While making the publishing or distribution of offensive material with the intent to stir up religious hatred an offense, it explicitly declares that ‘Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytizing or urging adherents of a different religion or belief system to cease practicing their religion or belief system’ (section 29J). Clearly, there is nothing preposterous about it as Noorani suggests.

Quoting an article from The Economist regarding the Danish cartoon controversy, Noorani argues that ‘A living per­son caricatured thus would have a valid cause of action in law for libel. So would members of a religious community if the founder of the faith is thus libeled.’ Firstly, it was reported that the lower courts in Denmark had dismissed libel charges against Jyllands-Posten and the matter had been appealed in the Supreme Court. Secondly, unlike ordinary libel, neither the artistic nor other merits of the material nor a public good defense was available for blasphemous libel under English common law (Media Law by Sallie Spilsbury, 2000). Also, as the working paper noted, it was doubtful that dissemination could be prevented by application of criminal law as ‘special protection for the religious believer could lead to widespread flouting of legal sanctions by those wishing to focus attention upon its discriminatory character or to be seen as martyrs in the cause of freedom of expression’ and it ‘might well stimulate activities designed to display its unacceptable character and the impossibility of securing its proper enforcement’. Several previous episodes attested to this reality. William Foote, a journalist determined to bring down English blasphemy laws in the 19^th century published irreverent pieces on biblical characters in his paper Freethinker including pictures depicting the ‘Comic Life of Christ’ and an image of the Almighty’s posterior. His prosecution however resulted in the widespread dissemination of the material turning him into a cause célèbre (Blasphemy in the Christian World by David Nash, 2007). Again, few people had heard of the gay newspaper or of James Kirkup before the Lemon case was brought to court. Clandestine distribution of the material afterwards helped it reach a much wider audience than it would otherwise have. If the idea is to protect society by preventing dissemination, it appears unlikely to have a salutary effect.

Finally, based on this recommendation and others (including a report by a select committee of the House of Lords delineating the various options in 2002), the offenses of blasphemy and blasphemous libel under the common law of England and Wales were abolished by the Criminal Justice and Immigration Act, 2008. Lord Scarman’s view is therefore no longer good law.

Noorani also refers on several occasions to ‘some US talk on free speech’. I have no idea what that means but it suffices to note that he cites no American case to buttress his claim that religions require special protection. The US Supreme Court has never ruled on blasphemy but it did hold the New York state law on sacrilege which was defined in very similar terms to be unconstitutional in Joseph Burstyn Inc. v. Wilson 343 US 495 (1952) ((Blasphemy: Verbal offense against the sacred from Moses to Salman Rushdie by Leonard W. Levy, 1995). The majority opinion in that case held: "In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor..." Justice Frankfurter, in an eloquent concurrence was even more explicit. Though several states continue to retain blasphemy laws on their statutes, prosecution attempts ended in the early 1970s. It is virtually certain that any such censorship today would be struck down on First Amendment grounds (In the more recent National Endowment for the Arts v. Finley (1998), even Justices Scalia and Thomas did not dispute an artist's right to create indecent and disrespectful art).

Whatever one thinks of the resolution, some things are clear. Blasphemy in the West is headed to oblivion if not extinction – several countries have abolished it while others that retain the offence on their statute no longer enforce it. He says that ‘the issue is not freedom; it is self-indulgence with an eye on publicity’. With respect, this is a distinction without a difference. He further adds 'Such people falsely raised the banner of freedom and sailed with the anti-Muslim current in Europe'. I do not believe this either. Blasphemy laws in Europe have been shaped by centuries of struggle both within Christianity usually spearheaded by marginal sects such as Unitarians and Socinians against its dominant form as well as against Christianity led by the deists and others. From that standpoint, it is not difficult to see why preserving these hard earned freedoms is very much a matter of principle in these countries.

Free Speech News

1. Regulation of the Media: Interesting, and dare I say, worrying developments on the broadcasting media regulation front, but first the background: Some time ago, the government proposed a regulatory mechanism in the Broadcasting Services Regulation Bill, which was strongly opposed by all media bodies. This blog debated the issue here, here, here and here. As a response to the proposals, it was decided that a self-regulatory body called the News Broadcasters' Association will be set up to address the genuine grievances against the media, without having the fear of an overbearing state. The body was chaired by former Supreme Court judge and former Chairperson of the National Human Rights Commission Justice JS Verma. The NBA, in its first major order, fined India TV for “deceptively dubbing” an interview in Hindi, a language the interviewee does not know or speak. But before one could even celebrate the success of the self-regulatory mechanism, India TV has alleged bias and pulled out of the Association. I don't know the facts of the case in any detail, but if the NBA is to fail, the government will get a (possibly legitimate) excuse to intervene.

2. Combating Defamation of Religion: The UN Human Rights Committee has recently passed a resolution titled Combating Defamation of Religion, calling for steps to combat defamation of religion as a human rights issue. This is a worrying development on free speech, on which one may have a nuanced position on hate speech against groups, but it was clear that criticising any beliefs (including religious beliefs) was protected (except for non-content based law and order reasons).

India, which normally votes along with the Council's majority of developing nations, abstained in protest. India's Ambassador Gopinathan Achamkulangare said the resolution "inappropriately" linked religious criticism to racism. While one understands India's stand, why did it choose to abstain when it could have voted against the resolution? The reason is apparent when one looks at the voting figures:

The Resolution was adopted by a vote of 23 to 11, with 13 abstentions. The voting was as follows:
In favour: Angola, Azerbaijan, Bahrain, Bangladesh, Bolivia, Cameroon, China, Cuba, Djibouti, Egypt, Gabon, Indonesia, Jordan, Malaysia, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa;
Against: Canada, Chile, France, Germany, Italy, Netherlands, Slovakia, Slovenia, Switzerland, Ukraine, United Kingdom of Great Britain and Northern Ireland;
Abstaining: Argentina, Brazil, Bosnia and Herzegovina, Burkina Faso, Ghana, India, Japan, Madagascar, Mauritius, Mexico, Republic of Korea, Uruguay, Zambia.

Almost all the countries which voted against are first world countries, while those who abstained appear to be mostly developing countries who were uncomfortable with the Resolution but did not want to vote against their third-world allies. The resolution would have been defeated if most of the abstaining countries had voted against it. While one can see the arguments for realpolitik in international affairs, if my analysis is correct, it is rather sad that voting block loyalties decide the outcomes of human rights issues.

It is rare for Foreign Ministers in India to be accountable for how the country votes in international fora (except in high profile spaces like the WTO). India's record in joining international human rights enforcement mechanisms (various Protocols, the Rome Statute for the International Criminal Court etc.) is abysmal. Indian media largely fails to even report on international law issues, let alone ask uncomfortable questions about our decisions in these fora.

Screening “Smoking” Bans through a Constitutional Lens

I began a discussion with Madhav Khosla after reading his interesting take on Justice Kaul's "smoking" judgment. Unfortunately, owing to certain intervening events, I lost the thread and came back to articulating my stand on this issue only recently in this Mint editorial. I reproduce it below. I benefited greatly from discussions with Madhav, Arun and Tarunabh and thank them for their insights.

Given that "smoking" related cases are still pending before the courts, this issue is a burning one that refuses to be stubbed out in the near future. So do continue watching this space for more.


The law, smoke and mirrors

"I often wonder about the hours when a man sits alone, watching the smoke of a cigarette, thinking. I wonder what great things have come from such hours. When a man thinks, there is a spot of fire alive in his mind— and it is proper that he should have the burning point of a cigarette as his one expression.”

Ayn Rands’ sentiments mouthed through one of her characters in the classic Atlas Shrugged may have spurred some of us to light up. But ought that be reason enough to prohibit the publication of this book in India? Although current legal norms weigh against such censorship of the printing press, it certainly sanctions it when “text” migrates to “screen”. The law vests our Central Board of Film Certification (CBFC) with the discretion to axe any scene that glamourizes or encourages smoking, notwithstanding the fact that such scene may be integral to the plot or to the character. And notwithstanding the fact that the law does not prohibit smoking, unless committed within public precincts.

It is in this context that the Delhi high court’s recent denunciation of a regulation banning the depiction of on-screen smoking is a very welcome one for those of us who zealously guard our free speech rights against an overtly paternalistic state. Justice Sanjay Kishen Kaul rightly notes that such regulation violates the right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India.

However, the judgement is problematic in that it implicitly endorses CBFC’s right to interfere with artistic freedom, when the scene in question encourages smoking.

The case centres around a rule (promulgated under what is commonly referred to as the Cigarettes Act, 2003) which prohibited “characters” in films and television programmes from “displaying tobacco products or their use”. A writ petition challenging the constitutionality of this rule came up before justice Kaul. It is very difficult to take exception to justice Kaul’s staunch defence of the freedom of speech guaranteed under Article 19(1). However, his reasoning leaves much to be desired.

For one, he ducks the issue of whether or not certain exceptions articulated under different heads in Article 19(2) can save the governmental regulation in question, claiming that it is not germane to the controversy. Not only is it germane to the controversy, it is absolutely critical.

Article 19(2) permits the state to intrude upon the right to free speech when such intrusion is “reasonable” and is in the interest of any of the following: the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

It is difficult to see how the banning of on-screen smoking would fit within any of the above heads. Although one may qualify measures to discourage smoking as “public health” measures, this cannot tantamount to preserving “public order”.

As for “decency” and “morality”, the less said the better. The closest I ever came to witnessing such a nexus was when a student of mine categorically asserted that “civilized people do not smoke”.

Without dealing conclusively with whether or not the impugned ban fitted within any of the above heads, justice Kaul assumed that even if it did, it would still not amount to a “reasonable” restriction. Particularly since there already existed another guideline under the Cinematograph Act, 1952, that permitted CBFC to chop “glamourized” smoking scenes. In other words, an outright ban on “any” smoking scene was “unreasonable”, whereas a ban on only “glamourized” smoking scenes was perfectly constitutional. But this begs the question: Do such bans fall within the purview of the Article 19(2) categories at all? Unless they do so, one need not bother examining their reasonableness or otherwise.

Although the legality of the CBFC guidelines was not in issue, justice Kaul implicitly defends them. It is therefore imperative that film-makers take steps to challenge the constitutionality of these guidelines.

On a broader note, if our zealously paternalistic state is worried about the ill effects of smoking, it must take on the tobacco lobbies and ban smoking altogether (as to whether such a measure is likely to withstand a constitutional challenge is a moot issue). But until then, a film-maker must be offered the artistic freedom to depict the iconoclastic Hank Rearden lighting up his cancer stick in as swashbuckling a manner as possible. Even if this necessarily means more smoke-filled lungs and the encouragement of a habit described by James I as “loathsome to the eye, hateful to the nose, harmful to the brain...[and].. dangerous to the lungs...”

Panel discussion on 'Should media scrutinise religion?'

The FMP's panel discussion on 'Is religion beyond media's scrutiny?' brought forth interesting responses. Some speakers, notably Chandan Mitra and Maulana Wahiduddin Khan, took objection to the use of the word 'scrutiny' as in their view the word requires a high degree of competence on the part of journalists, who are generally unaware of the nuances of religion, which they want to scrutinise. But as Madhu Kishwar pointed out, are those claiming to be religiously outraged by contents in the media competent to understand, protest against and seek censorship of what, according to them, offends co-religionists?

The consensus was that they are not. But what appeared to divide the panelists, especially, Chandan Mitra and Madhu Kishwar was that the former wanted the continuance of S.295A IPC (India's blasphemy law) if only because the Indian society is volatile, whereas for the latter, a group of goondas claiming to represent any religion, cannot dictate what and how a law should be enforced and in what context. Chandan Mitra, however, suggested that journalists faced arrest because the Governments wanted to protect them from the wrath of the enraged public.

Madhu Kishwar referred to the 1986 law against indecent portrayal of women in the media as one instance of law coming to the aid of moral policing. She said when she opposed the law at the time of enactment, she was misunderstood, but the law appears to provide legitimacy to Hindu zealots.

Interestingly, all the three editors, who were recently arrested under Section 295A and later released were there - Basavaraj Swami, B.V.Seetharam and Ravinder Kumar - and they narrated their experiences. The question posed by the moderator of the discussion, Manoj Mitta, whether S.295A needs to be repealed or at least whittled down in view of its abuse seemed to have few takers. Manoj posed the question in the context of Britain repealing its blasphemy law last year, and Pakistan making its blasphemy provision draconian, by adding 295B and 295C to its Penal Code. The ingredients of Section 295A IPC(deliberate and malicious intention of outraging religious feelings) constitute a serious limitation on its use, though in practice, the authorities do not care to check whether these are satisfied, before it is invoked against anyone.

Siddharth Varadarajan, sharing his personal experience as a journalist, deplored the non-application of mind by the lower courts who invoke such legal provisions against anyone, be a journalist or a Union Minister (he was referring to registration of a case under S.153A IPC against Union Minister, Ms.Renuka Chowdhury, for referring to 'Talibanisation of Mangalore' in her reaction to the recent incidents there).

Justice J.S.Verma, one of the panelists, suggested there are legal remedies (civil) against wrong application of law, and an illegal prosecution can be challenged. Nandita Das, who shared her experiences with the Censor Board about her recent film, said we are becoming tolerant of intolerance, and we unwittingly give space to the so-called representatives of religions to speak on behalf of their co-religionists on the mainstream media. Even if there has been no conviction under S.295A, the process itself is the punishment, and this was a concern to all the panelists.

We, on this blog, have had an occasion to discuss the history and relevance of S.295A earlier. (This link takes you to the relevant posts on S.295A and this link takes you to the relevant High Court and Supreme Court judgments on S.295A IPC.)

Update: A detailed report on the event by Vivian Fernandes can be read on the FMP's site.

Blogging, Defamation and SLAPP cases

The recent refusal of the Supreme Court to come to the aid of D.Ajith, facing harassment from Shiv Sena which has filed a criminal complaint against him alleging criminal intimidation and outraging religious feelings, has stirred the blogger community. (See Bloggers can be nailed for views). The case comes close on the heels of the recent amendment of the I.T.Act, even though the FIR against Ajith was registered at Thane Police Station in August 2008, prior to the amendment.

According to the recent amendment of I.T.Act, as explained in this Manoj Mitta's story, an intermediary or a host on the internet is not criminally liable for the comments posted by others, if the intermediary allowed the alleged comment to be expressed unintentionally or failed to remove it from the site, after it is pointed out.

Ajith was the host of the community site which he created on Orcut against Shiv Sena, and the members of the community were free to express their views. Ajith argued that his was a community site, and the contents were meant only for members. The Supreme Court did not get into the merits of his contentions, before rejecting his petition praying quashing of the FIR against him. The High Court had granted him anticipatory bail. Bloggers united against the SC's refusal to come to Ajith's rescue.

In this post, Lawrence Liang is unhappy with the Chief Justice for declining relief to Ajith on the understanding that Shiv Sena alleged defamation against Ajith. The Sena did not allege criminal defamation, but alleged criminal intimidation and outraging religious feelings. One doesn't know whether Liang's conclusions will be different if he knew that the complaint pertained to S.506 and 295A of IPC. Still, Liang's explanation of the law on defamation, and his comparison of the CJI's view to that of Anatole France’s will be read with interest. His conclusion, in any case, is relevant:

"So rather than seeing this as an issue of the privilege of bloggers v. newspapers, it might make sense to locate the history of criminal defamation within the larger context of free speech as it affects different kinds of practitioners. And it might make sense for bloggers to also get a little organized in their responses to censorship of bloggers, because this is indeed one of those cases where an attack on one will eventually be an attack on all."

Panel discussion on 'Media freedom vs. religious fundamentalism'

The Foundation for Media Professionals, New Delhi, is organising a panel discussion on 'Is Religion beyond media scrutiny?' on March 2 from 11 a.m. to 1 p.m. (followed by lunch)at India International Centre (Auditorium), New Delhi. Speakers include Justice J.S.Verma, Chandan Mitra, Maulana Wahiduddin Khan, Madhu Kishwar, Nandita Das, and the arrested editors, B.V.Seetaram, Ravindra Kumar and Basavaraj Swami. The discussion is open to all, not just journalists.

The right to criticise religion

Does section 295A of the Indian Penal Code prohibit us from criticising religion? In an outrageous act, police arrested the editor and publisher of The Statesman for re-publishing an article by Johann Hari entitled 'Why should I respect these oppressive religions?' The article ostensibly hurt the sentiments of Muslims. The arrests only prove Hari's point that 'whenever a religious belief is criticised, its adherents say they're victims of prejudice.'

Section 295A requires 'deliberate and malicious intention of outraging the religious feelings'. How can we claim to adhere to a secular ethic without permitting genuine criticism of religion?

RTI - Judges' assets declaration case

The appeal filed by the Supreme Court against the of the decision of the Central Information Commission in the judges' assets declaration case has been discussed on this blog here and here. In this article in the Frontline, I have discussed some problems with the Supreme Court's position. Full texts of the decision, the appeal filed by the SC and the Written Submissions filed by the first Respondent in this case may interest our readers.

Free Speech v. Public Health

Last week, Tarunabh posted details of two new free speech orders that had been passed. In one of the orders, the judgment of which can be found here, the Delhi High Court struck down the ban on smoking in films. In an article in today's Indian Express, I examine this order through the lens of the conflict between free speech and public health. While I support the decision, particularly because Justice Kaul follows first principles rather than grounds of policy, I believe that one has to closely watch the future to witness how the field of public health law may develop in India. While in India, this area of law has hitherto not been regarded as an independent field of law, the increase in government regulations that aim to safeguard public health and thus infringe personal freedoms and impact human behaviour, could see courts following specific doctrinal approaches in public health cases.

Two free speech orders

The Delhi High Court has overturned the ban on depiction of smoking in films, and the Supreme Court has cleared the screening of 'Deshdrohi' in Maharashtra. The latter appears to be an order in an appeal from the Bombay High Court judgment overturning the ban on 'Deshdrohi' earlier this month in Kamal Khan v State of Maharashtra.

New Book on Free Speech by Rajeev Dhavan

Dr. Rajeev Dhavan, senior advocate and noted legal scholar, has released a new book on free speech in India titled "Publish and be Damned: Censorship and Intolerance in India" (Tulika Books). Only a few months ago, Dr. Dhavan had released a book on parliamentary debates on reservations that received a rather interesting set of posts on this blog (see here, here, here). The issue of free speech has been often discussed previously on this blog, for instance here, and here.
This new book promises to be an extremely provocative read on a subject of Indian public law that certainly merits far greater scholarly attention than it presently receives.
From the preface:
"... There is much in India's history that is embarrassing. There is also much that is exhilarating. And while there is much that speaks of love, understanding, mutual respect and the togetherness which holds India's vast and complicated reality in peace, there is also much that is divisive, cruel and inexplicable. History is both a discipline and a statement. In the hands of the politicized Hindu Right, this discipline has been transformed by a perverse politics which wants to transform India's communitarian generosity of spirit into communal ill-will.
Free speech has to be preserved in the overcrowded spaces of the media, on the streets and in the vast open spaces of our mind against the onslaught of corporatism, doubtful governance and invidious divisiveness. Freedom of the mind and the right to self-expression and argument can only survive if intolerance is met with tolerance, and tolerance is not seen as weakness."
Finally, it is important to note that the book is a collection of essays written between 2004 and 2007, and some of the material is drawn from articles previously published in journals such as JILI.
For those interested in the issue of free speech, Ronald Dworkin's writings on the Danish cartoon controversy and on the right to pornography will serve as excellent readings.

24/7 news and 'No time to Think'

One aspect of this week's atrocity in Mumbai is the questionable role of 24/7 news channels. This report claims that 'Vying for fresh material, they announced attacks where none had happened, backtracked shoddily, and some even claimed to have “interviewed” a terrorist. They harassed the hostages who had just escaped the gruelling experience, and plied their families with intrusive questions.' Smallest details of the security operation was telecast, with terrorists inside the hotels receiving this information till the cable connections were cut off. A 'similar situation in the West would have never seen TV cameras so close to and so revealing of action by security forces', claims this column.

These comments find echo in the insights of this very interesting new book No Time to Think: The Menace of Media Speed and the 24 Hour News Cycle by Feldman and Rosenberg, which 'focuses on the insidious and increasing portion of the news media that, due to the dangerously extreme speed at which it is produced, is only half thought out, half true, and lazily repeated anonymous sources interested in selling opinions and wild speculation as news.'

Should this incident force us to rethink 24/7 news channels? There might yet be a silver lining. After all, these channels did expose the sheer incompetence of the government and its agencies in responding to the situation. To quote another columnist, 'What the television coverage reveals most glaringly, however, is a complete lack of coordination and sense of purpose among the various organs of the state responsible for fighting terror. Television brilliantly captured the scramble and the confusion in the early hours of the crisis. The early pictures of harried officers briefing commandoes hurriedly donning their bullet-proof typified the confusion at the top and while it was great television it did not speak well of a state that should have its terror and media strategy in top gear.'

The jury may still be out, but we do need to evaluate the role of these channels more closely. A negative assessment, however, need not necessarily recommend stringent regulatory control of the sort recommended by the controversial Broadcasting Services Regulation Bill, previously discussed on this blog here, here and here. It might still be possible to explore less draconian legal or self-regulatory measures. For example, its provocative headline notwithstanding, this Outlook column recommends a limited discretion to security agencies to impose a 'delay' of three to six hours on the broadcast of anti-terror operations. This may be a sensible, and minimally infringing, restriction on free speech and will be sufficient to deal with at least some of the problems of 'live' reporting.

Free speech, multiple proceedings and chilling effects

The Supreme Court has dismissed an application by painter MF Hussain 'for immunity from prosecution in any court in the country except in Delhi'. Multiple proceedings against Shilpa Shetty, Khushboo and MF Hussain recently have seen the abuse of a procedural loophole to punish them for speech acts even before the crime can be established.

Here is an argument why this procedural loophole is unconstitutional:

1. All criminal acts that have 'speech' or 'expression' as constituting actus reus need justification under Article 19(2) as a 'reasonable' restriction.

2. This applies not only to substantive laws but also procedural laws.

3. Irrespective of the content of the speech, the possibility of multiple legal proceedings against a person in several parts of the country (that the current law on criminal jurisdiction allows) has serious 'chilling effects' even before the speech is made [Chilling Effect - 'a situation where speech or conduct is suppressed or limited by fear of penalization at the hands of an individual or group']. This is a restriction on Article 19(1).

4. The restriction is unreasonable because -
(a) no state interest is served by having the same act tried in several jurisdictions. Because no person can be convicted of the same act twice, even if two courts find him/her guilty, only one punishment will sustain. Therefore, in reality, the speech acts only amount to procedural harrassment.
(b) multiple proceedings waste precious judicial time. what 10 different courts can do, one court can do equally well. Public resources are also wasted because such multiple proceedings inevitably lead to a case-by-case Supreme Court intervention (like for Shilpa Shetty and Hussain) ordering transfers - a one time solution will save precious judicial time.
(c) all this, of course, besides the harrassment of the speaker EVEN BEFORE THE SPEECH IS FOUND TO BE CRIMINAL, and the chilling effects of such restriction.

Remedy:
An exception to be carved in the jurisdiction clauses of the Criminal Procedure Code for all crimes that are constituted by 'speech or expression'so that a criminal case in such crimes can be filed only at the defendant'splace of ordinary residence (if in India), or in Delhi (if outside India). This must be irrespective of the content of the speech.

A defence of the Broadcast Bill

Abhishek Singhvi, the national spokesperson of the Congress party, has a column in today's Hindustan Times where he seeks to defend the much criticized Broadcasting Bill. Posts about the bill on this blog (two of which can be accessed here and here) have tended to also be critical of particular aspects of the Bill.

Singhvi attempts to fend off criticism, but I for one remained unpersuaded, perhaps because less than half of the short column focuses on the actual criticisms of the Bill (some of which have been very pointed). Singhvi ends his column by asking readers to have more faith in the capacity of our mature democracy to strike the right balance. This, I thought, was a particularly unconvincing plea, considering how little of 'balance' one has seen in debates about public policy at the highest levels in recent times. I hope those of us who have more exposure to the intricacies of this area of the law will comment on the merits of Singhvi's defence.

Sardesai and Noorani on regulating media sting operations

Yesterday's HT features an editorial by Rajdeep Sardesai on this issue. Taking a somewhat different stance than other establishment figures in the media (see this previous post for details and links), Sardesai accepts that it is indeed upto the media to take primary responsibility. Here are extracts from his piece:

"Let’s be honest: the sting has become a legitimate weapon in a journalist’s armoury, the hidden camera and its sophisticated variants are now part of the media landscape. Every channel, large or small, has used the hidden camera, often to devastating effect. Let’s also be clear: every sting involves an element of deception. Then, whether you are posing as a defence dealer or an NGO, (or, as in the Khurana case, a schoolgirl), the sting necessarily involves luring someone through false pretence: as a result, the lines between an exposé and entrapment can often be very thin.

In the United States, the law and professional news organisations have stepped in to define the limits of the hidden camera. Take for example CNN’s policy guidelines on this. It clearly states, “The information or evidence to be gathered by a hidden camera should significantly contribute to a story that is of substantial value to society or of vital public interest.” Second, the expectation of illegal behaviour or wrongdoing should be strong (i.e. no fishing expedition). Third, before using a hidden camera a journalist must first try and exhaust alternatives for obtaining the interview or information. Fourth, hidden-camera shoots must have the prior approval of the senior news management. In some instances, permission of the federal authorities may also be required before the shoot. Moreover, simply because it is ‘good television’ is not a good reason to use the hidden camera. Bottomline: a hidden camera can be an important tool for solid, investigative journalism, but must be subject to well-laid out rules and procedures.

India is different. We have no law that governs sting operations, no internal guidelines in most news organisations, and an unclear right to privacy. At the same time, we are a notoriously opaque society, with an history of corruption and non-accountability. In such a system, a blanket ban on sting operations, as was hinted at by a Supreme Court judge, is no solution.

... ... ... The question is who will decide what is in the ‘public interest’: the government (as it wishes to do in the Broadcast Bill), the viewers (who continue to have a Jekyll-and-Hyde approach to the blurred images), the courts (who see themselves as custodians of morality) or the editors (who are well paid to ensure standards)? In the final analysis, notions of public interest must necessarily be subjective, exercised on a daily basis in a 24x7 news wheel by those who are responsible for channel content.

... .... ... Perhaps, the latest controversy provides news practitioners with a final opportunity to evolve a much-needed industry code of conduct before the government steps in. Self-regulation is only part of the answer: how would self-regulation ensure a uniform adherence to standards in an industry where everyone, from political fixers to real estate sharks, believe they can bring out a news channel? Unless there is an industry-prescribed broadcasting code of conduct with strict penal provisions for non-observance, news journalism is in danger of hurtling down a slippery slope of normlessness, with a resultant loss of credibility."

In a separate column, which was apparently published before the Khurana episode, A.G. Noorani argues that any move to ban sting operations altogether would be unconstitutional:

"In recent months, many people have attacked sting operations. They are called subterfuges or misrepresentations in legal parlance. Before any minister goes about drafting a law to suppress it or a judge decides to censure it, some reflection is required. For, the sting is protected by the Constitution. The fundamental right to freedom of speech and expression, guaranteed by Article 19(1)(a) includes, as the Supreme Court has held, press freedom and all that is necessary to ensure it; for example freedom of circulation. It also includes the right to know, the court has repeatedly ruled citing US and UK cases. The US Supreme Court has ruled that it includes a “right to gather information” and, further, that “without some protection for seeking out the news, freedom of the press could be eviscerated.” The press enjoys a preferential right to attend courts to report trials. “In a sense this validates the media claim of functioning as surrogates for the public.” That is the test. Article 19 (2) permits on the right only “reasonable restrictions” by law only on specified grounds. A blanket ban would be unconstitutional. No Indian court would ignore the formidable material in support of the sting. No Information and Broadcasting minister should either. As far back as 1885, W.T. Stead made news for the Pall Mall Gazette when he exposed prostitution by buying a 12-year-old girl. It led to a change in the law. No judge would send him to prison today as one did then."

After surveying attempts at regulating such operations in the U.S. and U.K., Noorani offers the following prescription:

"It is vain to expect any help from the Press Council. Leading figures in the media, print and electronic, should themselves draw up a code of conduct as a yardstick by which the public could judge their conduct. They might well set up a voluntary Court of Honour to monitor observance of their code."

The Khurana case and predictable views of the media establishment on regulation

Today's papers are full of editorials and op-eds on the Uma Khurana case. As Barkha Dutt fairly concedes in her column:

"The timing could not have been worse. On a day when television journalists were all set to wrestle the government to the ground over its imperious and inane Broadcasting Bill, along comes our own moment of ignominy and shame."

Both the Indian Express and the Hindustan Times have editorials where, quite predictably, the actions of the TV channel are criticised, but the Broadcast Bill is also condemned. Their solution: self regulation by the media. This is also the response that Barkha Dutt proposes:

"Before the government uses the exception to thrust its own set of motivated rules on us, let us in the industry admit that we need a code of conduct that we can all agree upon, and one that we draft ourselves. (Thanks, but no thanks, is what we need to tell the I&B Ministry).

It’s something I have long argued in favour of on these pages. We must be ready for the scrutiny we subject others to. Because when the reporter becomes the story, the news takes a backseat."

Dutt's closing sentences make the appropriate noises, but notice that she seems to rule out anyone but the media being involved in such regulation.

The only print column I have been able to locate so far that goes beyond this limited claim is a column in the Express by Amrita Shah, who is identified, rather tellingly, as a "commentator on media and society." This is her proposed response:

"A workable solution would need the active involvement of consumers of the media, for it is they who can arrest falling standards by choosing what to patronise. In a market-driven environment it will have to be the responsibility of the media and citizens both to create a society where the rule of law is less casually flouted."

I am surprised by the media's seeming blindness to the glaringly obvious problem with such arguments. Of late, the media has been trying to highlight problems within among other institutions, the judiciary, arguing that self-regulation is not a workable or defensible mechanism for the many woes that afflict that and other institutions in India. Yet, when it comes to setting its own house in order (and one didn't need the Khurana case to point to the dire need for this), the people who constitute the media establishment can only offer defensive explanations, talk of this being an 'exception', and propose the blandest of solutions: self-regulation.

One does not have to choose between the alternatives of the Broadcast Bill and self-regulation by the media: both appear unacceptable. It is upto the media to come up with more credible alternatives, if it wants to drum popular support against measures such as the Broadcast Bill. That some kind of regulation is in order is clear: as Amrita Shah points out, this is not an exception, and there are several such instances which have happened in the recent past. If the media doesn't budge, then measures such as the Broadcast Bill may be supported even by those who currently oppose it.

Revisiting issues blogged about earlier, and highlighting a new women's rights issue

The purpose of this brief post is to provide updates or alternative views on issues that were featured in previous blog posts, while pointing to an interesting analysis of a previously unexplored issue.

In two recent articles posted on India Together, Ammu Joseph discusses the salient features of the draft Broadcast Regulation Bill, while also providing a detailed critique of crucial provisions. The two articles, in the order they were published, can be accessed here and here.

Over the last month, we looked at aspects of the National Rural Employment Guarantee Act. While posts on our blog have generally focused on the positive aspects of the NREGA, here is a recent article in the EPW which highlights some worrying trends in the implementation of the Act in Orissa.

Lastly, here is a piece published once again in India Together that focuses on a governmental decision to ban migration of Indian women below the age of 30. The core argument that Rita Manchanda advances in this piece is as follows:

"The government recently imposed a ban on emigration for women under 30 going abroad to work as domestic help and caregivers. But this move will not stop women who want to migrate. Instead, it will drive them into clandestine migrant mobility regimes, putting them at greater risk to trafficking and exploitative treatment - the very concerns that have driven the ban."

The piece highlights the following statistics:

"Official decadal estimates state that 550,000 Indians migrate for work annually, of which 360,000 head to the Gulf, contributing to a migrant stock of three million there. Statistics of women migrating for work have shown a sharp increase, as evinced in figures from the major migrant producing state of Kerala. ... .... ... The earnings of 40-50,000 Indian nurses in the Gulf, 90 per cent of whom belong to Kerala, has contributed to pushing the state's per capita income from negative to 41 per cent above the national average."

Citing the work of feminist scholars Flavia Agnes and Ratna Kapur, Manchanda argues:

"Behind the ban is a patriarchal State asserting itself to 'protect' its 'helpless' and 'ignorant' young female citizens. Undeniably, the horror stories Minister for Women and Child Development Renuka Chowdhury heard in Kuwait - about confiscated passports, arbitrary changes in terms of contract, physical torture and sexual abuse - has prompted a renewed concern about the vulnerability of women migrants to exploitation. ... ... ...

Legal and administrative restrictions on migration or immigration in destination countries will only foster clandestine migration mobility regimes. Trans-national migration is integral to the global pattern of economics and trade. A UN study (2004) has noted the trend towards feminisation of international migration, with 49 per cent of all migrants being women and girls. Globalisation has fuelled the development of economic sectors with women-specific demands for cheap labour in certain sectors. Moreover, ageing populations in the developed countries are producing an expanding and sustainable demand for cheap domestic workers and care givers.

The emigration ban denies women their agency, equal status as citizens and the opportunity for economic and social empowerment. Moreover, it is too blunt a protective instrument and will further drive women's migration underground."

More views on 'the Baroda case'

Vir Sanghvi and Pratap Mehta weigh in on this issue, adopting contrasting approaches, and responding at least in part to the concerns raised by Jaitley that were highlighted in the previous post. Their ruminations provide interesting perspectives on what it means to be a liberal in India.

Jaitley on the legal boundaries of artistic expression in India

Today's Indian Express has an op-ed by Arun Jaitley who makes a provocative assertion about the limits of artistic liberty and expression in India. In the course of his column, Jaitley relies on an analysis of provisions of the Constitution as well as the Indian Penal Code, as well as the recent Danish cartoons controversy, to buttress his views. I found his analysis interesting, and though I will not be able to set out my own position on this at length in the near future (owing to overly ambitious professional obligations I have undertaken over the next few weeks), I hope some of the others will be able to chip in, especially those like Vikram who have considerable familiarity with free speech jurisprudence in India. Here are extracts from the piece:

"The Vadodara incident, in which an art exhibition at the MS University was disturbed by a group of protesters, escalated into a political controversy. The protesters strongly maintained that some of the art objects on display were intended to hurt the religious sentiments of a particular religious denomination. A group of artists, supported actively by political organisations and eulogised by a section of the media, strongly maintained that the protest against the two paintings amounted to moral policing and that it was a suppression of artistic freedom. The debate continued for a few days until the young artist who had sketched the paintings was released on bail.

My normal instincts are against censorship and disruption of art exhibitions. Anxious to study and analyse the real issues in this controversy, I made a conscious effort to investigate as to what the two impugned paintings were. My curiosity was further strengthened by the fact that media organisations that championed freedom of artistic expression, projected the issue in the abstract, without informing viewers and readers what the exact expression of artistic freedom in this case was. My conscious effort led me to discover that the protest was with regard to two paintings whose contents were being censored by the responsible section of the media. I am unsure whether this was deliberate or whether it was an act of responsible journalism to prevent people from viewing an obnoxious piece of art.

... ... The question for consideration in Indian society today is whether the right of an individual, including an artist, to express himself with freedom includes his right to commit blasphemy. The most prominent amongst the fundamental rights guaranteed under the Constitution is Article 19(1)(a), which guarantees to a citizen the freedom of speech and expression. This right is not absolute. It is subject to reasonable restrictions, which, amongst others, empower the state to make laws that can restrict the exercise of this right in the interest of public order, decency or morality. This case relates to decency or morality, but let’s ignore that for the moment. The responsibility of maintaining public order prohibits an individual from engaging in actions that may lead to public disorder. The Danish cartoons controversy has clearly revealed that the cartoons were not merely excesses of caricature, but were sufficient to create disorder. Although the cartoons did not have any sexually explicit material, even then they created public disorder globally. Religious sensitivities were ignored. In the present case, it is the level of tolerance of Indian society that protests were limited to one act of slogan shouting at the art exhibition in question. What is objectionable is not the mistaken romanticism of the young artist, but the insistence of responsible sections of the society that artistic freedom would extend to such acts of blasphemy. The mere dressing up of the head of a religious sect in Sirsa with a resemblance to a Sikh Guru is sufficient to create public disorder. Can it be reasonably believed that sexually explicit paintings of Jesus Christ or goddess Durga will have no effect on society?

... .... The proponents of the liberal view argue that artists should have the freedom to give vent to their expression even if the same is blasphemous or offensive to religion. Followers of religions must choose to look in the other direction. That is what normally happens. Except for marginal protests, India does not witness the kind of outrage we saw in the Danish cartoon case. There is no need for any protesting citizen to take the law into his hands. The machinery of law must be allowed to operate in such cases. At the same time, the perversion in the definition of secularism as being synonymous with majority-bashing must end. This perversion was visible in the Vadodara incident. The strategy was — don’t let the people know what the contents of the two paintings are. Carry on the debate on artistic freedom in the abstract and criticise the whole idea of moral policing. Society does not need moral policemen. It can do well without those who pass on blasphemy as a part of their artistic freedom." (Emphasis added).