Tuesday, September 18, 2012

Free Speech That Kills

It has been a rough week for the U.S., even minus the presidential election campaign where fact has yielded almost entirely to fantasy and faith. An ambassador killed in a country that it prides on having recently liberated from tyranny, embassies around the world besieged, and in the latest in a recurring pattern of attacks, military personnel killed by men in uniform under their training, in a country it is ostensibly mentoring through a difficult transition.

The immediate cause of the rage is a tawdry amateur film uploaded on the video sharing website Youtube which mocks the Prophet of Islam. Responsibility for the film was traced to a shady character in California, quoted as saying even as waves of anger spread, that “Islam is a cancer” that the world should be cured of.

The man behind this outrageous essay in cultural hatred was variously identified as an Israeli and a Jewish American real estate developer. His identity was finally revealed as Nakoula Basseley Nakoula, a U.S. national of the Coptic Christian faith, currently serving probation for financial fraud. He had produced the film in collaboration with a pornographic film director, who may have been innocent of its ultimate purpose. Members of the cast were certainly kept in the dark, seemingly taken in by the cover story that Nakoula spun about a medieval action film. Most of the spoken lines that caused offence, were dubbed over the original video soundtrack, and several scenes were later superimposed over a desert landscape shot separately, to simulate an Arabian setting.

The U.S. is of course, uniquely a country where flag-burning is considered a legitimate exercise of the free speech right granted by the first amendment to the constitution. There have been very few exercises of this right though, in the patriotic fervour that has followed the September 11 terrorist attacks on U.S. territory. The unspoken consensus to support a strategically inept president, drunk with a sense of military arrogance, only unravelled once the invasion of Iraq turned into a disaster.

Nakoula’s film and the violence that it provoked, soon fed into the toxic political competition of the election year. Republican challenger Mitt Romney pounced on a sharp denunciation of the contents of the film by President Barack Obama, to accuse his rival of wavering in the defence of American values. The blogosphere was soon suffused with suggestions of a “midnight knock” that had summoned Nakoula to an interrogation by the police.

What had indeed happened was little else than a routine inquiry by the police about a possible violation of Nakoula’s probation conditions. Despite his seriously provocative action, he was shortly afterwards set at liberty and went into hiding with his family.
Internet giant Google, which owns the Youtube site, declined a request from the U.S. government to restrict viewership of the offensive video. In countries like India and Indonesia though, the content was blocked to ensure conformity with domestic laws.

It would come as news to many that the first amendment has wide enough amplitude to protect a repugnant film made with intent to offend. That indeed was the message put out via Twitter by the U.S. embassy in Cairo, even as the furious crowds assembled outside: the U.S. government utterly condemned the offensive video, but was powerless to act against it. U.S. Secretary of State Hillary Clinton reiterated that point, adding that the film was no justification for violence.

There is an asymmetry in the manner in which the U.S. upholds the right to free speech, but denies those who are targets of hate speech the right to take offence. And once offended, protest is an inherent right granted under free speech doctrine. It could be said that the line is crossed when protests become violent, as with the arson attack on the U.S. consulate in Benghazi in Libya, which led to the death of ambassador Christopher Stevens and three other diplomatic staff.

Free speech zealots should know that in the highly fraught, unsettled circumstances of the Arab – and indeed, the larger Muslim world – even the most innocuous of acts could have unforeseen consequences. Indeed, the U.S. has a record in the lawless use of force in Iraq and Afghanistan, and in patronising six decades of violence and dispossession against the Palestinians, that protests when they erupt, are unlikely to stick to the path of non-violence.

“They hate us for our freedoms”, said George W. Bush as he called his people to war in the aftermath of September 11. That indeed may be true, though not in the manner that Bush intended. Noam Chomsky had observed when the U.S. in 2001 launched its global war on terror, that the code-name chosen, “Operation Enduring Freedom”, was entirely appropriate, though in a deeply ironical sense. Much of the global turmoil that the operation was seeking to combat was indeed the consequence of the U.S.-style freedom  that the rest of the world had endured far too long.

There were other observers who spoke of the deeply vulnerable state of the U.S. economy as a key factor behind the rush to war. Two decades of relentless borrowing from the rest of the world had weakened the status of the U.S. dollar and control over petroleum – the world’s most widely traded commodity, denominated almost exclusively in U.S. dollars – was vital to sustaining its global hegemony.

The last year of the Bush presidency was the year of the unravelling, a process that has continued through the Obama tenure, though the pace has been slowed by the kinder and gentler image he has cultivated. But as the unravelling continues, global tensions and resentments will tend increasingly to focus on nation that was described by former U.S. Secretary of State Madeleine Albright as “indispensable”. As people make their voices heard and demand a new political and economic order, the principal prop of the old order will bear a large part of the stress of transition. That perhaps, is in the order of things.

Sunday, September 16, 2012

Cartoons as Sedition

“Sedition” is a legal construct from less enlightened times, when the sovereign power claimed a divine sanction and subjects were expected to live in awe and fear. So what is republican India doing, in its seventh decade, in bringing a charge of sedition against a self-publishing cartoonist with a propensity for scatology and lurid imagery? A convulsive attack of folly that the agencies of the Indian state have been all too prone to? Or an overt signal that the space for dissent is shrinking?

Kanpur-based Aseem Trivedi, a volunteer for the Anna Hazare led civil society coalition, India Against Corruption (IAC), is by all accounts, possessed of the same obsessive self-righteousness that is the hallmark of the wider movement. Yet his cartoons would have languished in well-deserved obscurity had not the website hosting them been shut down by the Maharashtra police in December last year. 

Once invested with the halo of martyrdom in the cause of free speech, Trivedi’s craft acquired rather grandiose dimensions in the public imagination, well beyond anything warranted by intrinsic merit. And then came a succession of missteps by the police, which converted the criminal cases against him into a test case of India’s commitment to the free speech right.

Within just two days of Trivedi’s arrest, the Maharashtra Home Minister disavowed it as entirely futile, and the police put out word that with investigations completed, there was no reason to prolong his detention. The rather swift conclusion of investigations brought the police no credit. Neither did it afford a pathway out of self-inflicted embarrassment. Trivedi’s refusal to seek bail meant that the court had no option, short of his unconditional discharge, than the extension of his remand.

Trivedi’s case has excited a degree of public outrage, in part because IAC has thrown its formidable campaign capacity behind him. But he is by no means the only journalist currently facing sedition charges. In the insurgency affected districts of Orissa alone, four cases of sedition have been registered against journalists in the last few years, mostly to clamp down on public-spirited reporting that exposes serious abuses and deficiencies in local administration.

In June 2008, the commissioner of police in Ahmedabad brought charges of sedition and criminal conspiracy against two journalists and the local edition of the Times of India, after the newspaper carried a series of reports about his less than distinguished service record. Though granted bail and not imprisoned like their counterparts in Orissa, the journalists were only absolved of all charges in April this year.

The established judicial precedent in the application of the relevant law -- section 124A of the Indian Penal Code -- is that it would be violative of the fundamental right to free speech, unless invoked to deal with an imminent threat of violence. This judgment by the Supreme Court dates back to 1962 and should have by now become part of the commonsense of all police personnel and judicial authorities. That it has not, suggests a degree of incoherence within the judicial apparatus, perhaps even a deliberate design to silence critical voices through the threat of criminal prosecution.

Trivedi also faces charges under the Prevention of Insults to National Honour Act, a rarely invoked law passed in 1971, and section 66A of the Information Technology act, which pertains to the transmission of data or images through electronic means with deliberate intent to offend. Few judicial precedents exist in the interpretations of these statutes, but clearly, the test of intent would be key in any reasonable view. Was it the cartoonist’s intent to cause offence and insult, or to offer legitimate criticism of the state of governance?

Trivedi’s cartoons betray a rather unique sensibility. One of them depicts the Indian parliament building as a cesspool collecting the sewage from polling booths, depicted as toilets. Another represents the Ashoka pillar, the officially consecrated national emblem, with bloody-jawed wolves atop in place of the three lions, and the slogan “corruption shall triumph” replacing “truth will triumph” at the base. Still another depicts Mumbai’s 26/11 mass killer Ajmal Kasab as a canine, urinating over a copy of the Indian constitution.

Trivedi is obviously a deeply anguished and embittered person and his notions of taste would seem questionable to many. But bad taste is not a criminal offence. A clumsy police force and an obtuse judiciary though, have combined to propel bad taste out of an obscure corner of the virtual world, into the very centre of the arena where the struggle for basic rights is waged.

A doctrine of judicial "postponement" and the demands of open justice

http://www.epw.in/web-exclusives/judicial-doctrine-postponement-and-demands-open-justice.htmlAmid much scepticism, the Supreme Court in February took on the ambitious agenda of laying down norms for media reporting on matters under active judicial consideration. It heard a variety of opinions, including a serious suggestion from Additional Solicitor-General Indira Jaising, that all proceedings be televised to ensure that instances of misreporting would not go unnoticed. Others less indulgent towards the judiciary’s ambitions, such as senior counsel Shanti Bhushan advised Chief Justice S.H. Kapadia, to simply dissolve the five-judge bench that had initiated the hearings since it was engaged in a futile pursuit. There were some who expressed partial endorsement , but aside from directly aggrieved parties, few who thought that the Supreme Court could arrive at a reasonable set of rules, consistent with the constitutional guarantees on free speech. There was no real sympathy for the media here. Just the realisation that that correcting one form of excess with another, would be corrosive of basic democratic norms.
Perhaps chastened by these abundant expressions of doubt , the Supreme Court on September 11 arrived at a final determination that was modest in relation to its initial agenda. Far from a comprehensive set of guidelines on media reporting, the judgment authored by Chief Justice Kapadia chose to propound merely one solitary new principle: of a court-ordained “postponement” of reporting, when a credible case could be made that it would serve the cause of justice.
“Postponement” is a word that does not have the same numbing impact as “prohibition”. But despite the effort to soften the blow, a “postponement” of reporting seemed suspiciously to sound like a measure of “prior restraint” on the right to free speech. In free speech doctrine, “prior restraint” is held to be a vice with no redeeming quality. Individuals in a democracy are expected to have the awareness and sense of responsibility to determine what can be said and what not. Corrections could be applied post facto in any case where speech is held to be offensive or violative of another’s rights. To make a law allowing prior restraint is to cast mature citizens in the role of infants and to appropriate to the government the power of guardianship.
Unsurprisingly, a large part of the Supreme Court judgment is taken up with a consideration of the numerous judicial precedents which have sanctioned the imposition of prior restraints on speech, in particular, narrowly defined cases. In defiance of ordinary understanding, it argues that prior restraint is permitted, though only in certain “exceptional” circumstances even under the absolutist doctrine of press freedom represented by the first amendment to the U.S. constitution. The authority cited here is the 1931 judgment of the U.S. Supreme Court in Near versus Minnesota, which is remembered in judicial history as a law which firmly rules out prior restraint except, hypothetically, in a limited number of contingencies where it may serve a broader public purpose: war, gross obscenity, the imminent threat of violence against innocent citizens, and a threat to the foundations of legitimate government. Curiously though, the Supreme Court while taking note of these purely incidental and inconsequential observations in a judicial ruling that argues the case against prior restraint, completely ignores the more authoritative ruling in the 1971 case of New York Times versus the United States which prepared the ground for the publication of the Pentagon papers and contributed to a rapid shift in the climate of public consent for the Viet Nam war. Several of the analogies and illustrations cited in the judgment, moreover, would seem more relevant to situations of trial by jury, rather than the “bench trial” system prevalent in India.
Despite finding what it deems to be sanctions in the law for this manner of action – which in less polite terms would be called censorship – the Supreme Court is anxious to establish that its propositions do not yet constitute prior restraint. Rather, they are a part of the necessary balance that has to be established between the various constitutional values, none of which is absolute. The right to free speech, though fundamental, cannot be granted the kind of wide amplitude that would pose a threat to other values. The Supreme Court provides a restatement of the current understanding on article 19 of the Constitution, reading the right to information -- which is not explicitly mentioned – into the intent of the text: “Freedom of expression ... has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock ... It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know”.
The value of this restatement is at once qualified by the remark that “free speech (would have), in appropriate cases, .. to correlate with fair trial. It also follows that in appropriate case(s) one right [say freedom of expression] may have to yield to the other right like right to a fair trial”. (All phrases within square brackets from the original.)  “Trial by newspaper” the court holds, falls within “the category of acts which interferes with the course of justice or due administration of justice”. Articles 129 and 215 of the Constitution, which give the Supreme Court and all High Courts the status of “courts of record” and endow them with authority to punish for contempt, also confer the power to “prevent such acts which interfere, impede or pervert (the) administration of justice”. The “presumption of innocence” is held to be a fundamental right. And if “in a given case the appropriate Court finds infringement of such presumption by excessive prejudicial publicity by the newspapers, then under inherent powers, the Courts of Record suo motu or on being approached or on report being filed before it by subordinate court can under its inherent powers under Article 129 or Article 215 pass orders of postponement of publication for a limited period”.
This order of postponement is not to be read as a censorship or as prior restraint. Rather, common law provides most courts with the authority to use contempt law to formulate various “neutralising” devices, “such as postponement of the trial, re-trials, change of venue and in appropriate cases even to grant acquittals in cases of excessive media prejudicial publicity”. The power of postponement is to be read as precisely this manner of “a neutralising device”, or “as a preventive measure to protect the press from getting prosecuted for contempt and also to prevent administration of justice from getting perverted or prejudiced.”
Beyond the novelty of the doctrine of “postponement”, this judgment adds little to the existing position in law, under which courts can order particular trial proceedings to be held in camera if necessary for ensuring fair procedure, or defer the publication of witness testimony when material harm could ensue to the individual concerned. This position was upheld by the Supreme Court as far back as 1966 in the case of Naresh Shridhar Mirajkar versus State of Maharashtra. The Mirajkar case was heard by a bench of nine judges, of whom eight concurred in three separate judgments that the temporary ban on the publishing of testimony of a witness summoned by a weekly magazine in a defamation case, was not violative of article 19 of the Constitution. Only Justice M. HIdayatullah dissented, arguing that the imperatives of justice demanded an “open trial” and free and unfettered access to the media.
What the recent Supreme Court judgment does is to make the exception a general principle to which any litigant could seek recourse. The applicant who seeks an order of postponement would of course have to make a clear case that his interests would be prejudiced by unfettered media reporting and create sufficient grounds for “displacing” the “presumption of open justice”. An order of postponement moreover, would not be given prior to the fact. Rather, the test would be “that the (actual and not planned) publication must create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial”. Shortly afterwards, the point is further underlined: “Such postponement orders operate on actual publication. Such orders direct postponement of the publication for a limited period”.
The effort to write a rulebook for the media originated in February, when Chief Justice Kapadia was alerted to a news report that revealed an ostensibly privileged communication between two contesting parties. The issue involved an instrument floated by the real-estate and finance conglomerate. Sahara’s counsel in a letter to the market regulator, the Securities and Exchange Board of India (SEBI), revealed “without prejudice” that it held assets in real estate and other sectors to secure all deposits mobilised under the instrument. Since the information was conveyed “without prejudice” to the ultimate outcome of the hearings, it could not be deemed to have compromised Sahara’s case in any way. If anything, it was a source of reassurance for a few hundred thousand investors in the Sahara instrument, which was unlike anything seen in the Indian markets and did not have regulatory sanction.
For the Supreme Court to have picked this case as the ground for decreeing a wide-ranging set of guidelines for the media was curious. Even more breathtaking was its seeming determination to take on an expansive agenda, by sweeping up all proximate complaints received about media practice and assembling them into a common docket. In bringing back into focus matters -- of which some had been settled by apology, retraction and administrative correction by erring media organisations -- the Supreme Court seemed clearly to be signalling that ex post remedies are of little use when media freedom becomes a potential hazard to the administration of justice.
After all its labours though, the Supreme Court has emerged with another form of ex post remedy, though one the judiciary will retain the final authority to administer. This could well be a superfluous power, or one that could lend itself to considerable misuse. In restating the need for balancing the right to free speech with other constitutional values, the Supreme Court is clear, under article 141 of the Constitution, that it is laying down law for the entire country. This of course presumes a degree of coherence within the judicial system and consistency in the interpretation of the findings of the highest judicial bench.
Because the ruling of the Supreme Court coincided with a wave of public outrage over the arrest of a young cartoonist and anti-corruption campaigner on sedition charges, a readily available test case is available on the degree to which article 141 is honoured. The sedition clause – article 124A of the Indian Penal Code -- was held ultra vires of the fundamental rights in a 1958 ruling by the Allahabad High Court. Four years later, the Supreme Court reinstated it, ruling in the case of Kedar Nath Singh versus State of Bihar that it is not to be lightly used and would ordinarily be contrary to the fundamental rights, unless used to deal with an imminent threat of violence.
Despite this very clear decision, which should under article 141 be applicable to the entire country, prosecution under the sedition clause has been multiplying and courts have been acting in ignorance or wilful disregard of the law. There is a dimension of coherence and consistency that has gone missing within the judicial apparatus. Viewed from this perspective, the doctrine of “postponement” propounded by the Supreme Court with numerous safeguards against possible abuse, is not quite immune to arbitrary interpretation. Indeed, it could well become an instrument in the hands of wealthy and influential litigants, to subvert the course of open justice.

India Bans Bulk SMS, Blocks Websites as Rumours Spread Ethnic Panic

On August 15, as India celebrated the sixty-five year anniversary of its independence, a mass exodus was underway from the southern Indian city of Bangalore, which has in recent years been better known worldwide as a hub of industrial strength, propelling India’s aggressive debut on the world stage as a country with economic clout.
The following day, despite anxious efforts by government officials and security agencies to allay fears, a similar mass migration occurred from the cities of Pune, Hyderabad  and Chennai.
Those who fled booked themselves for the most part on trains headed to Guwahati , the economic hub of the state of Assam, which is the largest among the eight states collectively known as “north-eastern India”. The rush of bookings compelled the Indian Railways to run a number of special trains from each of these cities, or to increase the passenger capacity of scheduled services.
The mass panic was caused by SMS messages warning people of retaliation for sectarian violence that began in Assam late in July. Four districts of Assam were gutted by mass violence that still continues, between people of the Muslim faith – deemed to be illegal immigrants -- and the Bodo tribal community which claims original ownership of the land. Though under-reported in the mass media, there are worries that the violence in Assam, may have caused India’s largest internal displacement in all time.
On August 17, the Indian government ordered a ban on SMS messages directed to more than five recipients. It also issued notices to all internet service providers (ISPs) to block a number of websites held guilty of hosting highly inflammatory content on the events in Assam.
Just a few days before, on August 11, an organisation claiming to be a cultural and educational body had organised a protest in the western Indian metropolis of Mumbai, against the sectarian violence in Assam and reported atrocities inflicted on Rohingya Muslims in Myanmar.
Following a number of speeches by the principal organisers, some of which denounced the mass media for their supposed indifference to the violence inflicted on a religious community in Assam and Myanmar, the crowd went on a rampage, attacking journalists who had gathered to cover the event and burning three outdoor-broadcasting vans belonging to well-known news channels.
A rigorous study by a well-respected scholar has shown that the sense of grievance over atrocities on a particular religious community, may have been stoked by manipulated images circulated either in gross ignorance or with deliberate intent to foment violence.
In subsequent remarks to the press, a top official of the Mumbai police has said that the violence may have been pre-planned and was possibly linked to one of several underworld factions that operate in the city.
The Mumbai police investigation into the violence has failed to carry much credibility and political parties committed to an anti-immigrant programme have subsequently mobilised to demand accountability at the highest political level of the state administration, for the violence of August 11.
The SMS ban has been strongly resisted by India’s mobile phone service companies, which fear a sharp drop in their revenue for the month.
Little clarity is available on the websites that have been blocked, with the numbers involved estimated to probably number 250.
The Indian government has also served a strong demarche on Pakistan, which it holds responsible for most of the website content that has inflamed mass sentiments and led to the panic.
Pakistan has responded with a request for concrete evidence before it acts against those alleged to have planted the rumours.
Police in Bangalore city meanwhile, announced the arrest of four individuals for spreading the rumours that led to ethnic panic. Though most media have refrained from naming them, some reports have indicated that they belong to the Muslim faith.
Early reports suggested that the arrested individuals may have responded emotionally to disturbing images and stories they received over internet and mobile phone, about the suffering of co-religionists in Assam and Myanmar. No intent or motive to create ethnic panic was suggested in these early reports.
 Soon afterwards, there were media reports which hinted at an organised attempt to stir up ethnic strife.
Certain newspapers have suggested the involvement of right-wing bodies that claim to be acting on behalf of the majority Hindu community in the recent events.
On August 18, a mass e-mail from a recognised site of the right-wing organisation, the Vishwa Hindu Parishad, was widely circulated, suggesting that Muslim youth in the city of Hyderabad in Andhra Pradesh state in southern India, had participated in an observance the previous day of Pakistan’s independence day and had raised the flag of the enemy country in a prominent city square.
Journalistic investigations revealed that the pictures circulated were indeed authentic, but taken in Hyderabad city in Sindh province of Pakistan.
With authentic information in short supply, the public is forced to choose between different versions on the basis of prior assumptions and prejudices. The crackdown on means of information transmission in the context, is not seen to serve a useful purpose. Rather, it may only have created even more favourable conditions for rumour and hearsay to flourish.