Wednesday, February 27, 2013

Quashing Dissent: Where National Security and Media Commerce Converge

Economic and Political Weekly, Web Exclusives, March 2 2013

Between February 14 and 15, the Department of Telecommunications (DoT) in the Government of India issued five separate orders to internet service providers (ISPs), blocking access to no fewer than 164 URLs or web addresses where specific content is hosted. All five were issued in seemingly unquestioning and unreserved compliance with ex parte orders emanating from courts. No reasons were given, though as things transpired, these were not very difficult to figure out.
Of the five orders, three were issued with clear intent to clamp down on protests in Kashmir after the February 9 execution of one-time militant Mohammad Afzal Guru.  Physical movement in all of Kashmir had been blocked by a pre-emptive curfew imposed early that morning. As news of the execution filtered through, local news channels and newspapers were told to suspend operations. And though the internet remained available through broadband, the more widely used modes of access in the valley -- mobile telephones and wireless datacards – were disabled. The information lockdown persisted five days in the case of newspapers and an entire week for internet users. For local TV news channels, it still continues. But through the pores in this blanket of censorship, the people of Kashmir were still managing to make their anger and bitterness heard. The DoT directive, calling specifically for the shutting down of a number of pages on the social networking site “Facebook” was obviously about shutting that source of dissent.
An information blockade imposed on a region where rights to life and liberty have been in suspension might seem a lesser injustice, though it is part of the same apparatus of repression, that particularly targets any possibility that an occupied people may conduct a social dialogue that reaches beyond immediate constraints of location and space. Yet for all that, there was nothing really unusual about the effort to tighten the information blockade on Kashmir, a region that has long been in a state of exception in the Indian political map, where even the pretence of guaranteed rights and entitlements does not apply. Indeed, a similar blockade on mobile telephone services had been imposed in the valley just a fortnight prior, while the rest of India was celebrating the anniversary of its republican constitution.
A second category of website blocks ordered in DoT’s most recent round of sweeping censorship, applied against the mimicking or parodying of important public institutions, such as the Bombay High Court. Few dissenting voices were raised here. If anything, there may have been some reservations about the recourse to heavy-handed censorship, where the task of sifting between the authentic and the fake, might well have been left to the judgment of the internet user , worries that the DoT action may have cast the rare visitor to these sites as an infant in need of the guiding hand of a nanny state.
What really raised eyebrows and triggered a war of attrition on the internet was the third category of order issued by the DoT, blocking seventy-three specific web addresses ranging over a total of fifty websites. The formal order addressed to all ISPs, began with a peremptory, “it has been decided”, much like an edict issued from a sovereign that is beyond challenge. After listing the sites to be censored, it entered a plea for secrecy, uncharacteristic for a sovereign acting with absolute authority. Letters of compliance to be filed by all those at the receiving end of the edict were not to mention the identity of the blocked URLs.
If the intent of that caution was to conceal the identity of the guiding hand behind this extraordinary measure of information denial, it did not go far. The common element in the seventy-three web addresses that were blocked was soon discovered to be the Indian Institute of Planning and Management (IIPM), an establishment with a pervasive presence in the media, despite its uncertain provenance and rather anomalous status within the landscape of higher education, where it claims to belong. Indeed, the IIPM advertising budget, the envy of most other institutions in the same category, wins it a high degree of exemption from scrutiny in the mainstream media. No such privilege though, is granted within the alternate discourse of the social media. Indeed, that is where the problem was clearly seen to lie.
Cryptic in its content and opaque in terms of its legal basis, the DoT order was traced by the small but vigorous community of free speech advocates on the internet, to emanate from an order by a court in the city of Gwalior in Madhya Pradesh. For the most part, it applied to blogs and independent initiatives by consumer groups and civil society actors to promote a dialogue on issues of public concern: such as the quality of service offered by various civic and commercial institutions. The IIPM, unsurprisingly for an institution with a high media profile, had come in for some searching scrutiny and been found wanting: several of the postings on these sites, drawing on first-hand experiences of the services (or lack of it) that it offered, were trenchant in tone and content.
It emerged soon afterwards that the Gwalior court had issued its order under provisions of the Indian Penal Code (IPC, section 499) dealing with the offence of defamation and the Information Technology Act (IT Act, section 69) which enabled government authorities to demand the blocking of certain sites by ISPs and intermediaries such as Google and Facebook. Evidence that the court had applied the tests of intent, accuracy and public interest that are the preliminaries mandated by law before sanctions are imposed for defamation, was conspicuously lacking. And what literally leapt out in the DoT edict was the very first URL on the list, which belonged to a public institution, the University Grants Commission (UGC). In a notice issued in July 2012, ostensibly in compliance with a directive issued by the Delhi High Court in ongoing litigation, the UGC had recorded its finding that the IIPM was not a university under applicable law. It was in other words, not empowered to grant degrees in business management or any other discipline of study.
In holding the UGC liable for defamation, the Gwalior court obviously omitted any serious engagement, either with the history of litigation involving the IIPM, or with the law. Section 499 of the IPC is explicit about certain exceptions where in circumstances to be judged by the courts, the offence of defamation would not apply: these include, the "imputation of truth which public good requires to be made or mentioned," the "public conduct of public servants" and the "conduct of any person touching any public question". Clearly, any assessment that the UGC may have made about the academic credentials of the IIPM, when communicated to the public, would potentially fall within the scope of these exceptions. That the Gwalior court overlooked these aspects of the law points towards an egregious omission.
Internet activists were quick to wreak vengeance. On Friday 16, the website of the IIPM was hacked and put out of service for a limited period of time. And under pressure from a growing chorus of outrage, the owner and executive head of the institution, Arindam Chaudhuri, took to the social network to explain his actions. The court order applied only to website content that was defamatory in an explicit sense, he pleaded. Satirical sites may have been included in an over-broad sweep of content pertaining to the IIPM, but remedies would be quickly instituted once a closer examination was made. As for the UGC and one other public institution in the education sector – the All India Council for Technical Education (AICTE) – Chaudhuri was scathing in his assessment: “I should say UGC and AICTE are organisations full of bribe-seeking corrupt officials where, even at the top, they have a track record of being caught red-handed and being jailed. ... I suspect that UGC – at the behest of some of our petty competitors with dirty past records of filth and cheating, and public notices against them – had been deliberately spreading misleading information about IIPM to hurt its business interests and had even gone to the extent of falsely calling IIPM a fake university”.
There is much that is specious in the IIPM explanation and a great deal that the judiciary has to explain about its manifestly perverse order. Within days of the DoT implementing its blocking order, the Department of Information Technology (DIT) – a partner department under the Ministry of Communications – resolved on appealing it at the appropriate judicial forum. That may well have been too little too late. As the senior advocate and legal scholar Rajeev Dhavan has pointed out, in all such matters “the real mischief takes place right at the beginning … when injunctions are freely granted to prevent the publication or dissemination of an existing or proposed publication”.
The IIPM is a practised hand in censorship through legal injunction. In June 2011, it filed suit against Caravan, a monthly magazine of political and cultural commentary, for the sum of Rs 50 crore (INR 500 million), after the magazine had in its February 2011 issue, featured an article titled “Sweet Smell of Success: How Arindam Chaudhuri Made a Fortune Off the Aspirations — and Insecurities — of India’s Middle Classes”. The article was a substantive pre-publication excerpt from a book by U.S.-based journalist Siddhartha Deb, due for publication in July 2011. The IIPM lawsuit named the author, the publisher Penguin Books (India) and the internet search portal Google (India) as respondents, other than Caravan, accusing them of “grave harrassment and injury”. The lawsuit was filed not in Delhi, where both the IIPM and Caravan are based, but in Silchar town in the north-eastern state of Assam. IIPM was the second petitioner, the first being a Silchar businessman known to be associated with the institute as a recruiter.
At the first hearing of the case, the civil court in Silchar granted the IIPM a preliminary injunction, enjoining Caravan to remove the impugned article from its website. This decree was issued ex parte, without any pre-hearing notice to the magazine. The article was since taken off the Caravan magazine website, though it has been retained in the Internet Archive. In the most recent round of court-ordained censorship, the magazine’s July 2011 announcement that it intended to fight the injunction was blocked, but then republished under a different URL.
In October 1972, India’s Supreme Court heard a case brought by Bennett Coleman and Company Ltd (BCCL), publishers of the Times of India – and a number of other large newspaper enterprises – challenging a newsprint rationing order introduced to deal with a situation of acute scarcity. The official plea entered on behalf of the rationing was that the larger newspaper groups would, if allowed unfettered access to the market, buy up all the supplies available, depriving smaller players – and with this, large sections of the Indian population – of the means to speak and be informed. The judgment in the case of Bennett Coleman and Co Ltd v Union of India is one of historic significance, since it remains the most authoritative statement yet, on how the constitutional guarantees of free speech devolve into the more narrow construct of media freedom. Yet this is a judgment that remains strangely inconclusive, since in addressing the issue of the free speech right, the majority opinion of the Court seemed to oscillate rather indecisively, between a notion of free speech as a privilege enjoyed by the few, and a broader conception of the unreserved exercise of the right by all.
In deciding the case, Justice A.N. Ray spoke for the majority and observed that the “individual rights of freedom of speech and expression of editors, directors and shareholders, are all expressed through their newspapers”.  But then a few pages on, the majority opinion effectively widened the ambit of the right: “It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express”.
Having elevated media freedom to a higher plane and rendered it into an entitlement enjoyed by all citizens, the majority in the Bennett Coleman case had little difficulty striking down newsprint rationing as a violation of article 19 guarantees on free speech. The rest of the majority judgment in the matter clung very closely to the liberal orthodoxy on the right to free speech: that governmental regulation is an evil more invidious than private monopolies. When it looked at the prospect of “monopolistic combination” in the press, it was only to rule it out. And even if the likelihood did arise, newsprint allocation could not be a feasible “measure to combat monopolies”.
Of special significance in this context is the lone dissenting judgment delivered from a bench of five judges, by Justice K.K. Mathew, who explicitly conceded the possibility of a conflict between the public interest and the profit motivations of the press. Using a “theory of the freedom of speech” that essentially viewed it in terms of twin entitlements -- to speak and be informed – Justice Mathew observed that “the distribution of newsprint for maintenance of (newspaper) circulation at its highest possible level .. (would).. only advance and enrich that freedom”. As a constitutional principle, “freedom of the press” was “no higher than the freedom of speech of a citizen”. The problem at hand was one of bringing “all ideas into the market (to) make the freedom of speech a live one having its roots in reality”. In pursuit of this ideal, it was necessary as a first step, to recognise “that the right of expression is somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers”.
Freedom of expression in other words, also involved the right of access to media space. And this requirement would be met only through the “creation of new opportunities for expression or greater opportunities to small and medium dailies to reach a position of equality with the big ones”. This was as important, in Justice Mathew’s judgment, “as the right to express ideas without fear of governmental restraint”. What was required was an interpretation of the free speech right which recognised that “restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups”.
For all the appearances of growth and diversification that it presents, there is increasing worry that the Indian media with its advertisement-driven revenue model, is becoming an echo chamber where those with economic clout and purchasing power talk among themselves, leaving out the voices of the vast majority. Citizens who happen to inhabit the zones of exception, such as Kashmir and he north-east, are excluded from participation by virtue of their infirm commitment to what is by elite consensus, deemed the “mainstream” ethos of Indian nationalism. And the socially and economically disadvantaged in other parts, are inconsequential because they are of no interest to the advertiser who sustains the media industry bottomline.
In this context, the growing number of social media users offers a potent challenge to the hegemonic narrative that emanates from the mainstream media. The most articulate voices here emerge from the top two or three percentiles of the population, who have access to the estimated 14 million broadband internet connections. But within this narrow strata, there is already more dissent against the news priorities and editorial policies of the mainstream media, which in terms of reach, addresses a multiple – though not a very large multiple – of broadband users.
More worrying for those who believe media freedom is a great idea as long as a few wise men control the message, is the rapid growth of internet and social media users through the mobile phone network. This is a growing constituency in Kashmir, the north-east and indeed, in several regions of the most bitter political contestation in India: territories where the promise of the minority judgment in the Bennett Coleman case is actually being sought, that media freedom is not just a right to be exercised on “sufferance” of those who own newspapers or the airwaves, but a right that all citizens have to speak and be heard, even beyond limitations of location and space.  
There is a long history of repression of this manner of free speech, but few instances where sanctions have been imposed on speech that meets every authentic criterion of “hate”. This is unsurprising, since this category of speech usually emanates in the Indian context, from Hindutva and other such supposedly “mainstream” participants in the national consensus. The February crackdown on websites is probably just a minor punctuation mark in the long-term evolution of the doctrine of “legitimate” repression of basic rights, when exceptions to the rule of free speech could be decreed. It is nonetheless, a point at which some clarity is imparted. Constitutional guarantees seem a distant, almost illusory promise when the politics of the street -- and a loud and seriously misinformed media  – are final arbiters of fundamental rights and the defence of privilege is becoming the dominant motif of state policy. This most recent information blockade targets political dissent from the fringes of “mainstream” nationalism and also a prospective challenge to the commercial calculus of the “mainstream” media.  It shows how close the convergence is, between the propaganda needs of the national security state and the commercial compulsions of the mainstream media. Finally though, what is most apparent about this new effort at controlling the message, is its utter futility, since the avenues through which people can speak and be heard are multiplying in such diverse ways, that information repression no longer is an option for states anxious to preserve control.

“Forty-Eight Hours”: A Home Minister Murders the Constitution with Express Delivery of Death

Economic and Political Weekly, Web Exclusives, February 16 2013

Basking in the euphoria orchestrated by a doting media after the execution of Ajmal Kasab last November, Union Home Minister Sushil Kumar Shinde made a promise that strangely escaped deeper scrutiny, despite its ominous ring. There would be no undue delay in determining the fate of Afzal Guru, he said: indeed, he would not delay matters beyond forty-eight hours, once the President of India decided on the mercy petition filed for the sole death row convict in the December 2001 attack on India’s parliament.
Shinde is given to frequently indecorous public utterances, especially when facing a scrum of media persons eager to get the sound-bite that will sell. But when his verbal impetuosity is seen to foretell an unseemly – and grossly illegitimate -- rush of administrative actions, his occupancy of high office should be seen as a clear menace to all civilised values.
A minister serving a republican order is not obliged to promise express delivery on a sentence of death. The “forty-eight hours” promise Shinde extended could be viewed as part of the toxic political competition underway between the ruling party and the main opposition, which has flourished on a loudly proclaimed identity of Muslim baiting. Once the battle of the bites is over, it would seem that the procedures established by law would regain primacy.
That was clearly not the case with Afzal Guru’s secret execution on the morning of February 9. The condemned man was himself informed about the rejection of his mercy petition the previous evening. Guru’s family came to know of his execution well after the event, through breathless news anchors revelling in the sensation of the moment.
Official briefings soon followed, with Shinde laying out the timeline for Guru’s march to the gallows. President Pranab Mukherjee, said the Home Minister, had soon after assuming office, referred back all mercy petitions inherited from his predecessor. Shinde’s precise words are key here: “I examined the file carefully and recommended to the President on January 21 for rejection of Afzal Guru’s petition”. The President’s formal rejection reached the Home Ministry on February 3 and was conveyed to the authorities at Delhi’s Tihar Jail, where the condemned man was held, the following day.
The rejection of Guru’s petition in other words, was not a collective decision of the cabinet, but one that Shinde arrived at exactly two months from the day he made his infamous promise of express delivery. He proved true to his word: indeed, it took him merely twenty-four hours to order an execution that an earlier President had refused to sanction, because of the deep moral ambiguities involved. In the six days before the execution, the procedures mandated by law were carried out, with seeming intent to minimise the possibility of even the slightest reprieve for the condemned man.
Practices in place in India’s prisons, famously characterised in 1980 by Justice V.R. Krishna Iyer as “melting pots of tension and anxiety” that “rob a man of his individual identity and dignity”, are a mixed bag. In the matter of Ramamurthy versus State of Karnataka, the Supreme Court took note of the abuses and wide divergences in penal practices and directed the Home Ministry to evolve a model prison manual that could be implemented through the country. In 2003, the Bureau of Police Research and Development, an office under the Home Ministry, came out with a Model Prison Manual for the Superintendence and Management of Prisons in India. The procedures it lays down before a death sentence is executed are unambiguous: “On receipt from the Government of the final confirmation and the date of execution of the prisoner sentenced to death:- (i) the prisoner and his relatives will be informed about the date of execution by the Superintendent, and (ii) The prisoner’s will may be prepared in accordance with his wish”.
These basic norms were egregiously breached in Guru’s last hours. With the execution already scheduled for the morning of February 9, he was told of the fate that awaited on the evening prior. His family was sent an intimation by the “speed post” facility – ostensibly on the evening of February 7, which of course, left Delhi the following day and reached Guru’s family two days after his execution. It was in every manner, par performance for the Indian postal system, suggesting a deliberate design to prevent the family from taking the final judicial recourse available prior to an execution.
Questioned about the serial violation of procedure in Guru’s case, Shinde was transparent about his intent. He insisted in brazen contradiction of facts, that all norms had been followed, before offering the alibi that “police and intelligence work cannot all be done out in the open”. That would make it virtually impossible to “run” the country. The precedent he clearly wanted to avoid was of the convicts in the Rajiv Gandhi assassination, who had secured a stay on execution even after their mercy petitions were turned down, on the grounds of undue delay in deciding the matter. Whatever the merit of that plea, it gained them a reprieve from execution, now extending into its second year.
There is a degree of support today for a hardheaded approach to terrorism, which seeks to eliminate all scope for dilatory manoeuvres after a final decision on clemency has been taken. In terrorist crimes that cause deep trauma, a lower threshold of tolerance for judicial delays, it is argued, would be eminently in the national interest.
This argument quickly mutates into an recipe for lawlessness. The presidential power to grant clemency does not stem from any kind of superior wisdom that the office confers, or a higher quality of grace. It is a power to be exercised with due regard for constitutional values and the principles of fairness and equity.
From the Supreme Court ruling in Kehar Singh versus Union of India, 1988, we learn that the power to grant clemency under article 72 of the Constitution, “falls squarely within the judicial domain and can be examined by the court by way of judicial review”. The Supreme Court in dealing with Kehar Singh’s case was more concerned with the President not exercising the power in its full amplitude, because the incumbent in office then chose to submit to the judicial reasoning that had guided the trial and appeals process. Kehar Singh’s son then filed a review petition arguing that the President, in declining clemency on the grounds that he could not possibly abridge a verdict confirmed by the highest court in the land, was effectively negating his own powers. The Supreme Court held then, that the President’s executive power could be exercised autonomously. Yet, the function of determining whether the power is exercised in accordance with the Constitution or is “vitiated by self-denial on an erroneous appreciation of the full amplitude of the scope of the power is a matter for the court.”
 The point is subtle but important. The judiciary could review an exercise of presidential power to ensure that it conforms to basic constitutional norms. It could not however, examine the merits of a presidential decision, except within the “strict limitations” defined by a Constitution Bench, in the case of Maru Ram versus Union of India in 1981. In turn, the latter ruling, where Justice Krishna Iyer wrote the majority opinion, lays down the norm that the President’s actions under article 72 must necessarily be undertaken on the advice of the Union Cabinet. And the scope for judicial review is confined to ascertaining that there is a “fair exercise” of this power. The motivations that were listed as possible vitiating elements in the exercise of the power were “political vendetta (and) party favouritism”. Identifying the thin line between executive privilege and the judicial authority to scrutinise its exercise, the bench observed: “While constitutional power is beyond challenge, its actual exercise may still be vulnerable”.
Working within these principles, the court in the matter of Kehar Singh, directed that his mercy petition be submitted afresh for proper consideration. It is another matter that the President turned it down even at the second instance, paving the way to the gallows for a man whose involvement in the Indira Gandhi assassination was even by the most compelling account, remote and incidental. It was many years later, with restitution being impossible, that Y.V. Chandrachud, a former Chief Justice of India admitted to a sense of gnawing remorse at Kehar Singh’s wrongful execution and indeed, entirely disavowed the death penalty as a tool of criminal justice.
The power of judicial review over presidential power was reaffirmed in S.R. Bommai versus Union of India, 1994, when the Supreme Court held the principle valid despite “the seemingly absolute nature of the power conferred by Article 72 upon the President”.
Shinde’s unseemly stratagem to corner the glory of the hangman dishonours his office and the Constitution he is committed to serve. Affording Guru one final opportunity to approach the courts for a stay on execution may have made little material difference to his ultimate fate. It is impossible to say, though from this Government’s crass and cynical point of view, there was an undoubted risk that a further appeal could potentially have fed into a new mood of introspection within the judicial fraternity about the place of capital punishment in a civilised order. Typical of this new mood has been the finding of the Supreme Court in Sangeet versus State of Haryana, 2012, where it held that a number of capital sentences handed down over the years and confirmed at the highest level of judicial appeal, had been inattentive to basic principles.
The Sangeet judgment could be read as a transparent admission of failure to evolve just and reasonable norms for the imposition of death as final arbiter. And this comes over three decades since Bachan Singh versus State of Punjab laid down the orthodoxy that holds the field: that death would be decreed only in the “rarest of rare” cases. In identifying the cases that would rise to this standard, the Supreme Court specified that due attention be paid to both the crime and the criminal.
Sangeet describes a number of instances where the “rarest of rare” norm has been capriciously interpreted by the very judicial forum that laid it down. Indeed, in a number of recent cases, Supreme Court judges have confirmed death as the appropriate – and immediate -- destination for the criminal, merely on the basis of their own revulsion at the nature of the crime. The dilemma that Justice P.N. Bhagwati identified in his famous dissent in Bachan Singh, in other words, continues to haunt the judiciary: “The views of judges as to what may be regarded as special reasons are bound to differ … depending upon .. value system and social philosophy, with the result that whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious”.
In August 2005, the Supreme Court determined that Afzal Guru’s crime had shocked the “collective conscience” of the nation, making it absolutely imperative that his life should be “extinguished”. It paid no more than cursory attention to the character of the ostensible criminal, identifying him, rightly, as a former militant in the cause of Kashmir’s independence. It completely ignored the circumstance that he had since his very brief engagement with the armed struggle, surrendered to Indian security forces and been subjected to incessant harassment, arbitrary arrest and frequent torture, as he sought to make a fresh start. Most crucially, the trial process just buried his very credible testimony that he had been compelled by identified members of the security establishment in Kashmir, to escort an individual to Delhi, who was subsequently found to have been involved in the attack on the parliament compound. Perhaps the final verdict on the tragedy of Afzal Guru, is that he simply was the man who had to be eliminated, since he knew too much of the dimensions of India’s two-decade long dirty war in Kashmir.