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.
