DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
NEW DELHI: If a person is found guilty of committing contempt of Supreme Court, will the apex court’s constitutional power to punish him be circumscribed by the Contempt of Court Act (CCA) provisions?
Senior advocate Harish Salve, appearing in the application filed by Vodafone complaining about misreporting during the hearing of its case, said CCA only provided the guiding principles and would in no way limit the apex court’s power on quantum of punishment, which in appropriate cases could exceed what is provided in the statute. The response came to a query from a five-judge bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar whether Article 129 of the Constitution, which provides that “the Supreme Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself”, meant it was bridled by the CCA.
After hearing Salve’s view, the CJI said though the bench had not taken any final view, it was of the opinion that provisions of a statute could not limit the Constitution-vested powers of the apex court. In the midst of long deliberation on the necessity of framing media reporting guidelines to protect right of an accused to reputation and dignity as well as preserve sanctity of fair trial, the bench asked for Salve’s view on restricting press freedom derived from right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution and whether it could only be done through parameters specified under Article 19(2).
The senior advocate said, “The Supreme Court need not deal with the restrictions specified under Article 19(2) because it is only engaged in an exercise to define the contours of press freedom in reporting pending investigation or trial of a case and balancing it with the right of the accused to dignity and reputation.”
Salve said these days it was common to find TV channels standing outside a house being raided by investigating agencies and telecasting minute by minute details of the search operation. “This surely besmirches someone’s reputation. What happens if the agency does not find any incriminating material or does not press any charge at the end of the investigations? Can he not move the constitutional courts seeking relief on the ground that such reporting was destroying his reputation,” he asked.
“The media should be beyond government regulations except acceptable censorship. But to argue that media is beyond all regulation is the limit,” he said. Salve also objected to media using unnecessary hyperboles to describe intense questioning by a bench in serious issues.
He said, “Judges ask sharp questions to get the best out of lawyers. There is no pulling up, tearing into or lambasting involved in the oral argument-based judicial scrutiny system in India. There is a talk of restraining judges from making comments on institutions. If anyone has to exercise restraint, it is the reporters who cover the courts, not the judges nor the lawyers who must not be inhibited in any manner from free and frank exchange of views.”
Counsel Nitya Ramakrishnan said the investigating agencies had been regularly leaking information to media to prejudice an accused branding him as a terrorist though ultimately he might get acquitted in a trial. Appearing for Rajasthan government, counsel Manish Singhvi said a state producing clear and cogent evidence of consistent media misreporting could seek temporary deferment of publication for a limited period.
“However, the order for postponement of publication must be direct, proximate with investigation and must be least intrusive to the freedom of press/electronic media. Thus, the press has a right to report even criminal sub-judice matters as long as they do not impair or destroy fair investigation,” he said. Singhvi said subordinate courts had sovereign power to dispense justice and hence, they had inherent powers to pass appropriate orders to secure the ends of justice.
- Don’t lay guidelines, outline contours of press freedom: Salve (indialawyers.wordpress.com)
- Judiciary can’t regulate press freedom: Jethmalani (indialawyers.wordpress.com)
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Mamata Banerjee‘s edict on selection of newspapers is a violation of the citizens’ right to know and is an insult to libraries.
Around 1967, Warren Unna of The Washington Post asked Shiv Sena boss Bal Thackeray whether he read any books. He received a stunning reply: “I don’t want to mix my thinking with that of others”. The same arrogance, bred by insecurity, explains the order of March 14 made by the West Bengal government headed by Mamata Banerjee: “In public interest the government will not buy newspapers published or purported to be published by any political party, either national or regional, as a measure to develop free thinking among the readers”. The affinities between the two leaders are striking — populism and intolerance of dissent.
However, Mr. Thackeray’s preference concerned him alone. Mamata’s affects 2,463 government-aided libraries, 12 government libraries, 7 government sponsored ones and the State Central Library. All English language dailies were barred. Initially, a mere eight survived — Sangbad Pratidin, Sakalbela, Dainik Statesman, Ekdin, and Khabar 365 Din in Bengali; Sanmarg (Hindi) and Akhbar-e-Mashriq and Azad Hind (Urdu).
Two of the Bengali dailies are headed by two Trinamool Congress MPs of the Rajya Sabha. The Hindi and an Urdu daily are headed by Rajya Sabha MPs of the same party. Sangbad Pratidin, for example, is owned by Srinjoy Bose, a party MP. Its associate editor Kunal Ghosh was elected recently to the Rajya Sabha on the Trinamool ticket to give the owner company. After an uproar, five more papers were added on March 28; namely, Himalaya Darpan (Nepali), Sarsagar (Santhali periodical), The Times of India, and two others.
There is another aspect, besides. The right to select papers belongs to the management of each library depending on the demand among the readers in that particular area. A central edict is an insult to them. Ms Banerjee’s order also flagrantly violates the citizens’ right to know. It is not for any Minister to prescribe a select bibliography to the Indian citizen. An official acknowledged on March 28: “This is the first instance of such a circular. The management boards of libraries have so far been the final authority on deciding which newspapers and periodicals to offer, on the basis of readers’ demands”. Now the readers are asked to read what Kolkata deems fit for their minds; “in public interest”, of course.
Arbitrary orders are invariably defended by absurd and contradictory explanations. On March 29, Mamata Banerjee and her Sancho Panza, Abdul Karim, Mass Education and Library Services Minister, explained: “We will promote local and small newspapers”. Some dailies on her approved list will not be flattered by this decision apart from the impropriety of State funding of the press.
There is a judicial ruling directly on point by a judge of eminence, Lord Justice Watkins, in the Queen’s Bench Division on November 5, 1986 (R. vs. Ealing Borough Council, ex. p. Times Newspapers Ltd. (1987) 85 L.G.R. 316). He quashed decisions by some borough councils in the U.K. to ban from public libraries within their areas newspapers and periodicals published by Times Newspapers and News Group Newspapers for the duration of an industrial dispute between them and their employees. This was done as a gesture of support to the employees. The court ruled that the authorities had taken into account an irrelevant factor and abused their powers as library authorities under the Public Libraries and Museums Act, 1964. In India, the Constitution itself will render such an act invalid as being an abuse of state power.
The petitioners, represented by Anthony Lester, Q.C., relied on Section 7 of the Public Libraries and Museums Act, 1964, which reads thus: “(1) It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof; (2) In fulfilling its duty under the preceding subsection, a library authority shall in particular have regard to the desirability — (a) of securing … that facilities are available for the borrowing of, of reference to, books and other printed materials, sufficient in number, range and quality to meet the general requirements and any special requirements of both adults and children …”
The abuse of power was blatant. The councils had but one purpose, namely to punish Rupert Murdoch for his stand in the industrial dispute. The ban was clearly for a purpose ulterior to Section 7. The violation of Section 7 was deliberate and wilful.
India’s written Constitution repairs the omission of any such statute. As H.M. Seervai pointed out in his work Constitutional Law of India, Article 294 vests the assets and properties in the Union or the State Governments, respectively, for the purpose of the Union or the State, in short, for a public purpose.
The U.S. Supreme Court ruled in 1884 that “the United States does not and cannot hold property, as a monarch may, for private or personal purposes. All the property and revenues of the United States must be held and applied, as all taxes, duties, imposts and excises must be laid and collected, to pay the debts and provide for the common defence and general welfare of the United States” (Van Brocklin vs Anderson; (1884-85 U.S. 117 U*S.151 at 158). Arbitrary expenditure unrelated to public purpose also violates the fundamental right to equality (Art. 14).
The Supreme Court of India’s landmark ruling in the International Airport Authorities Case in 1979 opened another avenue of challenge. Justice P.N. Bhagwati held: “The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual…
“It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which are not arbitrary, irrational or irrelevant.”
These tests render the order of March 14 a nullity on the very face of it. The Courts can strike it down suo moto or on the petition of any citizen.
They will render high service if they did so. For, it will provide a speedy and effective cure to a mindset which is completely out of sync with constitutional values and curbs. Ads have been stopped to “small” papers which depended on them for sheer survival. On Fools’ Day, it was disclosed that the list of Banga Bibhushan awardees, who received Rs. 2 lakh each, included artistes, poets and writers who had campaigned for the Trinamool. Didi looks after her own, albeit at public expense. An Urdu saying casts her in a different light — “Halvai ki dukan par nanaji ki fateha (Prayers for the soul of grandpa at the sweet maker’s shop, at his cost).
Don’t embark on a futile exercise, Shanti Bhushan tells Supreme Court Constitution Bench
The Press Council of India (PCI) on Tuesday suggested that the Supreme Court frame guidelines for the media as these would be in the interest of not only administration of justice and rights of the litigant public but also the media themselves.
“The media, both print and electronic, have been playing an important role in shaping and sustaining Indian democracy,” senior counsel P.P. Rao, appearing for the PCI, told a five-judge Constitution Bench headed by Chief Justice S.H. Kapadia. “The scheme of the Press Council Act itself shows that the intention of Parliament is to allow self-regulation by the media as far as possible. While the print media is within the purview of the Press Council Act, the electronic media is not. Therefore, it is desirable to lay down guidelines for both the print and electronic media to follow in reporting court proceedings, rather than making statutory rules.”
Mr. Rao told the Bench, which included Justices D.K. Jain, S.S. Nijjar, Ranjana Desai and J.S. Khehar, that the court, while framing the guidelines, might take into consideration the relevant norms of journalistic conduct laid down by the PCI. Explaining the powers of the PCI, counsel said: “Section 14(1) of the Press Council Act confers on the Council power to warn, admonish or censure the newspaper, news agency, the editor and the journalist or disapprove [of] the conduct of the editor or the journalist, as the case may be, after holding an enquiry into the complaints. The Council, which is presided over by a retired judge of this court and in which editors, working journalists and managements of big, medium and small newspapers are represented, has laid down Norms of Journalistic Conduct. Self-regulation is always better than statutory regulation. However, when any TV channel, newspaper or news agency fails to adhere to the guidelines laid down by this court, appropriate orders may be passed in the facts and circumstances of each case.”
The former Law Minister, Shanti Bhushan, appearing for some journalists, asked the CJI to dissolve the Constitution Bench hearing the present case, saying it would be a futile exercise. He cited an instance of the former CJI, Justice A.N. Ray, dissolving a 13-judge Bench after he found no support for his case. Mr. Bhushan was referring to a move by Justice Ray, who set up the 13-judge Bench to reconsider the Kesavananda Bharti judgment in which the court had held that Parliament had no right to amend the basic structure of the Constitution.
Mr. Bhushan asked the Bench not to embark on a futile exercise which would be detrimental to the rights of the press and destroy democracy in this country. “No purpose will be solved by going through this exercise.”
Taking the Anna Hazare argument, he argued that people were sovereign in India. “That is the reason why even the right to freedom of press was not absolute in this country. It was instead left to Parliament to lay down reasonable restrictions on this freedom. All institutions in our democracy are people’s institutions. Even the judiciary is accountable to the people. People have a right to know what is happening.”
Senior counsel Anil Divan, appearing for the Editor of The Hindu, Siddharth Varadarajan, commenced his arguments, pointing out the anomaly of the court deciding to lay down guidelines which in this case would “abridge” the freedoms of individuals instead of “protecting” them or “disciplining” officials. Mr. Divan cited the ‘Visakha judgment,’ saying that in that case the court was only seeking to protect fundamental rights of citizens. But in this case the Bench was embarking on a quasi-legislative exercise as once the court framed guidelines they would become immune from judicial review. “I will have no remedy. But tomorrow, if Parliament were to adopt these guidelines, the person aggrieved will have a remedy. I can challenge them before you.”
Mr. Divan said the exercise undertaken by the court was not prudent in view of globalisation of information dissemination technology. “If the guidelines will be coercive or binding in nature, then it is covered by the legislative process.”
The CJI intervened, and said: “The deliberations on the guidelines were not a result of adversarial litigation. We are only trying to regulate the media to the extent that the rights of person in criminal cases are protected under Article 21 [Right to life and liberty] of the Constitution.”
The CJI asked Mr. Divan to address the question whether the rights of the press could be balanced to ensure administration of justice and protect the rights of the accused to ensure a free trial in a criminal case.
Arguments will continue on Wednesday.
- SC will begin contemplating ‘framing of guidelines’ for court reporters (indialawyers.wordpress.com)
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- CJI writes to govt proposing National Court Management System (indialawyers.wordpress.com)
- Reporting guidelines: Supreme Court expands scope of deliberations (indialawyers.wordpress.com)
- The public needs both gavel and pen (indialawyers.wordpress.com)
NEW DELHI: As Supreme Court Wednesday explored the option of postponing the publication of court proceedings in sensitive matters, including criminal cases, it was told that news was a perishable commodity which lost its value, if banned.
“We are not banning but are invoking the doctrine of postponement. It is a question of the timing” of the reporting of court proceedings, Chief Justice S.H. Kapadia told counsel Anup Bhambhani who appeared for News Broadcasters Association ( NBA).
While evaluating the option of postponing the publication of the court proceedings, the court indicated that it may frame guidelines as had been done in some specific cases. The postponement of the publication of the ongoing court proceedings in a case would amount to ban for a certain period thereby rendering it useless, Bhambhani told the apex court‘s constitutional bench of Chief Justice Kapadia, Justice D.K. Jain, Justice S.S. Nijjar, Justice R.P. Desai and Justice J.S. Khehar.
“News is a perishable commodity. If its publication is banned then it would lose its news value,” Bhambhani told the court adding that the “practical effect of what the court is contemplating would be something it had not even thought of”.
The court asked “can media analyse the evidence even before the court had done and prejudice the case of the accused facing trial”. The judges said this on an application by the Sahara India Real Estate Corp agitating its grievance over a news channel reporting its proposal made to the Securities and Exchange Board of India on securing the money it had mopped up from the market.
On an application by Sahara, the court said it would frame guidelines for reporting of sub-judice matters. Bhambhani said an accused facing trial in the 2G case could in future approach the court saying the media should be restrained from reporting the court proceedings in his case as it was affecting his business interest. “It (postponement) will open a Pandora’s box.”
He favoured putting in place guidelines as the broadcasters had already done for themselves under the stewardship of former chief justice J.S. Verma. Senior counsel Fali Nariman, appearing for Sahara, told the court that under Article 19 of the constitution people had a right to know and the right to be informed.
He said that live telecast of parliament proceedings were the satisfaction of the right to know and the right to be informed. Every citizen has a right to know what their elected representatives were doing in parliament even if they were staging a walkout, Nariman told the court, suggesting that the court proceedings could not be shielded from the people.
Addressing the court’s option of postponement of publication of court proceedings, Nariman said that there could not be any preventive relief.
He said that courts were not empowered to make such guidelines nor was there any statutory empowerment for then to do so. The court asked Nariman if he could suggest how to balance the freedom of press with the right of an accused facing trial. The court said that in Canada they do have some law and Ireland has guidelines that restrain one-sided reporting that causes prejudice to the accused.
- SC will begin contemplating ‘framing of guidelines’ for court reporters (indialawyers.wordpress.com)
G ANANTHAKRISHNAN IN THE HINDU
What makes SOPA and PIPA especially toxic is the threat they pose to all dimensions of a website’s existence – physical presence, findability and revenue stream.
With 4.5 million signatures on a Google petition and one million messages sent to the United States Congress via the Electronic Frontier Foundation (EFF) in a single day, January 18, advocates of a free Internet have mounted a determined bid to stall new legislation that can chill free speech. The global chorus against two Bills that are winding their way through the American legal system is growing.
The two draft laws in the U.S. House of Representatives and Senate, now known around the world by the acronyms SOPA and PIPA (for Stop Online Piracy Act and Protect IP Act), have raised a storm on the Internet. They are seen as updated versions of the “Combating Online Infringements and Counterfeits Act” (COICA) which could not make progress in the Senate earlier. In a small victory for opponents, key movers of the Bills have backtracked a little, as Google, Yahoo!, Facebook, Twitter, Mozilla, Ebay, Zynga, Linkedin and AOL, among others, provide heft to the protests. Wikipedia went dark for 24 hours to make the point and when it was back, it said “millions of people have spoken in defence of a free and open Internet.”
What makes the two laws obviously detrimental for free speech worldwide is their focus on poorly defined “rogue” websites that are not based in the United States. The definitions in the draft legislation are vague in the assessment of not just free speech advocates, but most major technology companies. The legal tools to punish “infringing” websites as originally drafted in SOPA included a provision for Domain Name System blocking, and denying them the ability to exist as an address on the Internet. The firestorm of protest from U.S. voters that virtually “melted the servers” of Congress has forced the sponsors of the two laws to announce that the DNS blocking provision is now off the table.
Yet, the two Bills are far from dead and there is still plenty to worry about. The attempt to introduce strong-arm measures must be viewed against the backdrop of a persistent effort in the U.S. to use judicial processes to access personal data about individuals abroad using services such as Twitter, in the wake of the WikiLeaks expose. It makes matters more difficult that the U.S. court order prohibits the disclosure of its contents. Are there more technology companies that were covered, that have not come to light, for instance?
Moreover, the new Bills aim to create a procedure to blacklist inconvenient websites and censor them. They have many other weapons to kill websites. These include ordering search engines to remove them from results, prohibiting distribution of advertising, and, quite akin to the WikiLeaks experience, stopping companies such as PayPal or Visa from processing their financial transactions.
It is natural that the prevailing sentiment among international users of the Internet, who have either themselves experienced or have closely observed its power to bring communities together in the Middle East, North Africa and the Occupy movement cities, is “We are all Americans now.” They have no Congressman or Senator to call and petition, but they have made known their opposition to the two Bills widely online. There is a legitimate fear that if the new legal provisions go into force, technology companies coming under U.S. legal jurisdiction could be compelled, or perhaps even be willing, to disclose information on them. Some may simply react to domestic political imperatives and purge foreign websites with an inconvenient point of view. It is important to remember that unlike the existing scheme of filtering — where individual pages and search links are removed — the omnibus penal provisions in SOPA can erase the presence of entire websites.
Ironically, strong fears haunt U.S. companies as well. Some of them dread a new, high-cost technology landscape emerging in America, driving innovation, online traffic, and thus jobs and commerce to other countries that guarantee freedom. In this balkanised future, a social networking website may prefer, say, Iceland, where activists hosted early initiatives of WikiLeaks.
The “group of nine” technology companies including Google and Yahoo! that wrote the joint petition to Congress pointed to a McKinsey study that shows 3.4 per cent of GDP in 13 countries is accounted for by the Internet. In the U.S., the contribution is even larger. The Internet has increased the productivity of small and medium-sized businesses by as much as ten per cent. Trying to put in new conditions at the behest of traditional media companies including those trying to save old models of distribution and profits (for which they massively funded a lobbying campaign during 2011), can crimp growth and the new ventures.
That message is not lost on the White House, and a statement released by the Obama administration says it “will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.” Whether through a veto or through legislative defeat, halting the progress of SOPA and PIPA will be crucial to online communities that fear direct, creeping censorship of the Internet.
Censoring of Internet content is not new. All search engines remove content and filter search results based on directions and orders issued in different countries to meet the requirements of domestic laws. The toxic potential of SOPA and PIPA lies in their capacity to comprehensively throttle free speech, at least until a new competitive set of alternatives emerges on the Internet. All dimensions of a website’s existence — physical presence, findability and revenue stream are under threat.
In the democratic scheme of things, governments that guarantee free speech through statute should baulk at making domestic copies of the controversial American model to suppress their own citizens. Yet, in the Indian context, there will obviously be keen interest in the two U.S. Bills for their possible replication.
Even now, the Indian Information Technology Act, 2000 contains provisions that would not meet the accepted definition of judicial due process. Orders are issued to technology companies hosting content on websites to remove allegedly offensive or infringing material by officials of the government, circumventing a legal process that involves the courts, as is necessary in the case of traditional media.
There is also a marked preference among some leading politicians, such as Communications and Information Technology Minister Kapil Sibal, for a purge of websites and social media platforms such as Facebook, of content that is deemed “offensive”, instead of ignoring criticism from the fringe. Google has been asked to remove several items on the ground that they criticise the government or individual politicians. That there are ample provisions in existing law to handle the more egregious cases is conveniently ignored. Protections earlier available to Internet Service Providers against liability for third party content are sought to be weakened systematically. There may be a specific case to remove material that is obviously inflammatory and capable of doing harm, but the policy compass clearly points to a lurking desire for censorship. If SOPA and PIPA were to succeed in America, the move towards copycat laws in India can only be a step away.
SUNIL ABRAHAM IN THE INDIAN EXPRESS
The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) bills, at the US House of Representatives and Senate, respectively, appear to enforce property rights, but are, in fact, trade bills. In developed countries like the US, intellectual property (IP) plays a dominant role in the economy, unlike in economies like India. Countries that have significant IP are keen to increase global and national enforcement activities, while countries with little domestic IP are keen to reduce outgoing royalties in the balance of payments and therefore, keen to expand alternatives, limitations and exceptions like copyleft licensing, compulsory/statutory licensing and fair dealing.
The loss of generic medicines, hardware based on open standards, public domain content, free and open source software, open access journal articles, etc will equally impoverish consumers in the US and in India. SOPA and PIPA, therefore, do not represent the will of the average American but rather the interests of the IP sector, which has tremendous influence in the Hill. There is one more layer of complication for policy-makers to consider as they work towards a compromise of interests in Internet governance — the tension between the old and the new. The incumbents — corporations with business models that have been rendered obsolete by technological developments — versus emerging actors who provide competing products and services, often with greater technological sophistication, higher quality, at a lower cost.
The US, in terms of policy and infrastructure, still controls the global Domain Name System (DNS) and consequently, post-SOPA/PIPA, can take unilateral trade action without worrying about national variations enabled by international law. These bills directly undermine the business models of many Indian companies — generic drug manufacturers like Ranbaxy, software service providers like Infosys, electronics manufacturers like Spice and players in many other sectors dominated by IP rights. So it is baffling that they have not added their voices to the global outcry.
SOPA and PIPA, if passed, will enable the US administration to take three-pronged action against IP infringers — seizure of domain names and DNS filtering, blocking of transactions by financial intermediaries and revocation of hosting by ISPs. While circumvention may still be possible, it will get increasingly laborious — something like the Great Firewall of China, but worse. Unfortunately, the implementation of these blunt policy instruments will require more and more public-funded surveillance and censorship.
The censorship potential of efforts like SOPA and PIPA may appeal to others, as autocratic and democratic regimes across the world have been keen to try technology-mediated social engineering — these efforts have been multiplied in the post-Arab Spring and Occupy Wall Street world. Organised religion, social conservatives and those who have been at the receiving end of free speech would all want to shut down platforms like WikiLeaks and political movements like Anonymous and the Pirate Party.
These are equally dismal times for Internet governance in India. Google, Facebook and 20-odd other intermediaries are trying to avoid jail time at the hands of a Delhi court. However, ever since the IT Act amendments were put in place three years back, digital activists have been requesting intermediaries to register their protests early and often, regarding draconian provisions in the statute and in the associated rules. Their silence is going to be very expensive for all of us. We cannot depend on the private sector alone to defend our constitutional rights. As yet unpublished research from CIS demonstrates that private intermediaries only bother with defending freedom of expression when it undermines their business interests. Working with an independent researcher, we conducted a policy sting operation — faulty take-down notices were served to seven intermediaries asking for legitimate content to be taken down. In six of those cases, the intermediaries over-complied, in one case deleting all comments on a news article instead of just those comments identified in the notice. The only take-down that was resisted was one claiming that sale of diapers was “harmful to minors” under the Indian IT Act (because they caused nappy rash). It is clear that the IT Act and its associated rules have already had a chilling effect on online participation by Indians.
Fortunately for us, during the previous parliamentary session — Jayant Chaudhary, Lok Sabha MP from the Rashtriya Lok Dal, asked for the revision of rules concerning intermediaries, cyber-cafes and reasonable security practices. The next Parliament session is the last opportunity for the House to reject these rules and intervene for a free Internet.
The writer is executive director of the Bangalore-based Centre for Internet and Society
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Sh. Kapil Sibal – the Union Minister of Communications and Information Technology chaired a Round Table on Citizen Engagement and Use of Social Media here today. The Round Table was attended by about 100 stakeholders including social media organizations, civil society organizations, industry associations, members of legal fraternity, representatives of government departments and agencies and others. The discussion in the Round Table focused on:
Ways of improving citizen engagement in policy formulation and implementation of its projects and programmes
- Requirement of capacity building within government for use of social media
- Contextualising social media to Indian realities including Indian language content
- Development of Mechanisms to protect privacy and identity of individuals
- Mechanism to address security concerns about data including personal data
All stakeholders were in favour of increased use of social media as it was felt to be an important instrument in initiating dialogue with citizens in a participatory democracy. Sh. Sibal agreed with their views and felt that such close interactions not only build healthy democratic practices but also contribute to transparent and accountable governance. Sh Sachin Pilot, MoS for Communications and Information Technology, stressed on the need of creating enabling mechanisms which would help people from all parts of our country to participate in their own language and in the form of their choice i.e. text based, voice based or even sign based. The proposal received support from all present and it was stressed that technologies should enable participation of differently abled individuals also. The need for convergence of different channels of communication e.g. print, electronics, social media etc. and need for synergies between these channels was also expressed. It was agreed that appropriate mechanisms need to be created within government structures to enable faster response as required by social media based interactions.
SECRETARY CLINTON: Well, good evening, and it’s wonderful to be back in The Hague. I want to thank my colleague and friend, Foreign Minister Rosenthal, a longtime friend, and co-conspirator from time to time, Eric Schmidt. Also, thanks to Leon Willems, the director of the Free Press Unlimited, and to those of my colleagues whom I know are here, namely Carl Bildt, an incredibly connected foreign minister, along with other ministers, ambassadors, the diplomatic community, and ladies and gentlemen.
It’s a pleasure to join you here today to discuss this issue, because we think it is vitally important to every nation represented and every nation in the world; namely, internet freedom. And I want to thank Uri and the Netherlands for hosting this conference, which is a reflection of your long tradition of defending and advancing people’s human rights and fundamental freedoms everywhere, including online. And thanks as well to the representatives of nearly two dozen other governments here, all of whom I know will be working to get real solutions and recommendations agreed to tomorrow. I’m pleased we also have representatives from the private sector and civil society. So it all adds up to a multi-stakeholder event.
Now, in two days, on December 10th, we’ll celebrate Human Rights Day, which is the anniversary of the adoption of the Universal Declaration of Human Rights. And in the 63 years since that achievement, the world has been implementing a global commitment around the rights and freedoms of people everywhere, no matter where they live or who they are. And today, as people increasingly turn to the internet to conduct important aspects of their lives, we have to make sure that human rights are as respected online as offline. After all, the right to express one’s views, practice one’s faith, peacefully assemble with others to pursue political or social change – these are all rights to which all human beings are entitled, whether they choose to exercise them in a city square or an internet chat room. And just as we have worked together since the last century to secure these rights in the material world, we must work together in this century to secure them in cyberspace.
This is an urgent task. It is most urgent, of course, for those around the world whose words are now censored, who are imprisoned because of what they or others have written online, who are blocked from accessing entire categories of internet content, or who are being tracked by governments seeking to keep them from connecting with one another.
In Syria, a blogger named Anas Maarawi was arrested on July 1st after demanding that President Asad leave. He’s not been charged with anything, but he remains in detention. In both Syria and Iran, many other online activists – actually too many to name – have been detained, imprisoned, beaten, and even killed for expressing their views and organizing their fellow citizens. And perhaps the most well known blogger in Russia, Alexei Navalny, was sentenced on Tuesday to 15 days in jail after he took part in protests over the Russian elections.
In China, several dozen companies signed a pledge in October, committing to strengthen their – quote – “self-management, self-restraint, and strict self-discipline.” Now, if they were talking about fiscal responsibility, we might all agree. But they were talking about offering web-based services to the Chinese people, which is code for getting in line with the government’s tight control over the internet.
Now, these and many other incidents worldwide remind us of the stakes in this struggle. And the struggle does not belong only to those on the front lines and who are suffering. It belongs to all of us: first, because we all have a responsibility to support human rights and fundamental freedoms everywhere. Second, because the benefits of the network grow as the number of users grow. The internet is not exhaustible or competitive. My use of the internet doesn’t diminish yours. On the contrary, the more people that are online and contributing ideas, the more valuable the entire network becomes to all the other users. In this way, all users, through the billions of individual choices we make about what information to seek or share, fuel innovation, enliven public debates, quench a thirst for knowledge, and connect people in ways that distance and cost made impossible just a generation ago.
But when ideas are blocked, information deleted, conversations stifled, and people constrained in their choices, the internet is diminished for all of us. What we do today to preserve fundamental freedoms online will have a profound effect on the next generation of users. More than two billion people are now connected to the internet, but in the next 20 years, that number will more than double. And we are quickly approaching the day when more than a billion people are using the internet in repressive countries. The pledges we make and the actions we take today can help us determine whether that number grows or shrinks, or whether the meaning of being on the internet is totally distorted.
Delivering on internet freedom requires cooperative actions, and we have to foster a global conversation based on shared principles and with the right partners to navigate the practical challenges of maintaining an internet that is open and free while also interoperable, secure, and reliable. Now, this enterprise isn’t a matter of negotiating a single document and calling the job done. It requires an ongoing effort to reckon with the new reality that we live in, in a digital world, and doing so in a way that maximizes its promise.
Because the advent of cyberspace creates new challenges and opportunities in terms of security, the digital economy, and human rights, we have to be constantly evolving in our responses. And though they are distinct, they are practically inseparable, because there isn’t an economic internet, a social internet, and a political internet. There is just the internet, and we’re here to protect what makes it great.
Tomorrow’s sessions provide the opportunity for us to make concrete progress. At this kickoff event, I’d like to briefly discuss three specific challenges that defenders of the internet must confront.
The first challenge is for the private sector to embrace its role in protecting internet freedom, because whether you like it or not, the choices that private companies make have an impact on how information flows or doesn’t flow on the internet and mobile networks. They also have an impact on what governments can and can’t do, and they have an impact on people on the ground.
In recent months, we’ve seen cases where companies, products, and services were used as tools of oppression. Now, in some instances, this cannot be foreseen, but in others, yes, it can. A few years ago, the headlines were about companies turning over sensitive information about political dissidents. Earlier this year, they were about a company shutting down the social networking accounts of activists in the midst of a political debate. Today’s news stories are about companies selling the hardware and software of repression to authoritarian governments. When companies sell surveillance equipment to the security agency of Syria or Iran or, in past times, Qadhafi, there can be no doubt it will be used to violate rights.
Now, there are some who would say that in order to compel good behavior by businesses, responsible governments should simply impose broad sanctions, and that will take care of the problem. Well, it’s true that sanctions and export controls are useful tools, and the United States makes vigorous use of them when appropriate; and if they are broken, we investigate and pursue violators. And we’re always seeking to work with our partners, such as the European Union, to make them as smart and effective as possible. Just last week, for example, we were glad to see our EU partners impose new sanctions on technology going to Syria.
So sanctions are part of the solution, but they are not the entire solution. Dual-use technologies and third-party sales make it impossible to have a sanctions regime that perfectly prevents bad actors from using technologies in bad ways. Now, sometimes companies say to us at the State Department, “Just tell us what to do, and we’ll do it.” But the fact is, you can’t wait for instructions. In the 21st century, smart companies have to act before they find themselves in the crosshairs of controversy.
I wish there were, but there isn’t, an easy formula for this. Making good decisions about how and whether to do business in various parts of the world, particularly where the laws are applied haphazardly or they are opaque, takes critical thinking and deliberation and asking hard questions. So what kind of business should you do in a country where it has a history of violating internet freedom? Is there something you can do to prevent governments from using your products to spy on their own citizens? Should you include warnings to consumers? How will you handle requests for information from security authorities when those requests come without a warrant? Are you working to prevent post-purchase modifications of your products or resale through middlemen to authoritarian regimes?
Now, these and others are difficult questions, but companies must ask them. And the rest of us stand ready to work with you to find answers and to hold those who ignore or dismiss or deny the importance of this issue accountable. A range of resources emerged in recent years to help companies work through these issues. The UN Guiding Principles on Business and Human Rights, which were adopted in June, and the OECD Guidelines for Multinational Enterprises both advise companies on how to meet responsibilities and carry out due diligence. And the Global Network Initiative, which is represented here tonight, is a growing forum where companies can work through challenges with other industry partners, as well as academics, investors, and activists.
And of course, companies can always learn from users. The Silicon Valley Human Rights Conference in October brought together companies, activists, and experts to discuss real life problems and identify solutions. And some participants issued what they called the Silicon Valley Standard for stakeholders to aspire to.
Working through these difficult questions by corporate executives and board members should help shape your practices. Part of the job of responsible corporate management in the 21st century is doing human rights due diligence on new markets, instituting internal review procedures, identifying principles by which decisions are to be made in tough situations, because we cannot let the short-term gains that all of us think are legitimate and worth seeking jeopardize the openness of the internet and human rights of individuals who use it without it coming back to haunt us all in the future. Because a free and open internet is important not just to technology companies but to all companies. Whether it’s run with a single mobile phone or an extensive corporate network, it’s hard to find any business today that doesn’t depend in some way on the internet and doesn’t suffer when networks are constrained.
And also I would add that, in this day, brand and reputation are precious corporate assets. Companies that put them at risk when they are careless about freedom of the internet can often pay a price.
So I think it’s particularly appropriate and important that the private sector is strongly represented at this meeting and that Google is co-hosting tonight’s event. In both securing the promise of a free and open internet and managing the risks that new technologies raise, the private sector is a crucial partner.
But even as companies must step up, governments must resist the urge to clamp down, and that is the second challenge we face. If we’re not careful, governments could upend the current internet governance framework in a quest to increase their own control. Some governments use internet governance issues as a cover for pushing an agenda that would justify restricting human rights online. We must be wary of such agendas and united in our shared conviction that human rights apply online.
So right now, in various international forums, some countries are working to change how the internet is governed. They want to replace the current multi-stakeholder approach, which includes governments, the private sector, and citizens, and supports the free flow of information, in a single global network. In its place, they aim to impose a system cemented in a global code that expands control over internet resources, institutions, and content, and centralizes that control in the hands of governments.
Now, in a way, that isn’t surprising, because governments have never met a voice or public sphere they didn’t want to control at some point or another. They want to control what gets printed in newspapers, who gets into universities, what companies get oil contracts, what churches and NGOs get registered, where citizens can gather, so why not the internet? But it’s actually worse than that. It’s not just that they want governments to have all the control by cutting out civil society and the private sector; they also want to empower each individual government to make their own rules for the internet that not only undermine human rights and the free flow of information but also the interoperability of the network.
In effect, the governments pushing this agenda want to create national barriers in cyberspace. This approach would be disastrous for internet freedom. More government control will further constrict what people in repressive environments can do online. It would also be disastrous for the internet as a whole, because it would reduce the dynamism of the internet for everyone. Fragmenting the global internet by erecting barriers around national internets would change the landscape of cyberspace. In this scenario, the internet would contain people in a series of digital bubbles, rather than connecting them in a global network. Breaking the internet into pieces would give you echo chambers rather than an innovative global marketplace of ideas.
The United States wants the internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online, and we also need to protect the internet itself from plans that would undermine its fundamental characteristics.
Now, those who push these plans often do so in the name of security. And let me be clear: The challenge of maintaining security and of combating cyber crime, such as the theft of intellectual property, are real – a point I underscore whenever I discuss these issues. There are predators, terrorists, traffickers on the internet, malign actors plotting cyber attacks, and they all need to be stopped. We can do that by working together without compromising the global network, its dynamism, or our principles.
Now, there’s a lot to be said about cyber security. I won’t go into that tonight. I’ll be talking about it more, but my basic point is that the United States supports the public-private collaboration that now exists to manage the technical evolution of the internet in real time. We support the principles of multi-stakeholder internet governance developed by more than 30 nations in the OECD earlier this year. A multi-stakeholder system brings together the best of governments, the private sector, and civil society. And most importantly, it works. It has kept the internet up and running for years all over the world. So to use an American phrase, our position is, “If it ain’t broke, don’t fix it.” And there’s no good reason to replace an effective system with an oppressive one.
The third and final challenge is that all of us – governments, private, sector, civil society, must do more to build a truly global coalition to preserve an open internet. And that’s where all of you here today come in, because internet freedom cannot be defended by one country or one region alone. Building this global coalition is hard, partly because for people in many countries the potential of the internet is still unrealized. While it’s easy for us in the United States or in the Netherlands to imagine what we would lose if the internet became less free, it is harder for those who have yet to see the benefit of the internet in their day to day lives. So we have to work harder to make the case that an open internet is and will be in everyone’s best interests. And we have to keep that in mind as we work to build this global coalition and make the case to leaders of those countries where the next generation of internet users live. These leaders have an opportunity today to help ensure that the full benefits are available to their people tomorrow, and in so doing, they will help us ensure an open internet for everyone.
So the United States will be making the case for an open internet in our work worldwide, and we welcome other countries to join us. As our coalition expands, countries like Ghana and Kenya, represented here tonight, Mongolia, Chile, also represented, I saw, Indonesia and others are sure to be effective at bringing other potential partners on board who have perspectives that can help us confront and answer difficult questions. And new players from governments, the private sector, and civil society will be participating in managing the internet in coming decades as billions more people from all different regions go online.
So let’s lay the groundwork now for these partnerships that will support an open internet in the future. And in that spirit, I want to call attention to two important items on your agenda for tomorrow. The first will be to build support for a new cross-regional group that will work together in exactly the way that I’ve just discussed, based on shared principles, providing a platform for governments to engage creatively and energetically with the private sector, civil society, and other governments.
Several countries have already signaled their intention to join. I hope others here will do the same, and going forward, others will endorse the declaration that our Dutch hosts have prepared. It’s excellent work, Uri, and we thank you for your leadership.
The second item I want to highlight is a practical effort to do more to support cyber activists and bloggers who are threatened by their repressive governments. The Committee to Protect Journalists recently reported that of all the writers, editors, and photojournalists now imprisoned around the world, nearly half are online journalists. The threat is very real. Now, several of us already provide support, including financial support, to activists and bloggers, and I was pleased that the EU recently announced new funding for that purpose. And I know that other governments, including the Netherlands, are also looking for ways to help out.
By coordinating our efforts, we can make them go further and help more people. Earlier, I heard what the foreign minister here is proposing. And we have talked about creating a digital defenders partnership to be part of this global effort. We hope tomorrow’s meetings will give us a chance to discuss with other potential partners how such a partnership could work.
So while we meet here in the Netherlands in this beautiful city to talk about how to keep the internet open, unfortunately some countries are pulling very hard in the opposite direction. They’re trying to erect walls between different activities online, economic exchanges, political discussions, religious expression, social interaction, and so on. They want to keep what they like and which doesn’t threaten them and suppress what they don’t. But there are opportunity costs for trying to be open for business but closed for free expression, costs to a nation’s education system, political stability, social mobility, and economic potential.
And walls that divide the internet are easier to erect than to maintain. Our government will continue to work very hard to get around every barrier that repressive governments put up, because governments that have erected barriers will eventually find themselves boxed in, and they will face the dictator’s dilemma. They will have to choose between letting the walls fall or paying the price for keeping them standing by resorting to greater repression and to escalating the opportunity cost of missing out on the ideas that have been blocked and the people who have disappeared.
I urge countries everywhere, instead of that alternative dark vision, join us here today in the bet that we are making, a bet that an open internet will lead to stronger, more prosperous countries. This is not a bet on computers or mobile phones. It’s a bet on the human spirit. It’s a bet on people. And we’re confident that together, with our partners and government, the private sector, and civil society around the world, who have made this same bet like all of you here tonight, we will preserve the internet as open and secure for all.
On the eve of Human Rights Day, this meeting reminds us of the timeless principles that should be our north star. And a look at the world around us and the way it is changing reminds us there is no auto-pilot steering us forward. We have to work in good faith and engage in honest debate, and we have to join together to solve the challenges and seize the opportunities of this exciting digital age. Thank you all for being committed to that goal and that vision. The United States pledges our support and our partnership going forward.
Thank you all very much.
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
The UPA government and minister Kapil Sibal must be congratulated for showing remarkable restraint in not proceeding against Internet companies which hosted pages with defamatory and inflammatory content about religious figures and leaders like Prime Minister Manmohan Singh and Congress president Sonia Gandhi. For, they had the wherewithal and, most importantly, the power to arm-twist them into submission, whatever may have been the public reaction.Sibal said the need for talking to the Internet companies was because he intended to sensitize them about public sentiments and cultural ethos, which were “very important to us”. He also clarified that he never advocated pre-censorship of material on the web.
But one wonders what prompted this knee-jerk reaction in the garb of mandatorily eliciting respect for public sentiments and cultural ethos? Those acquainted with web portals and blogs know that netizens’ seldom arrest their urge to instantaneously post their inner-most thoughts without thinking whether it is good, bad or ugly.The government and the minister surely can block popular web portals or social networking sites and force Internet companies to remove unwarranted reference to revered leaders.
But can circulation of such content be stopped in its entirety? Will it prevent a blogger from speaking his mind among his friends, who in turn will carry it far and wide.
“Every free man has undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of press (read expression),” the Supreme Court had said more than 60 years ago in Brij Bhushan vs State of Delhi [1950 SCR 605], quoting famous English jurist William Blackstone.
In its zeal to project seamlessness of the fundamental right to free speech and expression, the SC probably forgot to mention the other part of the quote attributed to Blackstone, who had said “but if he publishes what is improper, mischievous or illegal, he must take the consequences of his temerity”.
Consequences of disregarding the responsibility cast on a person exercising his right to free speech applies to bloggers too. A couple of years back, the Supreme Court had refused to stay the trial of a blogger in a defamation case saying he must face the consequences of what he wrote.
Legal consequences apart, the worrying part is the intention behind the move. Is it an attempt to screen what is being posted on web pages, not mechanically but manually? Political leaders seldom bother about what is being written about them in the virtual world. For, the public knows most intricate details of the character, integrity, temperament and reputation of every political figure; howsoever hard they may attempt to hide those embarrassing traits of their personality, most of which may not have been written about in the newspapers or displayed on television screens.
So, should a blogger be prevented from writing about those unknown facets of a leader? Indian political class may learn something from the approach of British judiciary towards uncharitable comments against them.
On initiation of contempt proceedings for undignified things written about judges, Lord Denning had said in R vs Commissioner of Police [(1968) 2 QB 150], “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For, there is something far more important at stake. It is no less than freedom of speech itself.”
The respect for right to free speech is universal. Yes, the writer must be prepared to face the consequences if the contents exceeded the civility parameters. But some crossing this boundary of civility cannot be the basis for an attempt to impede free discussion and debate about personalities and their traits on the web. The entire exercise against Facebook and others somehow leaves one with a feeling that the government wants to keep something under wraps, which it believed would explode soon on the web.
Justice A P Shah in THE HINDU
Indian courts have consistently upheld and championed the fundamental right to free speech and expression enshrined in the Constitution. This includes the right to put forward different and contrary views, right or wrong. A recent instance saw the Supreme Court of India striking down Uttar Pradesh‘s ban on the film Aarakshan. This article by A.P. Shah, retired Chief Justice of the Madras and Delhi High Courts, sets out key issues relating to freedom of expression and censorship by the state. The article, written before the ban on the film, Dam 999, is highly relevant in the current context.
The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
— John Stuart Mill, On Liberty, 1859
A few months ago, Aarakshan joined a long list of films whose screenings were sought to be curtailed by the state instrumentalities, because the social aspects depicted by them were seemingly understood as being bold or uncomfortable to the interests of certain sections of society. This once again raises the question whether India has truly come of age, or whether the freedom to express oneself is subservient to the subjective satisfaction of the state.
Just before the release of Aarakshan, which attempts to critically analyse the system of reservation in admissions in the Indian education system, three States, namely, Punjab, Andhra Pradesh and Uttar Pradesh, decided to suspend the screening of the film in their respective States. The Director of the film approached the Supreme Court against this decision of the States, contending that it amounted to pre-censorship when no such power was vested in them. During the pendency of the petition, Punjab and Andhra Pradesh withdrew the order of suspension in their States. However, Uttar Pradesh remained adamant and decided to defend its order.
Striking down the decision of the Uttar Pradesh Government, the Supreme Court held that even delicate issues like reservation require public discussion and debate in a vibrant democracy such as ours. Such a discussion on social issues spreads awareness, which is required for the effective working of the democracy. In fact, such an informed and positive decision only helps society to grow.
Free speech and expression under the Constitution
The right to freedom of speech and expression is enshrined as a fundamental right under Article 19(1)(a) of the Constitution. Freedom of expression means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. Such is the importance of this right in a democracy that without this right, the attempt to achieve a democratic and principles would be a hollow formality.
Although this right has wide amplitude, our Constitution mandates that when seeking to uphold the larger interest of society, the rights of an individual must give way to such collective rights. It is for this purpose that the right to freedom of speech and expression under Article 19(1)(a) is qualified by “reasonable restrictions” under Article 19(2) of the Constitution. However, to preserve the essence of democracy as also to prevent the state from exercising its will arbitrarily, it is required that such restrictions must only be imposed with a great amount of care and caution.
The Supreme Court, in the case of Life Insurance Corporation of India v. Prof. Manubhai D. Shah (1992) 3 SCC 637, stated that the restriction had to be interpreted strictly and narrowly. Such restrictions are bound to be viewed as anathema, inasmuch as they are in the nature of curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities who seek to impose them.
In contrast to India, the American system places a much greater value on this right as the First Amendment to the U.S. Constitution does not permit any prior restraint, and the guarantee of free speech is absolute and unqualified.
Role of the censor
It was stated in K.A. Abbas v. Union of India and Ors., AIR 1971 SC 48that although it must be remembered that the cinematograph is a powerful medium, the mere portrayal of a social vice in a movie cannot attract the censor’s scissors: how the theme is handled by the producer should be the criterion. While analysing the role of the censor, the Supreme Court held: “The task of censor is extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination…..Our standards must be so framed that we are not reduced to a level where the protection of the least capable and most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom this leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.”
Lawrence Liang stated in his article headlined ‘Sense and Censorbility’: “The practical mission of censorship is closely tied to the idea of creating an ‘ideal citizen-viewer. The task of censorship is to teach the viewer to become a citizen through particular spectatorical practices, and the imagined gaze of the citizen-viewer determines the specific content of censorship laws.”
Censorship on the decline
In general, prior restraint regarding film screenings has been on the decline over the decades in the democratic world. Since the 1960s in the United States, the courts have prescribed rigid criteria for prior restraint in cinema. Gradually, film censorship became impractical and no prior administrative restraint of films exists today in U.S. However, supervision of films still exists in the shape of film classifications introduced by the Motion Picture Association of America. Similarly in England, there is no general legislation conferring powers to censor movies, but the common practice is that censorship is based on the classification of movies according to their suitability to different audiences.
However, in contrast, certain countries such as India and several other Asian countries still retain censorship powers on films. The same can at best be understood as something in the nature of enforced morality being subjected upon the citizens by their state.
It is observed that censorship has been on the decline even in a country like Israel which is considered to be largely conservative. The Israel Supreme Court, through landmark decisions such as Israel Film Studios v. Gerry (1962) Isr SC 15 2407 and Bakri v. Film Censorship Board (2003) Isr SC 58 (1) 249, has been instrumental in negating the overreach of the censors even in cases where it was submitted that there would be “an outburst of negative feelings against the state,” and “severe offence to the feelings of a section of the society”. In Laor v. Film and Plays Censorship Board (1987) Isr SC 41 (1) 421, the Censor Board refused to permit the staging of the play Ephraim Returns to the Army, on the ground that it presented a distorted and false picture of the military administration and the occupied territories under Israeli military rule. The court overruled this objection and observed: “The parallel between the German soldier arresting a child and the Israeli soldier arresting an Arab youngster breaks my heart. Nonetheless we live in a democratic state, in which heartbreak is the very heart of democracy.”
The case of Ore Oru Gramathile
The case of S. Rangarajan v. P. Jagjivan Ram and Ors. (1989) 2 SCC 574, concerned a film Ore Oru Gramathile, which much like Aarakshan, was critical of the policy of reservation of the government. Allowing the screening of the movie, the Supreme Court held that in a democracy, it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. Movie is the legitimate and the most important medium in which issues of general concern can be treated.
The court also held that on the issue of balancing the two interests, the commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest.
Censor board has failed
Despite the power of regulating the content of films being vested in the Censor, the Central Board of Film Certification (CBFC) has often failed in the task entrusted to it by either stifling creativity or hijacking morality and trying to substitute it with the morality of certain vested interests. It is at times like these that the courts have to step in as the saviour of freedom, safeguarding different forms of expression against the censorial instincts of the state.
The Anand Patwardhan case
In the case of Anand Patwardhan v. Union of India, AIR 1997 Bom 25, Doordarshan refused to telecast the petitioner’s film, In Memory of Friends, which was about the violence in Punjab. The Bombay High Court, while dealing with the objection to screening of a movie, held: “The film maker may project his own message which the other may not approve of. But he has a right to ‘think out’ and put the counter appeals to reason. The State cannot prevent open discussion and open expression, however, hateful to the policies.”
The court further held that the petitioner’s film must be judged in its entirety. The film has a theme and it has a message to convey.
The same film maker, in Anand Patwardhan v. Union of India 1997 (3) Bom CR 438, approached the Bombay High Court seeking a direction to Doordarshan to telecast his documentary Raam-Ke-Naam. Objection was taken to certain scenes in the film where akar sevak justified the assassination of Mahatma Gandhi by Nathuram Godse. Rejecting the point of view that the film provoked commission of offence, it was held that “viewed from the healthy and common sense of point of view, it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists.”
Anand Patwardhan also challenged an order of the Film Certification Appellate Tribunal (FCAT), in Anand Patwardhan v. CBFC 2003 (5) Bom CR 58, which had directed changes to his documentary War and Peace (Jang aur Aman)that showed a Dalit leader questioning in his speech why the bomb had exploded on Buddha Jayanti day and not on Lord Rama’s birthday. The Bombay High Court held that it is only in a democratic form of government that the citizens have a right to express themselves fully and fearlessly as to what their point of view is towards the various events that are taking place around them.
Censorship against depiction of the aftermath of Godhra riots
The case of F.A. Picture International v. CBFC AIR 2005 Bom 145 was regarding the film Chand Bujh Gaya, which depicted the ordeal of a young couple — a Hindu boy and a Muslim girl — whose lives were torn apart in the State of Gujarat. The CBFC held that “the Gujarat violence is a live issue and a scar on national sensitivity. Exhibition of the film will certainly aggravate the situation.” The Bombay High Court held that no democracy can countenance a lid of suppression on events in society and stability in society can only be promoted by introspection into social reality, however grim it may be.
In Ramesh Pimple v. CBFC 2004 (5) Bom CR 214, the documentary film Aakrosh focused on the communal riots in Gujarat. The CBFC sought to curtail the screening of the movie on the ground that such exhibition would incite suppressed communal feelings. However, overruling this objection, the court gave the opinion that it is when the hour of conflict is over that it may be necessary to understand and analyse the reason for strife. We should not forget that the present state of things is the consequence of the past; and it is natural to inquire as to the sources of the good we enjoy or for the evils we suffer.
The Da Vinci Code controversy
The case Sony Pictures Releasing of India Ltd. v. State of Tamil Nadu, (2006) 3 M.L.J. 289, dealt with objection to the screening of Da Vinci Code, as the movie was considered to be offensive to the beliefs of Christians. Allowing the screening of the film, the Madras High Court held that the issue is whether there can be a work of art or literature or a film which propounds such interpretations, and whether the public have the right to decide whether to accept or reject such alternative interpretation. The issue is whether the state is bound to protect the person whose fundamental right is sought to be violated by people who threaten to breach peace, or whether the state will mutely watch such threats.
“When men differ in opinion, both sides ought equally to have the advantage of being heard by the public,” wrote Benjamin Franklin. If one is allowed to say that a certain policy of the government is good, another is with equal freedom entitled to say that it is bad. If one is allowed to support a governmental scheme, the other could as well say that he would not support it. The different views are allowed to be expressed by proponents and opponents not because they are correct or valid, but because there is freedom in this country to express differing views on any issue. The ultimate good in a society is better reached by free trade in ideas — the best test of truth is the power of the thought to get itself accepted in the competition of the market. Courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution.
(Justice A.P. Shah is a retired Chief Justice of the Madras and Delhi High Courts. He wrote this article in the context of the ban on Aarakshan.)
- Censorship and the State (indialawyers.wordpress.com)