Lex non distinguitur nos non distinguere debemus
(The law does not distinguish and so we ought not distinguish)
Maintaining propriety in public speech is one of the key canons of judicial ethics. Propriety demands that judges desist from airing their views on issues that are sub judice, controversial or that are likely to be adjudicated by themselves or other courts.
While the honourable udges cannot be denied the right to privately hold views, secretly wear ideological and political biases and feel frustrations like that of an ordinary citizen, decorum demands they resist the temptation to air them in public forums.
Lordships should remember that words coming out of their mouth, both inside the sanctum sanctorum of justice and outside carry more weight than that of an ordinary official. They just cannot afford to be frivolous in the use of words. More so at a time when Indian democracy is facing threats from perpetrators of terrorism and the questionable means the state wants to employ in its fight against the menace through enactment of draconian laws and encounter style executions.
The opinion expressed recently by one of the senior judges in the Supreme Court, shows that the judiciary too has started to feel the pressure imposed by politicians who feed the rhetoric on terror as a means to garner votes and a society that feels terrorised in the absence of security. Such thoughts render the concept of fair trial invalid. The fact that such a statement came from top echelons of our judiciary means that list of worries of India’s civil society is a growing list.
According to the learned Judge, who sits in the Constitution bench and has co-authored books that analyse threadbare the Article 21 (Right to life and liberty under the Constitution: a critical analysis of Article 21; Publisher: Bombay : N.M. Tripathi, 1993) a terrorist is not fit to be called a human. "He's an animal and what is required is animal rights," quipped Justice Arijit Pasayat, No 3 in the court by seniority, while speaking at a seminar on 'Investigation and Prosecution of Offences relating to Terrorism', organised by Indian Law Institute in New Delhi.
According to a Times of India report he also poured out 'anguish and pain at the current trend of crucification of police officials by so-called human rights groups for every perceived fault in any police operation against terrorists. "Today we are concerned with the rights of the terrorists but we are unmindful of the plight of the victims of terrorism. How many protest marches have been organised seeking to highlight the plight of poor daily wager bystanders, with whose death his family leads a life of extreme penury?" Pasayat said continuing his broadside against rights activists. The Judge also made allusions to the Batla House encounter and the case of Mohammed Afzal whose mercy petition is still pending before the President of India.
Joining him in the tirade was Solicitor General G.E. Vahanvati who said lot of “noise” being made for the nabbed Mumbai terrorist Ajmal Kasab's right to defence.
Now contrast this with what Supreme Court Chief Justice K.G. Balakrishnan had to say on December 13, 2008 while addressing the inaugural session of the international conference of jurists on 'Terrorism, Rule of Law & Human Rights' in New Delhi:
Adherence to the constitutional principle of ‘substantive due process’ is an essential part of our collective response to terrorism. As part of the legal community, we must uphold the right to fair trial for all individuals, irrespective of how heinous their crimes may be. If we accept a dilution of this right, it will count as a moral loss against those who preach hatred and violence. We must not confuse between what distinguishes the deliberations of a mature democratic society from the misguided actions of a few.
No one expects the entire colloquium of judges to speak in one voice. It’s perfectly acceptable that Judges differ in opinion, but when the brightest legal minds of the country begin to deviate from the spirit of the Constitution and the accepted and revered statutes of International Human Rights covenants one feels jittery.
Justice Pasayat exhibited a perverse sense of justice, and a pathetic sense of humour when he dubbed terrorists as animals and said shockingly tongue-in-cheek that they require animal rights. The words must have been uttered in a moment of emotional outburst, but it certainly exposed the ideals that guide his current judicial philosophy.
What message would it be sending to Judges of lower level courts waiting anxiously for guidance in hundreds of human rights/terrorism related cases and police officials looking for the slightest excuse to disentangle their actions from the scrutiny of fundamental rights.
Lordships should know that in the fight against terrorism, an error made by a judge who circumvents the due process of law is greater than omissions and commissions committed by other branches of democracy. Only the judiciary holds the power to scrutinise the action of the executive and the legislature and order a correction of course if they have erred.
The role of a Supreme Court Judge in a democracy is two-fold, writes Aharon Barak in 'The Judge in a Democracy' - to bridge the gap between law and society, and to protect democracy and its constitution.
There are no shortcuts here. No 'state of exception' that allows skipping the due process of law because the times are different. Once the threat of terrorism passes and peace returns judges will not be able to wish away the terrible consequence of their actions.
Related links: http://timesofindia.indiatimes.com/India/Can_rights_apply_to_terrorists_who_kill_innocents_asks_SC/articleshow/4043724.cms
http://www.indianexpress.com/news/human-rights-terrorists-are-animals-we-nee.../416004/
Saturday, January 31, 2009
Friday, January 30, 2009
Why Barkha Dutt should walk the talk?
Writing her Independence Day-eve Khaleej Times column in 2007, on the government plans to muzzle electronic media through creation of a content code, journalist Barkha Dutt rued that the irony is entirely befitting. She was talking about the move to strangle her fraternity into silence, just as India marked 60 years as an independent, secular democracy.
Arguing the case for a responsible media that will adopt standards of self-regulation as against the to-be-imposed ‘content code’, an ill conceived, insidious and dangerous piece of legislation, she said: We need to raise our standards to that level of accountability before we can get completely self-righteous. We need to tell the government to get out of our space. But we also need to be open to the same scrutiny we subject everyone else to.
Public memory is short and pardonable. But when activist-crusaders who profess ethical standards for others and prides themselves to be at the vanguard of media freedom suffer from selective amnesia, uncomfortable questions need to be asked. Especially at a time when the media in India is engaged in a tooth and nail battle against the Information and Broadcasting (I&B) ministry's move to enforce censorship through the backdoor.
Not more than two weeks ago the editors of India's top television channels got together to tell the Prime Minister Manmohan Singh that the draconian provisions in the proposed Cable Television Network Regulations (CNR) Act is a throwback to the era of emergency. Something that is purely unacceptable because it is aimed solely at subjugating the media to total government control. Madam Barkha Dutt as the Managing Editor of the fearless NDTV was one of the signatories of the letter.
And now we hear the news that this widely respected and equally ridiculed member of the journalistic community, who is supposed to protect the freedom of speech and expression as enshrined in the constitution has abused her position as the group editor of a media conglomerate to legally intimidate a hapless blogger and make him withdraw a post critical of her coverage of the 26/11 Mumbai attack.
What a shame!
And as Barkha wrote in her Independence Day-eve column, the irony couldn't be any less befitting.
The Netherlands based Indian blogger Chyetanya Kunte had to retract comments made on his/her blog http://ckunte.com in the post titled 'Shoddy journalism' against the NDTV Ltd and Barkha Dutt and tender an unconditional apology, presumably because of a threatening legal memo.
While Kunte himself has not made any mention that he was threatened with legal action by NDTV, the tone and legalese in the retraction statement posted in his website clearly point to the fact that it was done to save his skin and money.
Reading the google cache record of the now deleted post which touched Barkha's celebrity nerve, one is at pains to understand how a journalist schooled in Columbia and has won accolades for taking on rabid right-wingers, can display such arrogance, when faced with criticism. Kunte's opinion was not in any sense more vitriolic than that made by thousands of viewers who were hurt by the insensitive and lopsided coverage of the Mumbai carnage by various TV channels. Only two words - the use of 'idiot' as an adjective before the word journalist and 'shut-the-f***-up', a vulgar idiom for shut up - seems to be off the mark. Angry words that he wrote as he watched the ghastly events of Mumbai unfold in the television screen on November 27.
The criticism he levelled against Barkha – on the possible risk of loss of life of hotel guests and allegations of soldier deaths in 1999 Kargil operation - was backed by links to a Wikipedia entry and other media reports. It is perplexing why NDTV chose to go against a blogger who only acted well within the rights. The only possible explanation is that they wanted to make an example of him. You are not supposed to touch a 24/7 holy cow .
It's also a sad day for the media fraternity because Kunte was being threatened of libel for making legitimate criticism about an issue of public concern. Freedom of speech is the foundation of a functioning democracy, and the law of libel shouldn't be used to stifle expression of an opinion that could have taken the debate forward. Of all pillars of democracy the media should be the first to recognises this right. The one to raise the pitch to the shrillest level when someone’s right to free speech feels threatened.
The criticism and scrutiny that NDTV and Barkha is now being subjected to in the blogosphere for its alleged highhandedness is also a pointer to the fact that the mainstream media is clueless about the power and opportunity of social media. They need to understand that journalism as defined by large media houses has entered a period of declining sovereignty. While it's true that mainstream media has attempted to interact with and adopt certain features of the social media they seem to be generally wary of bloggers and their growing influence in the media ecology.
I would like to quote more of Barkha to prove the point that NDTV’s action is a misadventure that need to be corrected. Or else the entire media stands the risk of playing into the hands of those who aspire to stifle it.
Responding to the criticism levelled against the NDTV coverage of the Mumbai attacks Barkha wrote: I believe that criticism is what helps us evolve and reinvent ourselves.
I believe in Barkha. I hope she walks the talk.
Arguing the case for a responsible media that will adopt standards of self-regulation as against the to-be-imposed ‘content code’, an ill conceived, insidious and dangerous piece of legislation, she said: We need to raise our standards to that level of accountability before we can get completely self-righteous. We need to tell the government to get out of our space. But we also need to be open to the same scrutiny we subject everyone else to.
Public memory is short and pardonable. But when activist-crusaders who profess ethical standards for others and prides themselves to be at the vanguard of media freedom suffer from selective amnesia, uncomfortable questions need to be asked. Especially at a time when the media in India is engaged in a tooth and nail battle against the Information and Broadcasting (I&B) ministry's move to enforce censorship through the backdoor.
Not more than two weeks ago the editors of India's top television channels got together to tell the Prime Minister Manmohan Singh that the draconian provisions in the proposed Cable Television Network Regulations (CNR) Act is a throwback to the era of emergency. Something that is purely unacceptable because it is aimed solely at subjugating the media to total government control. Madam Barkha Dutt as the Managing Editor of the fearless NDTV was one of the signatories of the letter.
And now we hear the news that this widely respected and equally ridiculed member of the journalistic community, who is supposed to protect the freedom of speech and expression as enshrined in the constitution has abused her position as the group editor of a media conglomerate to legally intimidate a hapless blogger and make him withdraw a post critical of her coverage of the 26/11 Mumbai attack.
What a shame!
And as Barkha wrote in her Independence Day-eve column, the irony couldn't be any less befitting.
The Netherlands based Indian blogger Chyetanya Kunte had to retract comments made on his/her blog http://ckunte.com in the post titled 'Shoddy journalism' against the NDTV Ltd and Barkha Dutt and tender an unconditional apology, presumably because of a threatening legal memo.
While Kunte himself has not made any mention that he was threatened with legal action by NDTV, the tone and legalese in the retraction statement posted in his website clearly point to the fact that it was done to save his skin and money.
Reading the google cache record of the now deleted post which touched Barkha's celebrity nerve, one is at pains to understand how a journalist schooled in Columbia and has won accolades for taking on rabid right-wingers, can display such arrogance, when faced with criticism. Kunte's opinion was not in any sense more vitriolic than that made by thousands of viewers who were hurt by the insensitive and lopsided coverage of the Mumbai carnage by various TV channels. Only two words - the use of 'idiot' as an adjective before the word journalist and 'shut-the-f***-up', a vulgar idiom for shut up - seems to be off the mark. Angry words that he wrote as he watched the ghastly events of Mumbai unfold in the television screen on November 27.
The criticism he levelled against Barkha – on the possible risk of loss of life of hotel guests and allegations of soldier deaths in 1999 Kargil operation - was backed by links to a Wikipedia entry and other media reports. It is perplexing why NDTV chose to go against a blogger who only acted well within the rights. The only possible explanation is that they wanted to make an example of him. You are not supposed to touch a 24/7 holy cow .
It's also a sad day for the media fraternity because Kunte was being threatened of libel for making legitimate criticism about an issue of public concern. Freedom of speech is the foundation of a functioning democracy, and the law of libel shouldn't be used to stifle expression of an opinion that could have taken the debate forward. Of all pillars of democracy the media should be the first to recognises this right. The one to raise the pitch to the shrillest level when someone’s right to free speech feels threatened.
The criticism and scrutiny that NDTV and Barkha is now being subjected to in the blogosphere for its alleged highhandedness is also a pointer to the fact that the mainstream media is clueless about the power and opportunity of social media. They need to understand that journalism as defined by large media houses has entered a period of declining sovereignty. While it's true that mainstream media has attempted to interact with and adopt certain features of the social media they seem to be generally wary of bloggers and their growing influence in the media ecology.
I would like to quote more of Barkha to prove the point that NDTV’s action is a misadventure that need to be corrected. Or else the entire media stands the risk of playing into the hands of those who aspire to stifle it.
Responding to the criticism levelled against the NDTV coverage of the Mumbai attacks Barkha wrote: I believe that criticism is what helps us evolve and reinvent ourselves.
I believe in Barkha. I hope she walks the talk.
Thursday, January 1, 2009
India sleepwalks to total surveillance
It wasn't tough for a protagonist in a Kundera novel to figure out if he/she were living in a police state. Looking out of the apartment window they could see agents of the state keeping a watch over them from a car parked in the street round the corner. Sometimes shady characters broke in and rummaged through shelves looking for letters or diary notes. Their phones were wiretapped and there was absolutely no way of knowing if the friend they met for a drink last night was an informer or not.
It was our age of innocence and Kafka wasn’t thought to be a realist. Under repressive regimes people lived in constant fear, but the terror they felt and the machinery that enforced it was tangible.
Not any more. We live in a time when information about our personal lives and behaviour are being gathered, stored and shared by governments and multinational corporations on a scale that no one ever thought was humanly possible.
In the name of fighting terrorism governments across the world have been creating new regulations that infinitely augment the state power of surveillance with no meaningful public or parliamentary debate.
The Information Technology (Amendment) Bill, 2006 passed by the Indian Parliament recently allows the government to intercept messages from mobile phones, computers and other communication devices to investigate any offence. Not just cognizable offence, the kind you witnessed in Mumbai 26/11, but any offence.
Any email you send, any message you text are now open to the prying eyes of the government. So are the contents of your computer you surfed in the privacy of your home.
Around 45 amendments have been made to the original Act, which now treats both publishers of online pornography and its consumers on equal footing. A law so sweeping in its powers that it allows a police officer in the rank of a sub-inspector to walk in or break in to the privacy of your home and see if you were surfing porn or not. It’s the personal morality of the official that will decide whether the picture/content you were looking at was lascivious or appeals to prurient interest.
The amended Act also grants the state absolute power to block access to any website in the national interest. In short a total gag and surveillance act that doesn’t set any limits for law enforcers, or have inbuilt safeguards against misuse.
And if writing abstract legal language with hues of victorian morality can be considered an art form the architects of the new IT Act are nothing less than artists.
Thou shall not author a joke. Not even forward one
Any person who sends, by means of a computer resource or a communication device, — (a) any content that is grossly offensive or has menacing character; or (b) any content which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will... shall be punishable with imprisonment for a term which may extend to two years and with fine.
Thou shall not surf Bollywood news
Whoever publishes/ transmits/ causes to be published/ transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either prescription for a term which may extend to two years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
Thou shall not watch porn
If the material is sexually explicit act or conduct then the punishment on first conviction is imprisonment which may extend to five years and a fine which may extend to ten lakh rupees. In the event of second or subsequent conviction imprisonment may extend to seven years and fine to ten lakh rupees.
But one has to admit that there is concern on part of the government on what could be the impact of the law on art and literature. So section 67 does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form, provided it is in the interest of science, literature, art or learning or religion. That means M.F Hussein can't be framed under IT Act anymore, and that photos and videos are not considered art.
‘So what?’ is the familiar rhetoric. Why fear if you've got nothing to hide? Why should law abiding citizens be bothered about some 'inevitable invasion' into privacy in the wake of increasing terror attacks? After all the perpetrators of terror are known to use Internet and other modern communication tools to plan and execute deadly strikes like that happened in Mumbai.
There is only one answer and it is a Thomas Jefferson quote: Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
It was our age of innocence and Kafka wasn’t thought to be a realist. Under repressive regimes people lived in constant fear, but the terror they felt and the machinery that enforced it was tangible.
Not any more. We live in a time when information about our personal lives and behaviour are being gathered, stored and shared by governments and multinational corporations on a scale that no one ever thought was humanly possible.
In the name of fighting terrorism governments across the world have been creating new regulations that infinitely augment the state power of surveillance with no meaningful public or parliamentary debate.
The Information Technology (Amendment) Bill, 2006 passed by the Indian Parliament recently allows the government to intercept messages from mobile phones, computers and other communication devices to investigate any offence. Not just cognizable offence, the kind you witnessed in Mumbai 26/11, but any offence.
Any email you send, any message you text are now open to the prying eyes of the government. So are the contents of your computer you surfed in the privacy of your home.
Around 45 amendments have been made to the original Act, which now treats both publishers of online pornography and its consumers on equal footing. A law so sweeping in its powers that it allows a police officer in the rank of a sub-inspector to walk in or break in to the privacy of your home and see if you were surfing porn or not. It’s the personal morality of the official that will decide whether the picture/content you were looking at was lascivious or appeals to prurient interest.
The amended Act also grants the state absolute power to block access to any website in the national interest. In short a total gag and surveillance act that doesn’t set any limits for law enforcers, or have inbuilt safeguards against misuse.
And if writing abstract legal language with hues of victorian morality can be considered an art form the architects of the new IT Act are nothing less than artists.
Thou shall not author a joke. Not even forward one
Any person who sends, by means of a computer resource or a communication device, — (a) any content that is grossly offensive or has menacing character; or (b) any content which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will... shall be punishable with imprisonment for a term which may extend to two years and with fine.
Thou shall not surf Bollywood news
Whoever publishes/ transmits/ causes to be published/ transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either prescription for a term which may extend to two years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
Thou shall not watch porn
If the material is sexually explicit act or conduct then the punishment on first conviction is imprisonment which may extend to five years and a fine which may extend to ten lakh rupees. In the event of second or subsequent conviction imprisonment may extend to seven years and fine to ten lakh rupees.
But one has to admit that there is concern on part of the government on what could be the impact of the law on art and literature. So section 67 does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form, provided it is in the interest of science, literature, art or learning or religion. That means M.F Hussein can't be framed under IT Act anymore, and that photos and videos are not considered art.
‘So what?’ is the familiar rhetoric. Why fear if you've got nothing to hide? Why should law abiding citizens be bothered about some 'inevitable invasion' into privacy in the wake of increasing terror attacks? After all the perpetrators of terror are known to use Internet and other modern communication tools to plan and execute deadly strikes like that happened in Mumbai.
There is only one answer and it is a Thomas Jefferson quote: Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
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