Op EdsOP. ED.

In the 18th century, one of the social theorists, Jeremy Bentham, developed the concept of panopticon, which brought in an institutional design to establish control. While this shows that surveillance of any form is not a new phenomenon, recent technological developments have completely changed the surveillance architecture. It has paved the way for the development of surveillance tools that are more intrusive and damaging to our democratic safeguards.

In addition to targeted surveillance (which was debated as part of the Pegasus snoopgate controversy 1 , other forms of surveillance such as mass and lateral surveillance are performed in India, which equally curb the right to privacy and freedom of expression.

 

Surveillance as a craft has a long-standing history, with various social theorists contributing over time; thus, this article will explore recent developments in India regarding various forms of surveillance that call for robust reform.


Mass surveillance


In India, the State and non-State actors have been using various digital panoptican tools such as artificial intelligence, facial recognition, CCTV cameras, integrated database systems, social media analytics, etc., to monitor and surveil.

Recently, India bagged a couple of top ranks in the Forbes list[2] of most surveilled cities globally, where Delhi stood at rank one. While Delhi CM alluded to Forbes recognition, this would have a chilling effect on privacy and freedom of expression without surveillance reform. In addition, CCTV cameras equipped with other AI-based technology such as facial recognition have been extensively used in India to tackle various social problems despite global criticism on facial recognition malfunctions, accuracy rate and innate discrimination of minorities and women. Besides, it has been reported that drones with cameras are used for monitoring purposes, but it is unclear how video footage will be used later.

On the other hand, the State has made various efforts to integrate databases and analytics tools to monitor people and their actions. For instance, the Central Government has equipped a technology called Advanced Application for Social Media Analytics (AASMA[3]); this tool will aid both Central and State Governments to monitor social media. But in 2018 Supreme Court of India stopped a similar project of the Central Government titled social media communication hub (SMCH), stating it to be a step to the surveillance State and problematic in the absence of a data protection regime.

Similarly, as citizens use Aadhaar-based authentication systems for any service enrollment or transaction, the information on the authentication process, transaction details, etc., are recorded at a central database. While the Government states that profiling citizens enable better welfare delivery, it has been criticised for its potential to cause exclusion[4] and surveillance[5], which is not accounted for. Though Unique Identification Authority of India (UIDAI) has been commissioned as the custodian of Aadhaar data, it is also the regulator of Aadhaar infrastructure, which does not create any meaningful and independent accountability in case of misuse. Besides, in the Aadhaar judgment (2018)[6], while the Supreme Court provided constitutional validation to the Aadhaar scheme, it has also struck down various provisions on the grounds of proportionality, data security, and privacy. The judgment pushed for the development of a data protection regime and also struck down the provision on data sharing on national security grounds.

 


Targeted surveillance


Targeted surveillance in the form of interception has a long-standing history predating any of the recent technological developments. Under legal grounds of the Telegraph Act, 1885 [Section 5(2)] and Information Technology Act (Section 69), the Government can intercept, monitor, and decrypt any information for protecting sovereignty, national security, friendly relations with international States, public order, etc.

There are various non-State lawful interception systems[7] available in the Indian market which are installed into the networks of telecom services and internet services by the Government through the licence agreement. While most of the details on the operations of these systems are confidential, spy files[8] project by WikiLeaks, which created a revelation, revealed that the capacity of these Indian lawful interception systems is way beyond what is available publicly in terms of surveillance.

However, there are also other not entirely lawful interception mechanisms in the market, like Pegasus. The Pegasus controversy is not a new thing, and it first broke in 2019 when WhatsApp reported[9] that Pegasus targeted 1400 phone numbers of its users. While the Indian Government asserted to investigate this matter, the recent Expert Committee constituted by the Supreme Court on the Pegasus allegation[10] will be probing the steps/actions taken by the Government after reports were published.

In addition, like PRISM in the USA, in India, we have a similar system called Central Monitoring System (CMS) and it was implemented in 2015.[11] While the CMS system still relies on lawful interceptors for interception and monitoring, its operations highlight surveillance capacities as they cut the line of the process to automatically retrieve information from the network of telecom service providers or the internet without approaching them.

Besides, non-State actors like digital platforms perform targeted surveillance to promote business interest and to cater better service to the users without any legal grounds and guidelines for securing user privacy.

 


Lateral surveillance


While a traditional surveillance set-up involves two actors at different power levels i.e. the State or non-State actor can watch citizens; lateral surveillance[12] breaks this code by enabling peer-to-peer surveillance.

In response to the pandemic, the Government had resorted to various technological measures to tackle the spread of the virus and for administering the vaccination. One of the most sought out measures globally was the contact tracing app and quarantine monitoring apps. These apps can majorly cause lateral surveillance due to the high chances of data breaches[13]. In addition, at the aggregate level, these apps encourage “watch over others” culture, where the people from a particular area might watch out for the neighbouring areas, leading towards exclusion and other unintended impacts.

Contact tracing apps are new in the game; apps that stimulate lateral surveillance have been there for some time now. Some of the prominent lateral surveillance apps are HawkEye, C-Plan, RajCop Citizen, etc. Also, to monitor the digital public sphere, the cyber volunteers programme seeks citizens to report unlawful activities on the internet and social media.


Way forward


 

The Forbes list of most surveilled cities in the world shows that Indian cities have surpassed China in terms of the number of CCTV cameras installed. Being a democratic country, India surpassing/giving tough competition to an authoritarian country like China in terms of surveillance, questions the trajectory that India, as the largest democracy, wants to set for the future. Does India want to subdue its citizens or empower them?

 

While these monitoring mechanisms are instituted by State and non-State actors for different purposes, in the absence of surveillance reform and data protection, these new technological means subdue citizens by causing unaccountable surveillance, infringing citizens’ freedom of expression and privacy.

The Supreme Court of India delivered its judgment on K.S. Puttaswamy v. Union of India[14], declaring privacy as a fundamental right under Article 21 of the Indian Constitution. Therefore using this judgment as a substratum, comprehensive surveillance reform should be constituted, which gets India into the path of empowered citizenry where the right to privacy is secured from the interference of surveillance.

As the Expert Committee formed by the Supreme Court will recommend enactment/amendment to existing laws[15] around surveillance to secure privacy, it is important to have a separate/new surveillance legislation that is clearer, purposive, proportionate, and comprehensive (covering all forms of surveillance). The surveillance legislation should bring both State and non-State actors under its purview and demand a robust accountability mechanism that involves both parliamentary and judiciary oversight.

 


† Senior Research Associate at The Dialogue.

[1]The Pegasus Project (nd). Retrieved from The Guardian: See HERE.

[2] Delhi, Chennai Among Most Surveilled in the World, Ahead of Chinese Cities (2021). See Forbes India: HERE.

[3] Ranjini (2020), The Government of India is Monitoring our Social Media. See Logically: HERE.

[4] Falling through the Cracks: Case Studies in Exclusion from Social Protection (2021). See Dvara Research: HERE.

[5] Parthasarathy, S. (2018), Aadhaar: Enabling a Form of Super-surveillance. See The Hindu: HERE.

[6] K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.

[7] ​​SFLC (2019), Communications Surveillance in India. See SFLC: HERE.

[8] WikiLeaks (2011), The Spy Files. See WikiLeaks: HERE.

[9] Chishti, S. (2019), WhatsApp Confirms: Israeli Spyware was Used to Snoop on Indian Journalists, Activists. See The Indian Express: HERE.

[10] Ojha, S. (2021), BREAKING: Supreme Court Constitutes Independent Expert Committee to Probe Pegasus Snooping Allegations. See HERE.

[11] Centre for Internet and Society (2014), India’s Central Monitoring System (CMS): Something to Worry About? HERE.

[12] Andrejevic, M. (2005, Surveillance & Society), The Work of Watching One Another: Lateral Surveillance, Risk, and Governance. Retrieved from Surveillance & Society: HERE.

[13] Swaminathan, M. and Saluja, S. (2020), Essay: Watching Corona or Neighbours? Introducing “Lateral Surveillance” during COVID-19. Retrieved from Centre for Internet and Society: HERE.

[14] (2017) 10 SCC 1.

[15] AK, A. (2021), Pegasus: Members and Terms of Reference of the Committee Appointed by the Supreme Court. See HERE.

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: Sanjay Dhar, J., quashed a defamation complaint filed against the Editor-in-Chief of Republic TV, Arnab Goswami, and journalist Aditya Raj Kaul. The Bench observed,

“The accused/anchors have only stated the obvious. Anyone who possesses even elementary knowledge of who is who of Jammu and Kashmir, can name the Minister who was holding portfolio of works during the period referred to in the letter of Shri Khalid Jahangir.”

Naeem Akhter, senior member of the J&K People’s Democratic Party (PDP) had filed the defamation complaint against the petitioner alleging that a defamatory and malicious news segment was broadcasted by the petitioners on 04-07-2021, pertaining to a letter written by one Khalid Jahangir, member of Bhartiya Janta Party (BJP) to the Governor, levelling allegations of corruption and favouritism on the complainant as regards award of tenders and functioning of the Corporation.

According to the complainant, even though the letter did not make a mention of name of any person, yet the petitioners, while reporting, deliberately and intentionally mentioned the name of complainant, thereby, publishing direct imputations against him with a mala fide intention to cause irreparable damage to the reputation of the complainant.

The Bench observed that it was not in dispute that the complainant was holding the portfolio of Works Minister in the coalition Government of PDP and BJP when Mr. Khalid wrote a letter to the then Governor of Jammu and Kashmir. The Bench opined though, the letter did not name the Works Minister, who was at the helm of affairs at the relevant time, the dates to which reference was made in the letter clearly suggested that the Works Minister, referred to in the letter, was none other than the complainant. Therefore, the accused had only stated the obvious. Hence, merely because accused/anchors mentioned the name of the respondent in the programme may not be enough to impute mens rea to the petitioners that they wanted to harm the reputation of the respondent.

The Bench stated that the fact the reporters kept emphasizing the fact that their source of information was the letter in question and they go on repeatedly telling the viewers about the charges/allegations with each caption carrying question mark(?), thereby conveying to the viewers that the allegations/charges contained in the letter are yet to be established, the petitioners had while telecasting the programme, taken due care that was expected of a responsible news channel.

Accordingly, the Bench held that the ingredients of main Section 499 RPC were not made out from the contents of the complaint and the material attached thereto because the imputations which had been published by the channel of the petitioners had not originated from them but the originator of these imputations was someone else i.e., Mr. Khalid Jahangir who had written a letter containing allegations against the respondent to the Governor which found its way into public domain. Thus, the complaint and the proceedings emanating there from were quashed. [Aditya Raj Kaul v. Naeem Akhter, CRMC No.58 of 2019, decided on 13-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: R. A. Jan, Sr. Advocate, with M/S: Rajat Pradhan &, Aswad Attar Advocates

For the Respondent: Jahangir Iqbal Ganai, Sr. Adv. with Humaira Shafi, Advocate

OP. ED.SCC Journal Section Archives

Justice Prabodh Dinkarrao Desai was by far the finest Judge I have known in my four decades in the legal profession. He was true to his oath and lived by very strict principles which he expected others to follow. The foremost quality of Justice Desai was his fearlessness. When any Judge takes oath, he swears to work to the best of his ability without fear or favour, affection or ill-will. “Fear” was a word which did not exist in Justice Desai’s mind or dictionary. He worked tirelessly as a Judge and Chief Justice for 23 years, never seeking any reward for himself. A man who was elevated as a Judge of the High Court at the young age of 39 years could well have risen to the highest judicial post in the country if he had played his cards right. However, Justice Desai believed in doing the right things, and not in playing his cards right. He never pandered to those in power and sacrificed his future in his quest for truth. He may never have been elevated to the Supreme Court but today he is acknowledged and remembered as one of the finest Judges this country has ever seen.

 

Justice Desai was a Judge way ahead of his times. He used the Constitution as a tool to ameliorate the lives of the downtrodden. He was not bound by the rules of procedure and if, within the bounds of law, he could give relief to any petitioner before him he never hesitated to do so. Justice Desai was one of the pioneers of public interest litigation. He was an activist Judge who did not hesitate to take action even on letters written to him, if those letters disclosed violation of the fundamental rights of the citizens. It was he who said that the right to have motorable road is a fundamental right within the meaning of Article 21 of the Constitution. In some cases he entertained letters without disclosing the names of the persons who had written the letter. He was a messiah for the needy, the downtrodden and those whose fundamental rights have been curtailed whether it be in jail or outside. In one of his judgments he said “fundamental rights do not flee a person as he enters the prison”.1

 

READ COMPLETE ARTICLE HERE

———

* Valedictory address at the workshop of lawyers, organised by Praleen Public Charitable Trust and Lecture Committee at Ahmedabad, Gujarat on 7-9-2019.

**The article has been published with due permission of Eastern Book Company. Cite as (2020) 4 SCC J-14

Judge, Supreme Court of India.

1 Nawal Thakur v. Brahmu Ram, 1984 SCC OnLine HP 52 : 1985 Cri LJ 244.

2 ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

3 Queen Empress v. Jogendera Chunder Bose, ILR (1892) 19 Cal 35.

4 Id., p. 44.

5 Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom. 112.

6 R. v. Aldred, (1909) 22 Cox CC 1.

7 Niharendu Dutt Majumdar v. King Emperor, 1942 SCC OnLine FC 5 : (1942) 4 FCR 38.

8 Ibid.

9 King-Emperor v. Sadashiv Narayan Bhalerao, 1947 SCC OnLine PC 9 : (1946-47) 74 IA 89.

10 Romesh Thappar v. State of Madras, AIR 1950 SC 124.

11 State of Bihar v. Shailabala Devi, AIR 1952 SC 329.

12 Kedar Nath v. State of Bihar, AIR 1962 SC 955.

13 Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.

14 R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628.

15 Kedar Nath case, AIR 1962 SC 955, 969, para 26.

16 Balwant Singh v. State of Punjab, (1995) 3 SCC 214.

17 Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431.

18 (2016) 15 SCC 269.

19 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

20 Id, pp. 130-31, para 13.

21 Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587.

22 Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587, paras 15-16.

23 Peoples’ Union For Civil Liberties v. Union of India, 2019 SCC OnLine SC 1820.

Hot Off The PressNews

On the request of Twitter, Secretary Ministry of Electronics and Information Technology, Government of India held a virtual interaction with Ms Monique Meche, Vice President Global Public Policy and Mr Jim Baker Deputy General Counsel and Vice President Legal.

In view of the order issued by the Government of India directing Twitter to remove Tweets and accounts using hashtag related to ‘farmer genocide’ and accounts supported by Khalistan sympathizers and backed by Pakistan and blog post issued by Twitter.

Secretary told the Twitter representatives that in India, we value freedom and we value criticism because it is part of our democracy. India has a robust mechanism for protection of freedom of speech and expression that is very elaborately explained as Fundamental Rights under Article 19 (1) of the Constitution of India. But freedom of expression is not absolute and it is subject to reasonable restrictions as mentioned in Article 19 (2) of the Constitution of India. Various judgments of the Supreme Court have also upheld this from time to time.

He further highlighted that:  Twitter is welcome to do business in India. Due to India’s conducive business environment, open Internet and firm commitment to the freedom of expression Twitter as a platform has grown significantly in India in last few years. Twitter, as a business entity working in India, must also respect the Indian laws and democratic institutions. Twitter is free to formulate its own rules and guidelines, like any other business entity does, but Indian laws which are enacted by the Parliament of India must be followed irrespective of Twitter’s own rules and guidelines.

Secretary took up the issue of using a hashtag on ‘farmer genocide’ with Twitter executives and expressed strong displeasure on the way Twitter acted after an emergency order was issued to remove this hashtag and content related to that. Spreading misinformation using an incendiary and baseless hashtag referring to  ‘farmer genocide’ at a time when such irresponsible content can provoke and inflame the situation is neither journalistic freedom nor freedom of expression as envisaged under Article 19 of the Constitution of India. Despite the attention of Twitter being drawn to such content by the Government through a lawful process, the platform allowed the content with this hashtag to continue, which was extremely unfortunate.

Secretary reminded Twitter about the action taken by Twitter during the Capitol Hill episode in the USA and compared that with the disturbance in Red Fort in India and its aftermath. He expressed dissatisfaction over Twitter’s differential treatment in the two incidents. A deep sense of disappointment at seeing Twitter side not with ‘freedom of expression’ but rather with those who seek to abuse such freedom and provoke disturbance to public order, was conveyed to the Twitter representative.

Secretary also mentioned that revelations around a certain “Toolkit” has made it evident that a strong social media campaign was planned in a foreign country around farmers protest. Misuse of Twitter’s platform for execution of such campaigns designed to create disharmony and unrest in India is unacceptable and Twitter must take strong action against such well-coordinated campaigns against India, through compliance with the applicable law of the land.

Lawfully passed orders are binding on any business entity. They must be obeyed immediately. If they are executed days later, it becomes meaningless. Secretary expressed his deep disappointment to Twitter leadership about the manner in which Twitter has unwillingly, grudgingly and with great delay complied with the substantial parts of the order. He took this opportunity to remind Twitter that in India, its Constitution and laws are supreme. It is expected that responsible entities not only reaffirm but remain committed to compliance to the law of land.

The Govt. conveyed to the Twitter leadership that the manner in which Twitter officially allows fake, unverified, anonymous and automated bot accounts to be operated on its platform, raises doubts about its commitment to transparency and healthy conversation on this platform.

Twitter leadership affirmed their commitment towards following Indian laws and rules. They also expressed their continuing commitment towards building their services in India. They have also requested for better engagement between Government of India and Twitter’s global team.


Ministry of Electronics & IT

[Press Release dt. 10-02-2021]

[Source: PIB]

OP. ED.SCC Journal Section Archives

Abstract

The internet is one of the most used and innovative additions in the lives of people in this modern world. With the arrival of social media, the internet took socialising to a whole new level because initially it became the medium of sharing thoughts and soon grew into a medium of official communication between people and people, government and government and government and people. With all sorts of information on the social media, humour is one of the biggest user-generated and shared content. The internet brought the expression of humour in the form of satire, sarcasm, and wit with social media posts on the fingertips and memes all over the place, bringing out the dark sense of humour hidden in people as well. Getting in trouble for humour isn’t new, but with the vast reach of the internet, people posting from one corner of the country and someone getting immediately offended from another corner of the country has become common. This opens room for debate on the questions like ‘How can someone be arrested for a joke?’, ‘How can a joke be criminal?’, ‘Should law take social media seriously?’, ‘Is arresting for a social media post a violation of free speech?’ and ‘Do we really need laws to monitor everything on social media?’

The present elaborated discussion is a study of various cases in India related to humour and social media and observes how humour is used as a tool to commit crimes, and how laws are used against them, reasonably and unreasonably. It also observes the nature of people over the internet and how it affects their real lives. It also studies the laws present in India to analyse what the country requires in order to prevent the misuse of both, the laws and the social media, and in the end, concludes with a suggestion of separate Media Law and why it is necessary.

INTRODUCTION

Humour is to speech what salt is to food”.1

The internet is “a cooperative message-forwarding system linking computer networks all over the world”.2 The rise of the internet has given a new platform to the people and has grown enough to become a part of reality. From a common citizen’s social media profile to official government notifications being released on websites, with the passage of time, the internet not only remains a source of information and education, but also of global trade & commerce, of personal and professional connection, and of charity & crime.

The swiftness with which the internet has integrated into the lives of people, it would not be wrong to state that it is now an extension of their own personality. Due to the degree of anonymity and vast reach it provides, it brings out the untamed selves of people, which can be closely associated with what Sigmund Freud referred to as the Id,3 making the internet the “Wild West”.4 “Researchers assume that analysis of comic texts provides us with important insights about what is lurking in the social mind behind the façade of platitudes, conventions, and political correctness”.5 One of the basic reasons behind this is that, over the internet, there exists a very low chance of face to face backlash. Even though countries across the world have taken steps to counter it,6 a complete success in preventing Cybercrime is nowhere in sight.

Along with all types of content, the internet has now also become a platform for sharing humour in an electronic form, which can be done in the form of texts, images, videos or other formats. “Rather than light-hearted entertainment, jokes are in fact important arenas in which sensitive and troubling issues are processed and negotiated”.7 Sigmund Freud happens to be the most important authority on jokes and he called them “a combination of [comic] technique and [humorous] thought”.8 Another popular term on the internet in terms of humour is ‘Memes’. The term meme was coined by Richard Dawkins in his book ‘The Selfish Gene’. The Oxford Dictionary defines meme as “An element of a culture that may be considered to be passed on by non-genetic means, especially, imitation”.9 The term is basically associated with pictorial or video jokes, perhaps because they (as a form of presentation of humour or idea), grew on the internet the most, where they spread, most of the times as a trend, through immediate sharing or imitation.

[Read more]


Note: This Article was first published in RMLNLU CMET Law Journal 6 CMET (2019) 77.  The extract has been reproduced with the kind permission of RMLNLU.

* Student, BA LLB (Hons), KIIT School of Law Bhubaneswar, Odisha.

1 ‘Political Satire in Modern India’ (The Hindu, 6 April 2018) <https : //thehindu.com/thehindu/lr/2003/04/06/stories/2003040600010100.htm.> accessed 14 January 2019.

2 Douglas A Downing and others, Dictionary of Computer and Internet Terms (10th edn, Barron’s Educational Series Inc US 2009) 256.

3 Sigmund Freud, The Ego and the Id (first Published 1923, Courier Dover Publication 2018) 8.

4 Megan Carpentier, ‘Online Abuse : How Different Countries Deal with It’ (The Guardian, 12 April 2016) <https : //theguardian.com/technology/2016/apr/12/online-abuse-how-harrassment-revenge-pornography-different-countries-deal-with-it.> accessed 15 January 2019.

5 Limor Shifman and Dafna Lemish, ‘“Mars and Venus” in Virtual Space : Post-feminist Humor and the Internet’ (2011) 28 (3) Critical Studies in Media Law 253, 254.

6 The Guardian (n 257).

OP. ED.SCC Journal Section Archives

CNLU_LJ_6_2016_17_1_1.png

(Let noble thoughts come to us from the universe)

Writing in 1859 J.S. Mill in “on liberty” emphasized that ‘the only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm’… In the part which merely concerns himself, his independence is of right absolute over himself, over his own body and mind, the individual is sovereign. Yet whatever mischief arises from their use, is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions.

Content and viability are essential for the assertion of Right in the wider sense. Content includes Ethical assertion which forms the critical importance of certain freedoms viz. freedom from (torture) and correspondingly about need to accept some social obligation to promote or safeguard these freedoms. Viability includes Open impartiality or open and informed scrutiny. Viability in impartial reasoning is central to the vindication of rights even if such reasoning is ambiguous or dissonant as in the case of American declaration, French Declaration, Universal Declaration of Human Rights. The focus is on fresh legislation.

The acceptance of a class of human rights will still leave room for further discussion, disputation and argument that is indeed that nature of discipline. The validity is ultimately dependent on the presumption of the claims of survivability in unobstructed discussion. It is extremely important, as Prof. Sen puts to understand this connection between human rights and public reasoning especially in relation to demands of objectivity.

The universability of human rights relates to the ideas of survivability in unobstructed discussion – open to participation by persons across national boundaries. Partisanship is avoided not so much by taking either a conjunction, or an intersection, of the views respectively held by dominant voices in different societies across the world … but through an interactive process, in particular by examining what would survive in public discussion, given a reasonably free flow of information and uncurbed opportunity to discuss differing points of view.

Read more… 


[This Article was first published in CNLU Law Journal CNLU LJ (6) [2016-17] 1. It has been reproduced with the kind permission of Eastern Book Company]

* Pro-Chancellor-Emeritus/Vice-Chancellor, Chanakya National Law University, Patna.

** Dean & Principal of New Law College, Bharati Vidyapeeth University, Pune.

3 Sardar Bhagat Singh was hanged on midnight of 23rd March 1931, thus advancing it from the dawn of 24th March, 1931. Martyr Bhagat Singh was 23 years at the time where he kissed the noose as it was lowered to his head.

4 Shreya Singhal v. Union of India(2015) 5 SCC 1.

5 AIR 1952 SC 196.

6 AIR 1967 SC 1643.

7 AIR 1952 SC 196.

8 (1973) 4 SCC 225.

9 (2005) 8 SCC 534, 563.

Hot Off The PressNews

In a press statement released on 26th September, the Editors Guild of India led by President Seema Mustafa, General Secretary Sanjay Kapoor and Treasurer Anant Nath, has expressed pain and anguish over hundreds of FIRs being filed against journalists of Republic TV. The said channel is being probed for allegedly manipulating TRPs and spreading discontent against the Mumbai Police.

Victimization of Journalists is Wrong

The Guild has emphasized that it does not wish to influence the probe by the authorities but the victimization of the journalists must stop.  Even if they recognize that the probe has potential to bring in much needed transparency on the issue of TRP manipulation and proceeds of crime, even then victimisation of journalists is not warranted.

Limits of Investigative Journalism being crossed

The Guild also expressed displeasure over Republic’s high-strung conduct covering the unfortunate demise of Sushant Singh Rajput, especially the harangue directed at actor Rhea Chakraborty. They said that the pertinent questions asked by the Bombay High Court to the channel, such as “Is this part of investigative journalism? Asking the public about their opinion on who should be arrested?” must be addressed by all media.  Also, they noted that the Court wondered whether the media was encroaching upon the domain of the police. Similar reservations about Republic’s conduct has been expressed even by the News Broadcaster’s association (NBA) that disagrees with it’s reporting.

Both Media and Police Should Act Responsibly

The police should ensure that media rights are not suppressed by arrest of journalists and the channel should ensure that collective credibility of media should not be affected and the safety of journalists are not compromised by such reporting. Right to free speech does not mean a licence to promote hate speech. It is important to maintain balance between media freedom and the imperative for it to reside within the rule of law.

Ed. Note: Bombay High Court has been wrongly identified as Mumbai High Court in the statement


*Associate Editor, EBC Publishing Pvt. Ltd.

Case BriefsInternational Courts

European Court of Human Rights: The Seven-Judge Bench comprising of Yonko Grozev (President), Angelika Nußberger, André Potocki, Síofra O’Leary, M?rti?š Mits, Gabriele Kucsko-Stadlmayer, and Lado Chanturia held that there was no violation of Article 10 and 6 of European Convention on Human Rights as claimed by the complainant in the facts of the case presented before them.  

On 28-01-2010, the day after Holocaust Remembrance Day, Mr Pastörs, then a member of the Land Parliament of Mecklenburg-Western Pomerania, made a speech stating that “the so-called Holocaust is being used for political and commercial purposes”. In August 2012 he was convicted by a district court for violating the memory of the dead and for intentional defamation of the Jewish people. In March 2013 the regional court dismissed his appeal against the conviction as ill-founded. After reviewing the speech in full, the court found that Mr Pastörs had used terms which amounted to “denying the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich”. The court stated he could not rely on his free speech rights in respect to Holocaust denial. He lodged an application with the European Court of Human Rights on 3-07-2014 relying on Article 10 (freedom of expression) and Article 6 § 1 (right to a fair trial). He alleged that the proceedings against him were unfair because one of the judges on the Court of Appeal panel was married to the judge who had convicted him at first instance and could therefore not be impartial.

Freedom of Expression:

The ECHR examined his complaint under both Article 10 and Article 17 (prohibition of abuse of rights). It reiterated that Article 17 was only applicable on an exceptional basis and was to be resorted to in cases concerning freedom of speech if it was clear that the statements in question had aimed to use that provision’s protection for ends that were clearly contrary to the Convention. The ECHR noted that the domestic courts had looked at the speech in full and had found that the applicant had planned his speech in advance, deliberately choosing his words and resorting to obfuscation to get his message across, which was a qualified Holocaust denial showing disdain to its victims. ECHR held that Mr Pastörs had intentionally stated untruths in order to defame the Jews and the persecution that they had suffered. The interference with his rights also had to be examined in the context of the special moral responsibility of States which had experienced Nazi horrors to distance themselves from the mass atrocities. His conviction was therefore proportionate to his actions. They found that there was no violation of Article 10 and rejected the complaint as manifestly ill-founded.

Right to a fair trial:

The ECHR held that the involvement in the case of two judges who were married, even at levels of jurisdiction which were not consecutive, might have raised doubts about one of the judge’s lacking impartiality. It was also difficult to understand how the applicant’s complaint of bias could have been deemed as inadmissible in the Court of Appeal’s first review. However, the issue had been remedied by the review of Mr Pastörs’ second bias complaint, which had been aimed at all the members of the initial Court of Appeal panel and had been dealt with by three judges who had not had any previous involvement in the case. Nor had the applicant made any concrete arguments as to why a professional judge married to another professional judge should be biased when deciding on the same case at a different level of jurisdiction. There were thus no objectively justified doubts about the Court of Appeal’s impartiality and there had been no violation of Article 6.

Judges Grozev and Mits expressed a joint dissenting opinion. [Pastörs v. Germany, Application No. 55225 of 14, decided on 03-10-2019]

Hot Off The PressNews

Supreme Court: The Court has stayed the Meghalaya High Court judgment holding The Shillong Times editor Patricia Mukhim and publisher Shoba Chaudhuri guilty of contempt. The High Court had also imposed a fine of Rs. 2 lakhs each on both the contemnors.

Backdrop

The Government of Meghalaya decided to withdraw the protocol services provided to retired Judges and their family members without consulting the High Court. The Chief Justice convened a meeting of Government Officers concerned wherein they were asked to immediately restore the protocol services to retired Judges and their family members. However, no action was taken for 2 months and consequently, a suo motu proceeding was endorsed to the Court to take up the matter. Notice was issued but since the Government remained silent, the Court passed the necessary order ordering the Government to comply with its directions within a month. This order is at heart of the controversy. Report, dated 10-12-2018, captioned “When Judges judge for themselves” were published in Shillong Times, an English daily newspaper. Referring to the aforementioned order, the Report stated,

Justice SR Sen, who is set to retire in March, wanted several facilities for the retired chief justice and judges, their spouses and children“.

Furthermore, Patricia Mukhim took the help of social media where, according to the Court, she even went to extent of mocking judicial system of this country and passed certain remarks against the Amicus Curiae which, according to the Court, insulted members of the Bar.

Meghalaya High Court Judgment

Exercising power under Article 215, the Court sentenced the contemnors to sit in the corner of the Courtroom till rising of the Court. A fine of Rs 2 lakhs each was also imposed which was to be deposited with the Registry within a week. Further, “in default of payment, both the contemnors will have to undergo 6(six) months simple imprisonment and the paper so-called ‘Shillong Times’ will automatically come to an end (banned)”

The furious Court said:

“We would like to ask whether the contemnor, Patricia Mukhim wants to control the judiciary as per her desire and will? If it is so, she is very much wrong”. 

The Bench of Mohammad Yaqoob Mir, CJ and S.R. Sen, J, further said:

“The sacred duty of the media is to publish correct news, so that the actual fact reaches the people. They are not at all entitled to write as they like and slur the image of an individual or institution. The contemnors here must remember that though, they have the right to publish news and sell their papers, but it is limited, subject to their duties. They are not supposed to file any report without understanding the background of the case or verifying the truth. Only true news should be published not the false report and if anybody violates, they are liable for defamation and contempt of Courts”.

Statement Issued by Editors Guild of India

Deeply distressed over the Meghalaya High Court judgment, the Editor’s Guild of India issued a Statement where it urged the judiciary to exercise its constitutional powers with utmost caution and care so that the role of a free media in a democracy is duly respected. It said:

“It is ironical that the judiciary which should uphold press freedom has instead issued an order that militates against freedom of expression.”

Case BriefsHigh Courts

Rajasthan High Court: While deciding the instant petition filed by director Sanjay Leela Bhansali seeking to quash the FIR filed under Sections 153A, 153B and 295A IPC, against him and the actors of his controversial magnum opus ‘Padmaavat’, the Bench of Sandeep Mehta, J., allowed the petition thus quashing the impugned FIR filed against the Director and actors Deepika Padukone and Ranveer Singh. Having analysed the movie in entirety, the Court held that there was not even a single scene therein which could be considered as amounting to one which can hurt the feelings of any race, caste, creed or religion. Observing that art is the most creative and beautiful form of expression conferred upon human beings, the Court stated that the protests against the film simply manifests that persons with hidden agendas have acted irresponsibly on basis rumors and have been planning to hinder its screening in defiance to the directions of the Supreme Court, thereby depriving the people of India in general and of Rajasthan in particular, from witnessing a glorious tribute to the valiant history of Rajasthan.

The film Padmaavat (earlier Padmavati) has been surrounded by controversies ever since the commencement of the shooting. Various Rajput community groups had alleged that the film distorts the history of the legendary queen of Chittor, Padmavati who had committed ‘Jauhar’ in order to protect her honour from the invaders and therefore the film hurts the sentiments of the community. Many cases and FIRs (including the present impugned FIR) had been filed against the director and the cast; and States of Rajasthan, Haryana etc. imposed a ban on the film’s screening despite the film being cleared by the Censor Board. Ultimately the Supreme Court in Viacom 18 Media Pvt. Ltd. v. Union of India, (2018) 1 SCC 761, stepped in to put a stay on the ban imposed by some of the states and clearly directed them to maintain law and order in their respective States and allow protection to the multiplexes and theaters screening the film and also to the viewers.

In order to test the veracity of the respondent’s claim, the film was screened for the perusal of the Court as primary evidence, after which it was noted that allegations leveled against the film were baseless. The Court firmly stated that, “portrayal of the characters of Padmavati and the King of Chittorgarh as depicted therein would fill the heart of every citizen of this country more particularly those of Rajasthan and Mewar with pride rather than creating a feeling of hatred or abhorrence”. Lamenting upon the fact that what should been a cause of celebration by viewing a magnificent display of the glorious history of Rajputana culture, has been turned into a nasty dispute arising from an unlawful motivated step taken in utter haste. [Sanjay Leela Bhansali v. State of Rajasthan, 2018 SCC OnLine Raj 283, decided on 06.02.2018]

 

Case BriefsHigh Courts

Bombay High Court: In the recent judgement, the Division Bench comprising of S.S. Shinde and Mangesh S. Patil, JJ., while deciding a petition under Article 226 of the Constitution of India declined to ban the release of the film ‘Dashkriya’ which was scheduled to be released on 17-11-2017.

The submissions made by the plaintiff were that the movie is blasphemous and has hurt the religious sentiments of the Brahmin community especially the Kirwant community who perform the posthumous religious rights and rituals after the cremation and has been specifically called “Dharmabhrashth”. Further submissions include that the sentiments of the barber community were also hurt due to the slang languages used and the trailer of the film threatens the fabric of social cohesion under the guise of freedom of speech and expression.

The Court rejected that there is a violation of fundamental rights as guaranteed under Articles 25 and 26 of the Constitution  as there is no order prohibiting the persons from exercising their right to freedom of religion. Relying upon the Supreme Court judgement in Nachiketa Walhekar v. Central Board of Film Certification [WP (Civil) No. 1119 of 2017, order dt. 16.11.2017]  the Court held that courts should be slow in interfering with matters where Central Board for Film Certification (CBFC) has granted the permission to release a film and that, a person has freedom to express himself in a manner which is not prohibited in law and such prohibitions are not read by implication to curb the limits of an expressive mind. [Sameer Shankarrao Shukla v. The State of Maharashtra,  2017 SCC OnLine Bom 9089, decided on 17-11-2017]

Case BriefsHigh Courts

Madras High Court: While deliberating over the conflict between freedom of expression of a writer and offending moral and religious sentiments of the public, the Division Bench of S.K. Kaul, C.J., and Pushpa Sathyanarayana, J., upheld the artistic freedom of the writer under Art. 19(1)(a) of the Constitution and further set out guidelines for the State for dealing with similar cases, and also directed the setting up an expert body. In the judgment for the Tamil novel, ‘Madhorubagan’ by Perumal Murugan, the Court stated that there is no necessity in warranting any action against the author or the publisher of the novel. .

The award winning novel which revolves around the trials and tribulations of a childless couple, and other ancient social customs of the town of Tiruchengode (the author too belongs to Tiruchengode), came under fire from the public due to its alleged obscene contents offending the religious sentiments of the Tiruchengode townspeople. Certain factions raised their voice against the author, that he had defamed the womenfolk and the community of Tiruchengode. The virulent campaign did not die down even after the author issued a written apology and volunteered to withdraw all copies of the novel. Peace talks were held under the directions of the District Revenue Officer and the Inspector of police, where the author had to sign an “unconditional apology’. Agonized by the events, the author wrote his own “obituary as a writer” on social media, volunteering to withdraw all copies of his books and asking people who bought his books to burn them while he would make good the loss suffered.

A batch of petitions were filed in the matter, where the ‘opponents’ demanded a ban of the novel on the grounds of obscenity, defamatory and hurtful to the religious sentiments of townspeople, and demanded that criminal proceedings be initiated against the author and publisher. While the ‘sympathizers’ pleaded to uphold the creative freedom of the writer.

Perusing the controversy and the arguments for and against the book, the Court, referred to the decisions in Phantom Films Pvt. Ltd. vs. The Central Board of Film Certification, 2016 SCC OnLine Bom 3862 and M.F. Hussain v. Rajkumar Pandey 2008 SCC OnLine Del 562  the bench held that the ‘community standard test’ should involve standard prudence and not sensitivity, and the freedom of speech of an artist must be protected. The Court in its judgment showed concern over the State’s management of the situation and even set out guidelines urging the Government to step in to protect the artictic freedom of the people. It was further observed that extra-judicial, casteist and religious forces dictating the creativity of authors and writers should not be allowed. It was directed that the Government should constitute an expert body consisting of learned academicians etc. so that they can deal with situations arising from such conflicts of views. Following the references and the observations, the Court held that there was no ground for police against the author and/or the publishers. The bench concluded the 160-paged judgment quoting that “Let the author be resurrected to what he is best at. Write.” [S. Tamilselvan v. Government of Tamil Nadu 2016 SCC OnLine Mad 5960, decided on 05.07.2016]