What if justice needs an exception to law?

Story link: http://ibnlive.in.com/news/gujarat-hc-rejects-abortion-plea-of-28-weeks-pregnant-rape-survivor/540171-3-238.html

Judgment link: http://indiankanoon.org/doc/156331215/

Read the two links above.

A woman is raped repeatedly, gets pregnant, wants to get rid of the unborn child, moves the court, the court says, no, she will have to bear the child, howsoever traumatic the experience of such  child-bearing is.

The woman has the right to abortion as the constitution protects her right to liberty and privacy. But then, she has to contend with the right to her safety and the right to life of the unborn child as well.  

That the woman does not want the child which she thinks is the fruit of rape is of no consideration under law when she fails to contend with either of these rights. That’s the law.

Had the woman moved the court before the foetus completed 20 weeks of existence, the law would have agreed with her and upheld her right to abort.

Once the limit of 20 weeks, as stipulated in the Medical Termination of Pregnancy Act, 1971, is achieved the foetus in the eyes of the law has achieved a status of “viability”, to borrow the word from American jurisprudence.

By the time the woman moved the court and the case eventually reached the ruling stage, she was 28 weeks pregnant. So, as per the Medical Termination of Pregnancy Act, she could no longer abort. Under this law, abortion is legal till up to 20 weeks of pregnancy.

After this limit, it is presumed, backed by medical research, that a pregnant woman’s life can be in danger if abortion is resorted to. It is also presumed, backed more by belief, that the foetus becomes a living being only at the end of the 24^th week. That means, the foetus has the right to life after the 20^th-24^th week of existence in the mother’s womb.

While there are several scientific findings about the dangers of abortion in late pregnancy, there is merely personal or religious belief to attest to whether a foetus has a right to life and if so, whether from inception or at a later stage.

To digress a bit, American philosopher and expert in constitutional law, Ronald Dworkin, famously analysed the question of the right to life of  a foetus in terms of its “interests”.

According to Dworkin a fetus has no interest till the completion of 24 weeks of pregnancy. Dworkin says the foetus has an interest from the beginning of the third trimester. His logic is that a foetus cannot feel pain in the early stages of pregnancy as its brain is insufficiently developed before then. He bases his logic on the premise of scientists the brain of a foetus is developed to feel pain from the 24^th-26^th  week. So Dworkin argues that whether or not an abortion is against the interest of the foetus depends on whether or nor the foetus it has interests.

The direct interpretation is that as the foetus does not have a developed brain before this period, it does not have an interest before that period and therefore an abortion of that foetus before that period is not against the interests of such a foetus. Conversely, the foetus develops an interest after the 24^th-26^th week because its brain develops to a sufficient extent and therefore it has a right to life.

By extension, it is medically acknowledged that after this period, an abortion can endanger the mother’s life.

More or less, these twin grounds are accepted in those countries where abortion is legal before the end of the 24^th week of pregnancy. In India, too, there is a proposal to extend the 20-week limit to 24 weeks.

In the case of this woman, Justice JB Pardiwala of the Gujarat high court, though not really convinced of the rape which he did not allow to hinder his ruling, said he could not change the law.

In his ruling, the judge referred to the entire gamut of legal discourse and interpretative analysis on abortion and rights of both the mother and the foetus but his ruling limited itself to one, single point of law: The expiry of the 20-week limit for legalized abortion.

I quote from the judgment:

“I am conscious of the fact that to carry a child in her womb by a woman as a result of conception through an act of rape is not only extremely traumatic for her but humiliating, frightening and psychologically devastating and as a human being, more particularly in the Indian society she becomes an object of scorn and ostracisation. (emphasis mine) ….I may only say having regard to the peculiar facts and circumstances of the case that the applicant will have to bravely go ahead with the pregnancy and when time comes, she should deliver the child. I am conscious of the fact that it is easy for a judge to say so in his judgment because it is ultimately the applicant who will have to face the hard days ahead, (emphasis mine) but as observed above, howsoever harsh one may find the law, yet it remains the law and one has to respect it. (emphasis mine) She must understand that termination at this stage will put her own life in peril.”

Having gone through the judgment, it can be said it is the product of a progressive mind who is conscious of the impact of the limitation of this law on the woman.

But try telling this to that woman.

It is she who was raped (the investigation to conclusively prove rape is still going on at the time of writing).

It is she who became pregnant. It is she who did not want that child.

It is her husband who told her he would throw her out of their house if she bears that child.

It is she who hears the neighbours’ taunts, her in-laws’ grunts.

It is she who is now told to grin and bear the trauma of her rape.

It is she who is now forced to give birth to the child.

It is she who after child-birth will be squeezed between the natural pangs of a mother and the tearing hurt of a rape victim.

The rapist did not leave her with a choice.

Her family and friends never gave her a choice.

The law of the law did not have a choice.

What is she more a victim of – the crime or the justice?

A law which cannot accommodate the angst of a victim is not universal in nature. At the same time, no law can ever bring every human circumstance under its scope. It is when law faces the exceptions that the custodian of the law is put to the ultimate test: How to be imparting justice and importantly, ensuring that the justice is just.

Post-Script: The woman’s husband says he will move the court immediately after the child is born. The child will now inherit its mother’s trauma and humiliation.  

Happy Easter, Justice Kurian Joseph

It is only coincidental that Justice Kurian Joseph is a Christian.

His religious affiliation has nothing to do with him being a judge.

His letter to the Prime Minister expressing his inability to attend the judges conference on Friday – which happened to be the Good Friday – and the dinner to the visiting judges on Saturday has nothing to do with the duties he discharges as a judge.

His submission in his letter – “I regret my inability to attend the event as the conference coincides with the Good Friday ceremonies” –  reflects his personal position vis-à-vis the issue at hand and is protected by the right to free speech and right to religion provisions of the Constitution.

In any case he has denied any controversy in the matter. To quote the Indian Express, Justice Joseph said: “I am deeply hurt. It is not about, and should never be about, individuals, judges or otherwise. It was not about me or the other judges. When I wrote that letter to the CJI, I raised concerns only in the interest of the secular nature of this country and its social fabric, which we all are obligated to maintain as our constitutional duties.”

Yet, there is an issue.

As a journalist, I can critically analyse a judgment of the court but without attributing motives to the judge(s) passing that judgment. In the present case, however, the issue relates to something that happened outside the hallow chambers of the court, relates to a judge’s personal submission. I am not a student of law but common sense tells me that as a journalist the judge’s letter along with the judge’s personal beliefs are open to analysis.

However, that is not my motive. For, it is a personal statement and as long as it does not fall foul of the Constitutional provisions it remains what it is: a personal statement.  I wouldn’t allow anyone to question my personal views so why should I extend the same courtesy to another person?

As I said, there is an issue.  For me, it is of  much larger significance than the holding of an event on a public holiday.

It has to do with us, as citizens of this country, and our value system.

As we force the government to let go of its hold over our institutions, to unshackle our institutions and developmental processes from the system of the “raj”, we should take a pause and ask ourselves: Should we force our way all the way so that we determine our developmental path with as much freedom as we do with our personal political, social and religious beliefs?

If yes, then we should demand of the government that while de-licensing the critical routes for growth the government also unshackle its hold over the principle of secularism.

The good judge Joseph writes to the Prime Minister: “…being the guardian of Indian secularism, I request your honour to kindly have in mind these concerns while scheduling events and benevolently show equal importance and respect to the sacred days of all religions which are also declared as national holidays.”

He goes on to pass on his advice: "Irrespective of the religion, Diwali, Holi, Dussehra, Eid, Bakrid, Christmas, Easter, etc, are great days of festival celebrations in the neighbourhood….Your good self would kindly appreciate that no important programmes are held during sacred and auspicious days of Diwali, Dussehra, Holi, Eid, Bakrid, etc, though we have holidays during that period as well." 

What flows from this quotation is that evidence of Indian secularism lies in the fact that major events of all religions are declared holidays in the country.

But evidence of Indian secularism can also be derived from the fact that no religious event is declared a holiday in this country.

Both conditions are secular in nature, without getting too argumentative, isn’t it?

If there were to be 15-20 less holidays per year, we would be that much more productive, for instance disposing off pending backlogs in government departments and, of course, the courts?

Let me address a second issue arising out of the quotation above. Justice Joseph has left the phrase “no important programmes” clouded in ambiguity. I do not recall the Indian army taking leave during any of these religious holidays during the Kargil war. In fact this Good Friday, the army jawans in Tirap district of Arunachal Pradesh spent the entire day trying to track NSCN insurgents who had killed three jawans the previous day.

Nor do I recall any surgeon refusing to do a surgery on a religious holiday, or a pilot refusing to fly on such-and-such day. The loading and unloading of ships, tankers, rakes and trucks does not stop for any day. In private enterprises, holidays are opportunities for the top bosses to meet informally to discuss business strategies.

My daughter gets additional homework from school to be done during these holidays. She hums and haws a bit, but does not refuse to finish off her homework during her religious holidays.

As a country we talk of competing with China. In reality, we are close to some despondent nations insofar as our work attitude is concerned. We are lazy. We patronize the ”jugad”. We need an excuse to sit at home. We love to talk a lot. Our logic strains to lead us into a comfort zone, not out of it. These are not qualities of a nation on the move. We are not improving the quality of secularism by not intending to work on a religious holiday. We do not have a professional attitude to growth so we do not understand what holidaying, as in a necessary break from work, is.

How many days do we Indians enjoy our official/religious/secular/whatever holidays? Close to around 50? Add to that the holidays our organizations allow us as well as the Saturdays and Sundays and compensatory offs and so on. The figure creeps up to over a 100 days in a year. For nearly a third of the year we are off work as it is. And we have justifications for each of  these days: Oh, this is my casual leave, this is my sick leave, this is my compensatory off, this is my religious holiday……

It is not that the government has been blind to this reasoning. In fact the last two central pay commissions suggested that all central government holidays on religious festivals be abolished. Instead, they recommended increasing the number of restricted holidays, depending on one’s religious persuasion, to many as eight. The government never accepted or intended to accept these recommendations.

Why? Because, politics in India is all about ensuring that the veneer of secularism is never torn to expose the real us. It is not that we tolerate one another and so we can be called secular. It is that we have to be secular so we have to tolerate one another. That is the deepest truth we carry with us. What’s worse, we never think of it as a burden on our conscience.

Take for example, the case of the United States. The federal government has a list of 10 public holidays – New Year’s Day, Martin Luther King Jr Day, President’s Day, Memorial Day, Independence Day, Labour Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day. Good Friday is not a federal holiday, though it is a state holiday in some states.

In one of the most celebrated cases on secularism in the USA, an Indiana state employee sued the state’s Governor in 1993 for giving employees a holiday on Good Friday. I quote from a website the questions the suit raised: “Can the government take a religious holiday and make an official state holiday out of it? Is it an establishment of religion when a religious holy day becomes an official state holiday? Good Friday is a Christian Holy Day which many Christians would surely like to have off, but does that mean that governments should grant it official recognition over and above the holy days of other religions?”

(http://atheism.about.com/library/decisions/holydays/bldec_BridenbaughOBannon.htm)

A US circuit court of appeals ruled in 1999 in the Governor’s favour, but pointed out that a paid off day can be given on a religious holiday as long as the state can provide a “valid secular purpose that coincides with the obvious, religious purpose of the holiday”.

In what came to be known as the Bridenbaugh v. O'Bannon case, the court observed the state did have secular purposes: “Indiana has officially stated that it continues to recognize Good Friday as a legal holiday in order to provide a spring holiday to state employees during a time period in which there would be over four months without a holiday. Indiana also presented evidence that it believes that it serves its interests as an employer to give generous holidays - including the Good Friday holiday - because holidays bolster employees' efficiency and morale. Additionally, Indiana submitted evidence that Good Friday is a good Friday for a long weekend, not only because it falls during a vacation-vacant period, but also because over thirty percent of the schools in Indiana are closed on Good Friday, and because forty-four percent of employers in a nine-state region, including Indiana, allow their employees to take Good Friday as a holiday.”

In India, we circumvented such public debates, even litigations, on the issue of religious holidays by simply declaring all major religious days as public holidays. That’s our brand of secularism. 

Tirap: Is it a which, what, who or where? Or is it simply remote?

My fellow journalist Shiv Aroor posted on FaceBook today:

“You probably didn't hear about this today. Too remote for anyone to care either. 3 Army jawans ambushed, killed by NSCN terrorists in (Tirap district of) Arunachal Pradesh today:
Havildar Sanjiv Kumar
Havildar Parmal Singh Gujar
Havildar Charan Singh”

PS: Parenthesis mine.

Dear Aroor:

Eating Momos in Delhi doesn’t make one a lover of the north-east. Just as consciously refraining from using certain pejorative terms to describe people from the north-east doesn’t make one secular or bring one closer to them. Terming some of these people as terrorists displays the inherent elitism in us, belonging to the Indian “mainland”.

No wonder the north-east is “too remote for anyone to care either”.

Tirap is not too remote. It is around 100 kms from Dibrugarh. On the map it looks dauntingly distant, though. Tirap is a lovely place. Greenery all over, the woods so thick with underbrush and foliage hiding the sky, little streams meandering all over. Smalls hills undulate for miles, the cleavages so thick with vegetation the valleys beneath remain hidden.

Not an easy job to be there when all woods and forests look the same, the villages are not dissimilar, and it is difficult to distinguish between a Nocte or a Wancho. It is this remarkably indistinguishable nature of the habitation and the inhabitants that is both the boon and bane of the people of Tirap and nearby areas, whether neighbouring Assam, Nagaland or Myanmar.

It is an old Naga political thought that the tribes the people of Tirap belong to are essentially Naga in origin and therefore Tirap and its adjoining areas in India and Myanmar should rightfully belong to a Greater Nagaland called Nagalim.

They have been at it, using non-violent and of-late violent methods, for nearly a century now. We have the British to thank for identifying scores of tribes in this region by the umbrella term “Naga”. The British were not original. They merely borrowed the name from the Buranjis – documented chronicles – left by the Ahoms, who came from northern Myanmar and entered Assam via Tirap where they had to clash with the local tribals – the “Nagas” – for a very long time.

As the Ahom rule weakened and the British replaced them as new rulers, the “Nagas” faced a new threat. They were wary of the white-skinned people who were impatient to subjugate the tribals and brooked no indiscipline from them. This led to unrest and skirmishes became routine.

Things took a turn for the worse in 1857. On February 1 that year a British party reached a Wancho village of Ninu in Tirap. Their objective was to survey the region. But their high-handed attitude turned the exercise into a bloody confrontation. The British soldiers were contemptuous of the tribals. They made no attempt to talk to the village elders or understand local customs. It so happened that the village chief had just died and was being mourned. A haughty British soldier came close to the body of the dead chief and apparently hit the body.

The Wanchos went livid. On the morrow, they fell upon the survey party and killed 80 British surveyors and soldiers. A few managed to escape. The British thought nothing of the soldier’s indiscretion which led to the killings and instead plotted on retaliation. They came back weeks later and burnt Ninu and two other villages, killing Wanchos at will. When they returned a year later to find Ninu rebuilt, they burnt it down again. This was the turning point. The Wanchos would never be allowed into the plains till India became independent and they never forgot their isolation.

In mainland India, just around the time of the British retaliation in “remote” Ninu, Mangal Pandey had been hung to death in Barrackpore. This was followed by Indian sepoys in the British army turning mutinous in Meerut. The din in Meerut reached Delhi, 40 kms away, faster than the din in Tirap’s Ninu, around 2300 km away.   

The British could never completely subjugate the “Nagas” of Tirap, but the lack of development in the region began to tell on the tribals and the end of the British rule saw attempts by the by-then-educated Naga leadership to claim a separate nation for themselves. That happened in 1951, barely four years after India gained independence.

Seven years later, the Armed Forces (Assam and Manipur) Special Powers Ordinance 1958 was promulgated by then President Rajendra Prasad on 22 May 1958. It was replaced by Armed Forces (Assam and Manipur) special Powers Act, 1958 on 11 September 1958. I think the Act is in still in force over there. All these years. Should check with the government of India how much progress has the Tirap region made thanks to this Act. No need, of course, to ask the government of India if the enforcement of the Act has solved the problem forever and whether peace reins in the region. It’s perhaps okay to ask if the Act has permanently replaced a socio-political approach to the problem (an approach which was perhaps never considered as a tool for reconciliation).

The NSCN stopped eschewing violence a long time ago. Just like the Maoists in India’s Red Corridor. They are as much a burden on the state as they are on the very people whose support they thrive on. It’s a violence-begets-violence concept that reins supreme over there now. And it is so ingrained in the pulse of the region, its people and its rulers over decades that the original reasons for the confrontation are blurred by the constant worry that things may have reached a point of no return. “Resolution” is a “remote” concept. “Containment” connects.

I am not here to either vindicate or denigrate the cause of the “Naga” movement or that of the State. I am only worried we are so “remote” from Tirap and its region. Unitarism over pluralism never works. Even remotely.

Post Script: Kamlesh Joshi, the Deputy Commissioner of Tirap, is continuing to find out which of the NSCN factions killed the three army jawans. Joshi is considered in Delhi’s power circles as an able administrative officer. True to his image, he took a positive step to reduce the “remoteness” between Tirap and Delhi by launching an official website, tirap.nic.in. Understandably, the news of the violence did not figure on the website. Joshi, in his message on the website, says: “It is a matter of great pleasure for me to be able to communicate to you through the medium of this online portal for District Tirap. This website is a genuine attempt on the part of the District Administration to connect with the people of Tirap, and at the same time, disseminate information about the District outside.” Perhaps Joshi failed to notice that the five heads under the “Latest News” link on the website have not been updated for years. 

Amaravati: Once the capital of an empire, now the capital of a truncated state

Amaravati, a temple town on the banks of the river Krishna, is to be the new capital city of a truncated Andhra Pradesh.

The town was a capital once before in the long, long past.

Over 2300 years ago, Brahmin vassals of the Andhra-Telangana region of the then declining Mauryan empire were waiting for the end of Emperor Asoka to declare their independence. Soon after Asoka died, these vassals founded what later came to be known as the Satavahana Empire. Amaravati was their capital.

They ruled for around 450 years, usurped what are now the central provinces, parts of Maharashtra-Gujarat and Bihar and eastern Uttar Pradesh in scores of battles, thus becoming the first and perhaps only South Indian dynasty to ever rule over such a vast region of north and western India.

The Satavahanas are credited with introducing the Saka Calendar with the beginning of what is called the Saka Era in 78 AD to mark their victory over the Sakas, known to belong to east Iranian tribes. The first day of the Saka Calendar is celebrated as near year in Andhra, Telangana and Karnataka as Ugadi and in Maharashtra and Goa as Gudi Padwa.

(In Gujarat and neighbouring parts, the day after Diwali is celebrated as the first day of the Vikram Samvat calendar, established by the emperor of Ujjain in the year known as 56 BC by the Gre­gorian calendar. It is different from the Saka calendar, which has the new year falling in March.)

By the way, an interesting digression here: Do you know that the Modi government with effect from 2015 has put a stop to government publications using the Saka calendar dates and months along with the Gregorian calendar? Has anyone noticed it? Nevertheless it is a welcome step, considering nobody really knows anything about this calendar business. Suffice to know that the Saka calendar was officially adopted by the Indian government as its national calendar n 1957.

Amarvati became both the cultural and religious centre of the Krishna-Godavari region of the southern state during the Satavahana rule. It was also a prominent Buddhist centre. The Satavahanas were, apart from being Brahmins, supporters of Hinduism and this gives rise to speculation that they must have had a hand in the desecration or even destruction of Buddhist structures in the region.

If you take mythology into account, it is claimed that Amaravati finds mention in some of these ancient texts for being one of the five places in the Krishna-Godavari region where Siva temples sprung up following a fight between the so-called angels and demons. These five towns are collectively known as Pancha Khetras or Pancha Aramas. (Different from the 12 places where too there are Siva temples, collectively known as the Jyotirlingas.)

Today, Amaravati, is small temple town. The population is in the mere thousands. In Andhra Pradesh it is known for its high literacy rate. Not much happens there, not that much has happened ever there. There are guides who would tell tourists about the town's ancient, grand past with nothing to show as evidence but some boulders and damaged columns.

These guides will now have much to tell future tourists. 

It’s future is now to be re-written, as a capital town once again, its shape and structure decided by master planners of Singapore who may not have any idea how the Satavahanas planned this capital the first time round. 

Media Fringe Binge @ TeamIndia

Cricket is our obsession.

The question is are we mature and obsessed or immature and obsessed.

I notice that the graph of maturity, of us obsessed Indians, has taken an upward curve in the last few years.

Such, I regret pointing out, is not the case with much of the Indian media,

The reaction of the media, particularly the visual one, to yesterday’s defeat at the hands of Australia in the World Cup semi-final is illustrative.

The media began preparing for the World Cup long before Team India crossed over to the practice nets.

It was after all a mega budget affair. Crores of rupees involved. The big stars of cricket from Tendulkar onwards contracted. Each inch of the screen sponsored. Special sets erected in the studios. Teams readied to move to Australia. Live sources and streaming possibilities considered. Innumerable programs conceived and packaged. As match days neared, the drama unfolded possibilities never imagined, like, for example, anchors in suits and ties wearing a colourful turban and in the midst of anchoring getting up to join a band of drums and trombones, shaking a leg or two. Literally, anything that could go, went.

What was the assumption behind all this? It was primarily a presumption that Indians are obsessed with cricket and they would watch channels covering anything related to the game? And the presumption that the more colourful, the more outlandish (read innovative), the coverage is, the more the viewership would be? Maybe.

The channels were not proved wrong. The obsessed Indians did not disappoint them.

Now comes the difficult part.

The media obsession with the coverage of cricket.

It translates quite simply into edifying the cricketers in triumph and denigrating them in loss.

(Without being immodest I must admit that my group did not fall into this category. I do not say this lightly.)

Let us dissect this obsession.

Go back to March 14, 1996, the day after a group of obsessed Indian fans set fire to stands in the Eden Garden in Kolkata after Sri Lanka began to annihilate the Indian batsmen. The newspapers and what little of television we had then did criticize Team India’s abject surrender but without losing their sense of proportion and propriety. The media came down heavily against the fans for their over-enthusiasm.

In 1999 when India was out of the tournament after a dismal performance in the Super Six stage, the Indian media did call for captain Azharuddin’s head but led its coverage with the positives from the tournament, including the coming to age of India’s big three – Tendulkar, Ganguly and Dravid.

Now we come to the World Cup in the era of Indian broadcast journalism. The year, 2003. India barely managed to beat minnows Holland. Then came the inglorious match with Australia where India tumbled out for 125. Across the country, the fans took out effigies of TeamIndia and burnt them in front of television cameras. For the first time we noticed the television media bringing in nationalism into its narrative. Phrases like ‘’national shame’’ were bandied about with alacrity. Literally playing to the sentiments of the fans.

The first chinks in the armour of professional journalism practice went unnoticed. Perhaps, overlooked. The grudging come-back by TeamIndia in the later part of the tournament, beating Davids and Goliaths alike, making it to the final (before losing their nerve against Australia) was hailed by the media as regaining ‘’national honour’’. The fans too took out victory processions, conveniently leaving the effigies at home.

FaceBook entered our world the following year, 2004. By the time of the next World Cup in 2007, the obsession with cricket became the mainstay of the social media. As Bangladesh thrashed India, television newsrooms were busy monitoring FaceBook to collect posts and show them on their screens. Television producers quickly realized that the fans now had a powerful communication medium at their finger tips. So the TV screens became louder, more garish. A victory in a World Cup game became a greater symbol of India’s national identity than August 15, 1947. Anchors and cricketing guests alike looked up the net for nationalistic phrases. The fans were in a similar mood as they took out protest marches in Bengaluru and Mumbai and piled their bile on FaceBook.

Twitter entered our world in 2006 and five years later, when the World Cup began in 2011, India was in the grip of social media to the extent that the traditional media was forced to source much of its coverage from FaceBook and Twitter. The hashtag of Indian nationalism was #TeamIndia. Any systemic or symptomatic difference between the traditional media and the social media was blurred completely as both steered the mood of the country to make it somewhat resemble the heydays of 1947, 1965 and 1971. The World Cup, being played at home, would remain at home, they said. They dismissed India’s only defeat – to South Africa – as an aberration! After the final, a TV channel even said Dhoni was God. Many channels highlighted tweets and posts demanding a Bharat Ratna for TeamIndia and Dhoni.

Four years later, time for the World Cup again. The news channels carried their nationalist pitch to greater heights. They did not notice a difference from 2011: The fans, these obsessed Indians, were taking the Indian victories in their stride as their tweets and posts revealed. There were an equal number of tweets and posts applauding rival teams. In fact the social media in India was calling New Zealand, Australia and South Africa favourites even at the preliminary stage. Many thought India were favourites too, but not necessarily the only favourites. Of course there was a fringe element which kept up the nationalist rhetoric. But with few takers. The television channels, however, outrivaled the fringe in their nationalist outreach. Their headlines, their hashtags, their bugs, their anchor lines, their packages were splashed in the tri-colour.

In the event, India lost the semi-final. The fringe blamed Anoushka Sharma. The fringe lamented the blow to national pride. It strangely found itself on the receiving end on the social media for its utterances. There was general unanimity in the flaying of the fringe. The reaction of the obsessed Indians to the loss was, equally strangely, sober. Unlike never in the past. After the initial shock it was taken in their stride. TeamIndia acquitted itself decently, they said in their posts and tweets, while noting that the pressure of the game and lack of experience may have been Team India’s undoing. Some television channels stood out as sore thumbs and bad losers. They created a din throughout prime time last night as they berated TeamIndia, called it names, held it responsible for India’s shame, asked for their heads to roll, attributed motives to some players. They did everything just short of describing TeamIndia’s loss as an act of sedition. If they thought they were mirroring the sentiments of the majority of the obsessed Indians they were abjectly wrong.

For once, they were the fringe.  

Section 66 Gone, But Questions Remain

Censorship is saying: 'I'm the one who says the last sentence. Whatever you say, the conclusion is mine.' But the internet is like a tree that is growing. The people will always have the last word - even if someone has a very weak, quiet voice. Such power will collapse because of a whisper’ – Ai Weiwei, Chinese artist and political activist, a thorn in the side of the Chinese government.

By scrapping section 66 of the IT Act, the Supreme Court merely did its duty, clarifying that the fundamental right to freedom of expression and speech extends to the internet/social media.

The ruling could not have been anything else. For a simple reason. You can arrest one person for a perceived internet indiscretion. You cannot arrest a billion people for the same indiscretion. No law can regulate a mass of people. Only democracy can.

Welcome to the age of the internet – and social media – which has given us possibly the highest public platform ever for mass expression of freedom of speech, ideas and opinion, banter and slander.

The court clarified that just because a communication in the social media is construed by some to be vindictive or threatening the communicator need not be sent to prison. Doing so would mitigate the person’s access to the fundamental right of freedom of speech and expression.

The entire ruling of the Supreme Court is still to be read in detail, but one hopes the ruling by Justices J Chelameshwar and RF Nariman would eventually convey some basic truths to the executive and legislative arms of India.

The first point relates to the mindset of the law-maker politicians of India that punishment is the panacea for all ills. This mindset of our politicians has not yet adapted to the changed communication scenario where anyone and everyone, not necessarily an Indian, is a communicator and the platforms which deliver the communications know no national boundaries and are therefore beyond conventional regulation.

Many of us have seen the various phases of communication technology in India, from the age of telegram to telephone to the internet.  Today the social media is as much a source of news and information and entertainment as the traditional sources such as newspapers, radio and television. Importantly, we are exposed much faster to a greater number of ideas and opinions like never before. Some of these ideas are good. Some are bad. Some, outright ugly. Some, tolerant. Some, intolerant. Such a situation, in essence, is what freedom of speech and expression in an open society means.

The arcane mindset of our politicians would want to regulate such an environment in the vain hope that only regulation or censorship will compel citizens to be tolerant. That is not the right way. The freedom to express and speak also gives us the ability to challenge ideas and opinions which we think and believe are wrong. Such challenges are the need of the hour. Not section 66.

Self-regulation through such challenges is already happening. As users we can flag communications which we find inappropriate. And such content is removed by the social media sites which also ensure that real extremes do not find their way into the internet world. Purists may argue even this is a kind of censorship. To them I would say: Yes. But just because you have total freedom to express yourself would you roam naked on the streets? Why not? Because you can reason. Isn’t that self-regulation in a sense?  So, no point splitting hairs. Suffice to say there is a checks and balance system which is beginning to make its presence quietly felt in the social media. No need for section 66. Let us be clear about one thing: The greater aim is creating an environment for free exchange of ideas and expressions rather than focusing on controlling the extreme fringe.

Let me quote from a portion of a brief submitted to the US Supreme Court last year by the Reporters Committee for Freedom of the Press. Intervening in a case – Elonis vs. United States – the Committee said: “Public commentary is frequently meant to provoke—whether by urging listeners to rethink their position on an issue or to take action—and this country has a long history of protecting provocative speech.”

The case relates to a person called Anthony Elonis who was given a prison term for posting what was construed as hostile and threatening content on Face Book. Elonis challenged his conviction in the supreme court saying it is an infringement of his rights under the First Amendment.

The arguments have closed in this case and the judgment is expected sometime this summer. The case focuses on (a) how and when can a communication in the social media be construed as a real threat and (b) whether the communicator can be convicted if it is proved that any reasonable person would regard the communication as threatening. This is the first time the US Supreme Court has heard a case considering true threats and the limits of speech on social media. 

(Social media watchers the world over are eagerly awaiting the outcome of this case given the fact that the United States Supreme Court way back in 1997 had ruled that any regulation of the communications over the internet were unconstitutional. In the Reno vs. American Civil Liberties Union case, all nine justices of the apex court unanimously struck down certain anti-indecency provisions of the Communications Decency Act saying they violated the First Amendment’s guarantee of freedom of speech. This was the first ever occasion the court had ruled on regulating the internet. The ruling said the controversial provisions of the Act were unconstitutional and unenforceable, “except for cases of obscenity or child pornography, because they abridge the freedom of speech protected by the First Amendment and are substantially overboard. The Internet is entitled to the full protection given to media like the print press; the special factors justifying government regulation of broadcast media do not apply”.)

This brings me to the second point. The Indian government has reason to monitor the social media for situations where groups of people with extreme positions may exploit the social media sites to create tension or sway or even coerce public opinion . Such situations have come to pass, specially during the run-up to the 2014 general election, some of them involving groups reportedly with communal or terrorist affiliations. It is certainly worrying.

So, what then happens to our premise that freedom of speech and expression overrides all other Constitutional/national concerns? Is an act of sedition or a direct threat to the security or integrity of the country to be overlooked in order not to tamper with freedom of speech and expression?

In the US, there are exceptions to the First Amendment which include inciting imminent lawless action, fighting or inflammatory words, true threats, obscenity, child pornography, invasion of privacy, defamation and intentional infliction of emotional distress.

India too has such exceptions. Clause 2 of Article 19 of the Constitution imposes certain restrictions on the freedom of speech in case of security of the State,  friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to an offence, and sovereignty and integrity of India.

However, the situation is a bit different in conflict-borne/torn nations particularly in the developing world, where to some groups of people the internet and the social media is a means to a dangerous end. The dilemma of these nations, including ours, is how to find a balance between freedom of expression and protection from divisive forces and incendiary actions. Yes, violent or extremist content has to be monitored but such monitoring, even if well-intentioned, will have damning consequences for our freedom.

The secondary dilemma is who will decide what is violent or extreme content? Some content, like videos showing beheading of people or maiming animals or raping girls, is certainly violent. But what about that content which is not so extreme but still raises alarms?

With section 66 now gone, we know that regulation is not the answer. As that is the best deterrent our politicians can ever come up with, we need not look up to them for an alternative. It is a waste of time. We have to check with the Supreme Court. What will it say?

It is not an easy dilemma for the court to solve. For, the judiciary is bound by jurisprudence. Writing in Justia, a well-known American legal commentary website, Sherry F. Colb, Professor of Law and Charles Evans Hughes Scholar at Cornell Law School, sums up the conundrum before the US judiciary (or any other judiciary for that matter): “In Elonis vs US, the question is whether the person who utters a true threat must subjectively intend to bring about fear of bodily harm or death or whether it is enough that a reasonable person uttering the words in the context would foresee that his words would be interpreted as such a threat.”

Having said that we should look up to the supreme court, I ask: Should we leave it to the courts? Are we not a democracy where the people’s will is supreme and which is represented by the legislature? There we go again, facing a dilemma. The legislature is incapable of broad thinking. Depending on judicial intervention amounts to surrendering our democratic rights. What do we do?

We are all communicators in this internet age of ours. Let us frankly discuss how to resolve these dilemmas. The New Yorker in its December, 2014 issue raised some of the questions pertinent to the Elonis vs. US case which are also pertinent to us in the Indian context. “When does communication cross the line into being an illegal threat?...Under what circumstances might a Face Book post be considered a threat?....What kind of communication constitutes a threat, and does it make a difference whether the communication was made online or offline?”

These are questions which may not be of immediate concern to us. But rest assured, one day they will be. 

Media Commandment 1: A Hero does not commit suicide; if he does so, prove him wrong

He, an honest IAS officer. She, an honest IAS officer.  Young. In their thirties.  Barely into the fifth year of the Indian Administrative Service. Mates of Batch 2009. There was more. Naturally.

He took on the land mafia in Karnataka. He was their scourge. He untiringly tried to unearth tax evasion by them He was transferred umpteen number of times. As his reward. The public adored him. Of course.

She is credited with constructing 75,000 individual toilets in Mandya district where she is currently posted. Her target is 1.02 lakh toilets in as many households. Under the Swachh Bharat Abhiyan.  On March 11, she was selected by the Union government to train fellow IAS officers for effective implementation of her initiative.

Five days later, on March 16, he died. He was found hanging from a fan in his home.

The unnatural death threw both of them into a vortex which now threatens to blacken their well-earned official reputations. It has already muddied and muddled their private lives.

When the dust settles down on this case in the near future, as it naturally would, the two officers would be remembered more for their private discretions or indiscretions than their achievements as officers of the Indian Administrative Service.  The media and the politicians will be held solely responsible for such an eventuality. Should they be? You judge.

A day after the officer’s death there was a clamour for a CBI probe. The opposition parties in Karnataka and the media were exclusively behind the clamour. The state government tried its best to stall it, but eventually gave in.

India’s premier investigative agency, the CBI, will now try to find out if the officer’s death was unnatural and if so, why so.

Which means, on the face of it, the premise that the death could have been a suicide is ruled out. At least in the discourse in the media and social media. 

The CBI will try to probe if the officer was killed, suffocated to death or whatever and if so by whom. If it is unsuccessful, it will have no option but to agree with the state police that it was a suicide.

The state government backed its police which from day one was saying it looked like a case of suicide, claiming it has irrefutable evidence to say so. The local CID began a probe that ran into trouble when the lady officer’s husband approached the Karnataka high court for a stay on it being made public. It was granted.

That put paid to the state government’s plans of tabling the preliminary report of the CID in the state assembly as a counter to the opposition’s demand for a CBI probe.

Within hours of the knowledge about the officer’s death on May 16, the media advertised the notion that the death was linked to actions he had initiated against certain real estate companies in the last few months. The media extolled his achievements, turning him into a martyr, laying the blame at the feet of certain mafia in Karnataka. The opposition parties took up the cue: the mafia was being protected by the chief minister which was why he was intent on proving the death as a suicide.

An irritant to the media’s doctrine-of-ratings was the state police which kept on insisting that it was a case of suicide. The media simply brushed it aside. It pooh-poohed the government, questioned its integrity and wondered if it was trying to protect the officer’s ‘’killers’’. The media could not name the ‘’killers’’ for the simple reason that it did not know who the killers were if at all there were. How could a ‘’hero’’ commit suicide? Such a scenario did not exist in the media textbook of sensational journalism. So, as far as the media was concerned, the officer did not commit suicide. And therefore the need for a CBI probe.

There was another section of the state’s population which subscribed to this theory: the opposition parties, specially one particular party. Its leadership wasted no time in jumping on to the CBI-probe band-wagon. It may be a coincidence that both the party’s top leader and the dead officer belong to the same caste which is, equally coincidentally, politically against the caste to which the current chief minister belongs.

The leadership’s initiative saw the officer’s parents, poor fruit sellers who worked all their lives to educate their son, being given no time to grieve for their child; instead they were brought to the state capital and settled right in front of the assembly so they could grieve in public glare for the media cameras to record their grief for the purpose of breaking-news visuals and, of course, posterity.

They were obviously tutored by some one as otherwise they could never have articulated their demand for a CBI probe the way they did. Poor parents, they were apparently told that they would receive crores of rupees from the government and everyone else if it was proved that their son was murdered. Those using them as a shoulder to fight their political battle wanted more publicity for their cause, So, they drafted a letter, an open letter, to Sonia Gandhi, signed by the officer’s now-publicly-grieving mother Gowramma and his unidentified friends. Was the letter sent to Sonia Gandhi’s office or residence by courier or handed over in person? No. It was sent to the advertisements section of a national English daily for a prominent display in its March 22 Delhi edition. In impeccable English, Gowramma talks to Sonia Gandhi about her travails for justice for dead son, reminding Sonia Gandhi of her own travails in May, 1991.  

The media, ever the faithful, ‘’anti-establishmentarian’’ lap dog, ensured no scene of all this drama was missed out on.

 Having settled the ‘’family’’ campaign, the opposition party began targeting the CID which claimed it was trying to put together a preliminary probe report. In no time, ‘’authoritative sources’’ started leaking information about private matters relating to the dead officer and living woman officer.

The media exhibited no sense of propriety in naming the woman officer into its cooked-up narrative. It could not justify why it was dragging her name into the story. Yet it did. Ratings matter more than privacy. There were debates on how many WhatsApps and texts and mails were exchanged between the two officers before his unnatural death. Their privacy was butchered at the altar of insensitive journalism as the media debated on the nature of the relationship between the two officers. It was one-sided, it said. The man was in love with the woman, it said. The woman did not reciprocate, it said. They eventually got married  though not to themselves, it pointed out. Yet he did not forget her, it said. He was pestering her, it said. She was complaining, it said. The breaking-news went on and on and on. Finally, he committed suicide just after texting her informing her he was taking an extreme step to which she replied in the exclamatory, ‘’ no kidding?’’. Having said all this, the media says in the same breath the CBI should probe the unnatural-which-is-not-a-suicide-death.

A part of this unattributed-yet-authoritative media narrative was that the woman officer had brought her trauma to the notice of a friend who happened to be the advisor of the chief minister of a neighbouring state. The media said the woman officer had also written to the Karnataka chief secretary about the male officer harassing her. The opposition spiced up the narrative by adding that the chief secretary, wanting to secure his future after retirement, was intent on ‘’proving’’ that it was a failed personal relationship which led to the officer’s suicide so as to hide the real reason – the alleged shielding of a real-estate-owning politician by the chief minister – being the unnatural death.

Two critical bits of information the opposition party latched on to, to say that the CID could not probe the affair.  One, that the CID has no jurisdiction to record the statement of the chief minister’s advisor. Two, the CID has no jurisdiction to record the statement of the state chief secretary. Therefore, the CBI alone can conduct the probe. Sweet logic, tempting enough for the media to launch a national campaign for the probe.

The media and the opposition party continued to denude the two officers of all their privacy. Soon reports began to circulate that the officer’s marriage was in doldrums because of his relationship with the woman officer; that they were close to divorce; that his father-in-law was involved to a more-than-necessary extent in his son-in-law’s life. It was besides the point that the father-in-law incidentally was overlooked for an election ticket last time by Siddharamaiah. Notwithstanding this coincidence, as claimed by the media, the father-in-law’s side also raised the demand for a CBI probe.

As things stand, on the day the state government succumbed to the demand for a CBI probe, let us see which of the interested parties favour which probe:

CID probe: the state government led by its chief minister

CBI probe: the media, the opposition party, the entire social media, the parents of the dead officer, the in-laws of the dead officer (in that order, the order determined by the loudness of their respective demands for the probe).

As things also stand, the officer may have committed suicide, may have done so voluntarily or under coercion or under emotional stress, may have been murdered by suffocating him and then hanging him by the fan, or killed by some other diabolical method.

If he did not kill himself, logic says someone must have been the killer. Who? Everyone is a suspect, including the real estate mafia. Or, some other person whose identity and motive are not currently known or being considered even could have been responsible. Or, maybe a supernatural force ended his life. Or, someone emptied his bedroom of all oxygen, killing him (that still does not explain how he happened to hang by a rope). The point it, it could be anyone, repeat, anyone. In which case, why is the media and the opposition dragging only the lady officer into the public domain? Because there is a truth only the media and opposition party knows as of now? Or because the media and opposition party cannot resist being lascivious?

By the time the CBI completes its probe, one thing would certainly have happened. To repeat myself, in the collective memory of the people of this country, the dead male officer and living woman officer would be remembered more for the tidbits of their private lives prised open by the media and the opposition party than their achievements as IAS officers.

Whither journalism. Wither journalism?