Friday, February 28, 2014

The rise of "libel chill" in India

Omair Ahmad, author of ‘Jimmy the Terrorist’ and ‘The Storyteller’s Tale’ has written to his publisher, Penguin India, to cancel his contracts so that he does not feel hypocritical criticizing them. Ahmad’s statement follows closely behind a strongly worded letter by author and Booker Prize winner Arundhati Roy, who asked, “You must tell us what happened. What terrified you?”

The reactions by Ahmad, Roy and other Indian authors and columnists have been prompted by Penguin India’s decision to pulp all remaining copies of American author Wendy Doniger’s controversial book – The Hindus: An Alternative History. This decision came after pressure put on the publisher from a lawsuit filed in 2010 by Hindu group Shiksha Bachao Andolan Committee (The Movement to Save Education) which claimed the book contained heresies and factual inaccuracies.
For its part, Penguin India claimed that it settled the four-year suit in part due to the Indian Penal Code that makes it “increasingly difficult for any Indian publisher to uphold international standards of free expression.” It went onto cite section 295A which threatens up to three years imprisonment against those who “with deliberate and malicious intention of outraging the religious feelings of any class of citizens in India, by words, either spoken or written … insults or attempts to insult the religion or the religious beliefs of that class.” International copies of the book are still available. And, predictably, the book can be illegally downloaded over the internet.

Reactions in India have been mixed. There are those who support Penguin’s decision, as there is a worry that the book places forward a highly sexually charged version of Hinduism, offensive to many devout Hindus. Offensive enough for a group to move the Court against such a book, as is their legal right. However, what has shocked many is that Penguin succumbed to pressure to remove the book from the Indian market without their even being a court order forcing them to do so. As a reaction, the Bangalore based Alternative Law Forum has issued a legal notice to Penguin India claiming the publisher has violated freedom of speech laws and its readers’ rights. The Hindustan Times carried an article criticizing Chiki Sarkar, the publisher of Penguin India, for not keeping her word of October 2012 to “take the next injunction we are faced with and really fight it out.” This, to many, is just another case of self-censorship by so-called liberals because of pressure from right-wing fringe groups who “morally police” Indian society. This is indeed a rising trend in India, as is evident by the growing numbers of reports in the news highlighting cases of exhibitions being cancelled and more famously, stopping authors like Salman Rushdie to appear at literary book festivals.

In a passionate editorial, commentator Pratap Bhanu Mehta has hit out at liberals, so called defenders of free speech for failing themselves. As he writes: “Liberal India has been silenced because it never understood that toleration does not, to use Govind Ranade’s phrase, come in halves. You cannot pick and choose when to be tolerant. You cannot choose to be tolerant along partisan lines. Neither can you choose to be tolerant based on what you think are distinctions between good and bad scholarship, serious and scurrilous books. These distinctions are a good basis for criticism; they are not the best basis for deciding whom the law will protect. And R.V. Bhasin, author of a banned book on Islam, will be protected as much as Wendy Doniger. And so it should be. If you want a hundred flowers to bloom, a few weeds will grow as well.”

Bhanu is right. Attacks on freedom of speech aren’t always prompted only by religious groups. It was only in January 2014 that the media reported that ex-bureaucrat Jintender Bhargava’s book India’s national airline, Air India, was being withdrawn by publisher Bloomsbury, with leftover stocks being destroyed, as well as an apology to former civil aviation minister Praful Patel, who has been pilloried in the book as the man who caused the downfall of the airline. Bhargava found that television discussions about his book were cancelled for reasons unknown to him, and despite an ensuing legal battle – ex-minister Patel has filed defamation cases against him which are yet to be settled — the publisher chose to settle the matter with Patel.

In an article on the matter, Medianama reported that the author, Bhargava, chose to keep the rights of the book for himself and is now looking for another publisher or to release the book online. This, the site reports, is possibly “a sign of things to come.”

Could this also be yet another sign of things to come: What it is now being described as the phenomenon of “libel chill” in India. This means using money to start libel suits the moment someone criticizes them. The Hoot reports of yet another case towards the end of 2013, where giant group Sahara India filed a case against Tamal Bandopadhyay, journalist and author and his publisher Jaico India, for damages of a whopping Rs 2 billion and a perpetual injunction restraining them from publishing or circulating or releasing the book, Sahara : The Untold $tory, in any form.

In these cases, what is the role of the publisher? Can Penguin India be held to a higher standard – one that would involve years of costly litigation – or can they be forgiven for taking a business decision that means they give up on their authors who are left to fend for themselves? Should writers of sensitive subjects look to retaining the rights to their books lest they need a new publisher, or explore digital publishing because the trend seems to indicate publishers might not wait for a court order to stop publishing certain books.

The final answer, then perhaps, lies in the solving of “blatant abuse of libel and defamation laws by corporations and individuals in positions of power, to silence critical voices”, as described by Gautam Bhatia in Outlook magazine. He offers a solution: In the interest of free speech the court must protect journalists and authors who do not willfully or with reckless regard publish what they know to be wrong. As he writes, “it is possible that the pendulum will swing the other way, and the threat of an unrestrained and irresponsible media can never be discounted… undesirable though the prospect of an unaccountable media is, the prospect of a silenced media is far worse.”

The courts must stand up for freedom of expression in India, and publishers and authors need to know that principles of free speech are worth fighting for, and self-censorship isn’t the new order of business. It is absolutely no coincidence that India has been ranked among the worst countries (140 of 180 countries) on the World Press Freedom Index in 2014.

Friday, February 21, 2014

Lok Sabha TV blacks out during debate over controversial bill

The government called it a “technical error” while the leader of opposition in the lower house called it a “tactical error”

India’s lower house of parliament – the Lok Sabha – though capable of witnessing introspective and impressive debates, is often in the news because of the bawdy and boisterous behaviour of its elected members. Obstructionist behaviour – unacceptable in streets, schools and other workplaces – is employed to register protest, all under the watchful eye of Lok Sabha TV – a government channel dedicated to broadcasting the proceedings. The transmission is used by private TV channels, to report on important debates of the day, but most often to highlight “unparliamentary” behaviour.

Only last week, a member of parliament from Vijaywada, Andhra Pradesh used, not logic or reason, but pepper spray on fellow parliamentarians to protest the tabling of the “Andhra Pradesh Reorganisational Bill”. Just five days later, on 18 February, the same bill was tabled in parliament amidst much uproar, and the house was adjourned three times due to disruptions. Then, around 3:18pm, the bill was tabled on the floor of the house, but the live proceedings that usually accompany it were “blacked out”. The government called it a “technical error” while the leader of opposition in the lower house, Sushma Swaraj of the BJP, called it a “tactical error”. Thus, for the first time in its history, the lower house of Indian parliament passed a law as important as creating a new state – by reorganising Andhra Pradesh into two states; Andhra Pradesh and Telangana – away from the media glare and the public eye. The upper house has also passed the Telangana bill, which the president — a Congress appointee — is expected to sign.

The history behind the controversial bill is long and emotional; however in a nutshell, the demand is to carve out a new state from the existing state of Andhra Pradesh, which would absorb the current state capital of Hyderabad. Protestors against such a move have argued that bifurcation would cause detriment to new Andhra Pradesh, also known as Seemandhra, as the more developed city of Hyderabad, water bodies and income opportunities would no longer be easily accessible to them. They also believe that they would be more vulnerable to the threat of naxalism, a communist ideology. The protests have been raging since 2011, which have seen many incidents of violence, vandalism, arson, ransacking, petrol bombs, tear gas, and most recently, pepper spray.

The history behind protests in the well of the house leading to disruptions and adjournments over crucial issues, of course, extends well beyond the issue of Telangana. In 2013, a report by the Times of India indicated that since the 1950s, the hours spent working in the Lok Sabha have been gradually decreasing; from about 3784 hours on average between 1952-57 (during the 1st Lok Sabha session) to 1157 hours since 2009 (the current and 15th session of the lower house). Lok Sabha floor management seems to be dismal, resulting in critical legislation still pending consensus. Further, members seem to be “trying to impress their voters back home with their commitment to the cause they are espousing” by their interruptions, using the live broadcast of Lok Sabha to their advantage. The infamous pepper spray incident wasn’t just about the MPs who were wheeled off to the hospital. Glass screens on the tables were smashed, microphones were uprooted, papers flew everywhere, and the parliamentarians were in fisticuffs with each other. The images of the day shocked the media and viewers alike, with reports calling it a “day of shame”.

On 17 February, a day before the “black out” the Indian Express reported that the government had made arrangements for the Finance Minister P. Chidambaram to read out the 2014-15 Interim Budget in the Lok Sabha TV studio, should the MPs disrupt the proceedings once again. The report also stated that: “If the speech is read from the studio, it would be the first such instance. Government managers said they hope the step won’t be necessary, but have alerted the studio authorities to be prepared.” Luckily for him, the house listened with minor interruptions and passed the bill.

However, it was just the next day that the government chose to manage the disruptions in the lower house, caused by the tabling of the Telangana bill, by ordering Lok Sabha TV to stop both, broadcasting the proceedings of the House and transmitting its live feed to other private media channels. The Economic Times reports that: “The House looked like a virtual battle-ground during the 90-minute proceedings as members resorted to slogan-shouting to protest against passage of the bill. Live telecast by Lok Sabha TV was stopped, perhaps the first time.” Many members of parliament called it a “black day” in the country’s democracy, and others likened the move to the heavy censorship employed during India’s Emergency, when Prime Minister Indira Gandhi heavily censored the media. Despite a statement from Lok Sabha TV’s CEO who has called it a “snag”, the Parliamentary Minister, Kamal Nath, confirmed that the black out was “a decision of the Lok Sabha secretariat”. There are hints that the opposition, while protesting the black out loudly in public, knew about the plan to stop transmission.

Congress Minister Rajeev Shukla defended the move by saying that the media gallery was open, therefore there was no intention to keep anything behind closed doors. Congress spokesperson Abhishek Manu Singhvi stated in a TV interview that, “why is so much noise being about the live transmission? Eight years ago there was no live coverage. Does it mean parliament didn’t function or people did not speak? There were 200 correspondents were in the press gallery who were witness to what happened during the passage of the bill.” Others, on the winning side, like Telangana supporter KT Rama Rao felt that “people have no problem if the TV channels did not receive their TRPs. The Speaker might have decided to stop the telecast to save some lives at the moment when emotions were high.”

In an interesting analysis, Sevanti Ninan, of the Hoot, looks back at the role of Indian media in creating and sustaining movements such as Telangana. She writes: “In the case of Telangana, newspapers and TV channels have come into existence in the last few years primarily to articulate the statehood demand. If the media pre-2009 was owned largely by businessmen and politicians from the Andhra region, there are now entrants such as T News, V-6 and others on the Telangana side of the divide.” In fact, such was their role that in January 2010, the Andhra Pradesh High Court observed that “on account of some of these abusive visuals, people are becoming violent…”

Therefore the issue boils down to a few either/or questions. Did the Speaker of the House cancel the broadcast on purpose, and if yes, in today’s television era, is the move justified? Do people have a right to see how their MPs behave in parliament – good or bad – or does the Congress argument that other forms of media can report on the proceedings of the House hold water? Is this a dangerous precedent set by the ruling UPA? Is the move to simply deny private channels/political parties who oppose the government’s position their TRPs for the day, by cancelling live footage of the ruckus of the House? Can the Lok Sabha simply choose to switch off live proceedings in order to pass a contentious bill, or can this be categorised as “floor management”?

And the elephant in the room – without the free publicity by Lok Sabha TV cameras, did the MPs finally get down to actually doing the work — vote — that they are meant to instead of prolonged disruptions?

Monday, February 17, 2014

India enters the sousveillance age

The anti-graft crusader might want to think through the larger implications of hidden camera "sting operations" as a weapon to end corruption

Arvind Kejriwal, Delhi’s erstwhile chief minister, gained popularity among the ‘aam aadmi’ – ordinary citizens – because of his tough anti-corruption stand. Many saw his newly formed party, the Aam Aadmi Party (AAP) as a breath of fresh air. His antics and strategies to grab media attention didn’t disappoint either.

During his campaign for Delhi’s highest seat, he cut off electricity wires outside peoples homes to mark his defiance of what he said are corrupt electricity meters that overcharge people. Once in office, he sat in protest against Delhi’s own police force, demanding that the Central Government that controls the Police in Delhi, the country’s capital, immediately transfer its control to his government. Kejriwal has become an urban icon.  Always wrapped in his trademark muffler, with a seemingly constant cough, his image is being parodied intensely on the internet. He insisted on being sworn in as Chief Minister of Delhi, in an open –to-all public function at one of Delhi’s biggest grounds instead of at the office of the Lt. Governor of Delhi, as is practice.  For a while, he was adamant about holding a special session of the Delhi Assembly, called for legislating the Jan Lokpal Bill seeking to establish an anti-corruption ombudsman, in one of the capital’s largest stadium instead of inside the Assembly itself. On 14th February, after unsuccessfully trying to introduce the Jan Lokpal Bill on the first day of Delhi’s State Assembly, he held a press conference in the pouring rain to announce that he was resigning over this issue. This capped his 49 day tenure, and just before ending his press conference, he declared that che is ready to “sacrifice his life for the country” in his fight against corruption.

In terms of theatrics that inescapably accompanies his politics, Kejriwal is caught the imagination of India’s common man. He is always on television. That any politician willingly resigned as chief minister will not be lost on Indians, used to seeing politicians hang onto power with dear life. Many are looking to Kejriwal to make a sizable dent in the national elections, projected to be held in April 2014.

While campaigning and during this term in office, Kejriwal unveiled an arsenal of ideas to battle status quo – and take on people in authority head on – including his idea of asking the common man to use the mobile phone as a “weapon” to secretly film government and police officials demanding bribes. This proof then could be turned over to his government, which had set up an exclusive hotline to deal with corruption charges. Don’t get mad, get even – seems to be his motto as he urged residents of Delhi, “setting kar lo” – or fix them.

Media reports confirm that as a result of “open season on sting operations” the sale of spycams have increased in Delhi, with some shopkeepers estimating that the sale of these hidden cameras have shot up almost 90%. Spy cameras are available in the form of pens, keyrings, buttons, watches, pen-drives and eyeglasses, and on a more expensive scale, in jewellery and other bespoke items.

This isn’t the first time AAP has recommended the use of spycameras. Days before the New Delhi vote, the media reported that AAP were fitting slums with spycams to ensure that candidates of other parties did not go there to try and buy votes – and if they did – they would be caught. Over 2,000 spycams were reportedly used for this operation.

The AAP party is not the first — and certainly won’t be the last — in suggesting the use of cameras, especially through mobile phones, for citizen empowerment. In fact, when Delhi’s traffic police first launched a page on Facebook, citizens began posting pictures of cops breaking traffic laws in hopes that they be reprimanded. Similarly when the Municipal Corporation of Delhi started its Facebook page, people took advantage of the platform to post pictures of shoddy or incomplete works in their neighbourhoods.

Community video project, India Unheard, has armed citizen journalists from small towns and villages with cameras, and they report on development and other issues, and publish these videos on the internet. In many areas, due to the spotlight on them, government officials have responded to these negative reports and taken action. The parent outfit, Video Volunteers, even ran a campaign to check the “real” progress of India’s Right to Education Act, by bringing out over 100 videos that document the real implementation of this act on the ground.

The use of technology “from below” to hold those in power accountable is also known as sousveillance, a word that comes the French word “sous” (from below) with the word “viller” coined in 1998 by Professor Steve Mann of the University of Toronto. In the West, sousveillance is being looked at by some as an foil to mass surveillance; a manner in which citizens can watch those watching them. Others, however, express some doubts at a society where citizens are pointing cameras at a state that is watching them, and perhaps ultimately leading to a situation where everyone is watching each other. Surveillance is normalized because it is so institutionalized.

However, sousveillance is not necessarily targeted towards government and law enforcement officials alone. In New York, a project called Hollaback asks women to take pictures of their harassers and upload it to their site. The movement has expanded and extends to Indian cities as well. And gadgets like Google Glass will make humans capable of recording their perspectives on a 24/7 basis, amassing huge data.

So it appears that at a time when civil society is up in arms against big brother surveillance schemes run by the government because of their privacy breaches, we are simultaneously doing the same to ourselves, with what some call little brother surveillance.

Jay Stanley, Senior Policy Analyst at ACLU writes, “Under the old expectation, the default expectation was that any given event would not be photographed… That is rapidly being replaced by a new mindset in which the default expectation is that something taking place in public will be recorded. Thus you often hear expressions of disappointment when a disputed or dramatic public event is NOT caught on video.” He also raises the point that citizen video footage might give the state a reason to scale down their mass surveillance activities, because video evidence can simply be collected from private photos and videos. However, it seems unlikely, given what we know about governments world wide, that most countries will be ready to give up their schemes to the off-chance that somebody-recorded-it.

Of course, one can argue there is a subtle difference between CCTV cameras that clearly announce their existence, people pointing mobile phones at each other on the street, and the proliferation of spycams to “fix” people. There is also legitimacy attached to this process when the chief minister of a state asks its citizens to collect proof of wrongdoing as the basis of taking action, as has been done in New Delhi. In fact, in a speech made just about three weeks after he took office, Kejriwal announced that he is quite sure that corruption must have come down at least 20-30% in Delhi, to thunderous applause. A helpline the new government has set up even offers to tutor citizens in how to conduct sting operations against corrupt officials. In an editorial by the Indian Express, the paper advises that, “Sting operations are an ethical minefield. They are based on lies and entrapment, even if in the service of a larger cause. They are easy to manipulate at several levels, including editing to convey the desired impression of a meeting. This unease about the subterfuge and distortion of using undercover cameras is the reason stings are not admissible as legal evidence. How can they be the basis of prompt government action, then?”

The truth is that India has a problem of entrenched corruption, and the AAP’s ride and subsequent anti-graft ideas address these concerns head on. Previously India’s Central Vigilance Commission in 2010, had encouraged people to conduct stings on government officials, even as a draft privacy law, yet to be passed by the Indian parliament, said such operations could violate individual privacy. Others worry that programs like these need protections such as a Whistleblowers Act and provisions to protect anonymity. However, the concept of sting operations, made popular by a vigilante media has become so popular that there is now an Indian website that collates India sting operations for anyone to see.

The government of India’s capital is installing more and more CCTVs for safety reasons, the Central Monitoring System is being deployed to track citizens online behavior, and now the Delhi government is glorifying sting operations through radio ads and billboards. Ultimately, the AAP, consciously or unconsciously, has given its vote to a society based on sousveillance.

Can the encouragement of spycams and secret mobile tapings end up in people spying on neighbours, and perhaps even blackmail them? Could Delhi’s public spaces shrink because of the “spycam moral police”? Are adequate privacy frameworks in place?

The AAP needs to think about these questions, especially if it plans to field these ideas during the national election campaign trail.

Point and shoot are never orders to be given lightly.