CategoryLaw

Freedom to create discomfort

ARTICLE 19 (A) of the Constitution enshrines our right to free speech. But Article 19.2 restricts it on the grounds of public order, morality and decency, security of the State, sedition, friendly relations with foreign countries, defamation, contempt of court and incitement to an offence. Unfortunately, these clauses are very loosely worded and have become a baggy hideout for weak governments. If we are to preserve our precious right to freedom of speech, then, we must debate 19.2 and narrow its meaning more precisely. Or insist governments emerge from its shadows.

Source: Tehelka.

The above-quoted paragraph highlights what is the key issue in rampant and often random restrictions on free speech in India. I have written on this in the past. The other reason is the reluctance to charge the ones acting on the speech with violence. It needs to be inculcated that no matter how gravely you’re offended, if you resort to violence or issue a actionable threat to do so, you will be dealt with first. There should be no tolerance for violence regardless of the incitement. Start enforcing this law strictly and uniformly and you’ll see how quickly people will stop being offended. Most offenses taken are purely for publicity sake which in turn they use for political gain. Clamp down on this behavior and we may have a semblance of reasonable discussion in the country. One of my ex-professors suggested this:

And I agree.

Disposable Miranda Rights

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

Thanks to the hajaar crime drama shows on American television, almost everyone, U.S. citizen or not, is aware of the Miranda warning. It underscored the importance of due process as granted by the Fifth and the Sixth Amendment of the United States Constitution. It is merely one aspect of the U.S. law and order system that makes America what it is. No one is above the law and you will be presumed innocent until proven guilty. The process of prosecution is just as important as meting out of justice for the crime committed. The process can seem frustrating in light of heinous crime where guilt is beyond doubt but it keeps in check power of the police and the government which is easily susceptible to abuse.

Thus it is suprising that the party that allegedly supports the Tea Party Movement which is based on protesting the government’s reach into our daily lives can be so conflicting over these basic rights. The conflict arises over reading the Miranda rights to the alleged Times Square bomber, a naturalized U.S. citizen from Pakistan. Republicans ranging from the crazy wingnut Rep.Peter Kind to the so-called ‘maverick moderate’, Sen.John McCain have voiced their opposition to reading the Miranda Rights to a U.S. citizen and Sen.Joe Lieberman goes to the extent of proposing stripping him of his citizenship so the rights can be denied (imagine the precedent it may set). In a hell-freezes-over moment, Glenn Beck emerged as the voice of reason when he said, “[Shahzad] has all the rights under the Constitution. We don’t shred the Constitution when it is popular. We do the right thing.” The heads of Fox & Friends just exploded hearing this muttering, what the heck did just happen? If the Miranda warning can be excluded and individuals stripped off their citizenship for terrorist attempts then why not exclude them in crimes involving molestation of kids or rapes or even selling drugs? Can the citizenship be stripped only from naturalized citizens or is every citizen fair game?

The irony was that on the day this was being debated, the Indian courts in a rare display of speedy justice convicted Kasab, the sole gunman from 26/11 terror attacks in Mumbai making an American blog say this:

Screen shot 2010-05-04 at 9.42.58 AM.PNG

I never thought I would see the day when the Indian judiciary would be held up as an example against the American one. So pigs can fly.

Update: There is in fact a ‘public safety exception’ to the Miranda warning which makes McCain and King’s mumblings even more bizarre:

Law enforcement officials can invoke a public safety exception and delay reading a suspect his rights to get information that would save lives. In Shahzad’s case, the FBI invoked the public safety exception. The agency called in its crack interrogation team, asked Shahzad questions with no Miranda warning, and reaped what the FBI says was “valuable intelligence and evidence.” Then Shahzad was read his rights. And lo and behold, he waived them and kept talking [source].

Chetan Bhagat’s Copyright Incompetence

For the past week, the Indian media has been obsessed about the Chetan Bhagat and Three Idiots production team spat on grounds of copyright and due credit. It almost seems farcical that Bollywood which has in fact thrived on lifting not only concepts but frame-by-frame movies from elsewhere is obsessed whether a movie is 5 or 10 percent similar to another source. But at least this way, many Indians are now exposed to the concept of attribution and copyright. But as far as Chetan Bhagat is concerned, he seems to be on flimsy legal grounds.

The fact of the matter is, Bhagat is complaining that he did not get a proper story credit, but was mentioned only in the credits in the end. The fact of the matter also is, Chetan Bhagat is an MBA from India’s top school, and worked many years as an investment banker. And no matter what the other failings of i-bankers are, they are expected to understand contracts. To read and interpret contracts. And to realize, that if you are not happy with something in the contract, you don’t sign it

Gaurav Sabnis nails it when he pins the blame rightly on Bhagat (or his lawyer). Bhagat signed a contract in 2005 signing away his rights in lieu of payment. One point of contention – placement of authorship/credit – is stated plainly in the contract that was posted by the producer Vidhu Vinod Chopra and is done exactly that way – in the rolling credits. So why all the tamasha? Bhagat is resorting to a typical Indian strategy of appealing to an ambiguous standard of fairness when in fact he has no standing legally. His melodrama complete with a crying mom is textbook manipulation of the Indian media and public who consider personal sentiments above the law. Why has Bhagat been wronged? Because it does not appear fair – is the crux of the argument. Enforcement of contracts apart from ensuring law & order seems to be India’s shortcoming in almost all aspects of life thereby stifling business and economic growth.

Bhagat is an IIT/IIM graduate and probably is fully aware that he wouldn’t stand a chance in court but he fully understands India’s weakness for not enforcing contracts or adhering to law & order. Similarly our penchant for ‘competitive intolerance’ lets random previously-unheard-of religious or ethnic groups demand and get apologies from influential filmmakers for ‘offended sensibilities’. The failings of the judicial system might be partly to blame but the general tendency to mete justice mob-style is not frowned upon unless we are targeted. Bhagat doesn’t incite violent mobs but he sure does whip up the other equally potent weapon in India – emotional blackmail. Previously used by parents to get their kids married off, Bhagat is unabashedly using it to elicit a larger share of the Three Idiots success pie.

Law and Other Things cite the case of Slumdog Millionaire in bringing up the moral rights in terms of attribution. Danny Boyle and his producers acknowledged Vikas Swarup as the author of the book on which their movie was based although they were not legally mandated to. But then again, you can only appeal to the moral or ethnical leanings of individuals but cannot mandate or coerce action based on grounds of “do it because it feels right” unless it is enshrined in law. Bhagat’s failing was in recognizing the potential of his creative work and signing a weak contract. In the words of the Decider, he ‘misunderestimated’ the worth of his work and of course, at that time, he received adequate compensation. You cannot trapeze in after a movie has grossed crores and demand a higher and fairer share. Chopra and Co. may have entertained his tantrums in the media and would’ve been advised to keep mum and avoid the melodrama on their part. Instead, they could’ve asked him to sue them and ask to be seen in court.

One final question for Bhagat – can you please post your contract with the production team of Hello (based on your other book, One Night @ the Call Center)? I would like to see the terms of your contract with them and if similar, why didn’t you create an equally raucous scene back then?

Texas executes the innocents?

Cameron Todd Wilingham. Remember this name. He just might be one of the many innocent that the state of Texas has executed. No better case for abolishing the death penalty. Heck, as the article says, it is even cheaper to incarcerate a man for life than it is to execute him.

Sonia Sotomayor for the Supreme Court

Obama nominated Sonia Sotomayor to the Supreme Court following David Souter’s retirement last month, the first Hispanic woman to be nominated to the post. The nomination process is expected to go through smoothly but not without crazy outbursts from the far-right fringes of the Republican Party. But one at least expects them to get the name of the candidate they are opposed to right. Especially from a former Presidential contender.

End of War on Drugs?

Is the United States ready to end the War on Drugs at last? White House Office of National Drug Control Policy, Gil Kerlikowske said, “The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration”. As Lt.Carver said in the first season of The Wire, the war on drugs is not a war. Because wars end. It looks like this one just might.

Make Torture Universal

Now that most Republicans are comfortable with the idea of using waterboarding and other torture techniques as an effective form of interrogation, I suggest we use such techniques also to deal with criminals charged with homicides and rapes especially when the bodies of the victims cannot be found. After all, they are killing and harming Americans too.

Anjali Waghmare not afraid of the Sena

It takes a Waghmare to stand firm against Shiv ‘we-don’t-care-for-due-process’ Sena’s bullying tactics. Does the Sena know how easy it is to subvert the law based on experience hence its refusal to let Kasab stand trial?

Google Mistrials

Ubiquitous access to the Internet with the help of online tools like Google and Twitter are threatening validity of legal cases leading to “Google mistrials”.

Journalist Needs Help

After much brouhaha on the Supreme Court ruling last month regarding rights of expression online, it was summarized that this ruling merely implied that the defendant was not excused from prosecution. We can argue ad nauseaum about the merits of such a ruling but the fact remains that the defendant neither has not yet been found guilty nor has a precedent been set for blogger rights. Some bloggers had sounded the death knell for opinion blogging in India but I remain skeptical although I do believe that the current law elaborating on freedom of speech is anti-democratic and subject to rampant abuse. Any law that has exceptions for exceptions is. But you would expect the mainstream media with its high journalistic standards and professionalism to be much better than bloggers in PJs, right? Well, check out this article on IBN Live by Pallavi Paul [hat tip: Vimoh].

Do you open up most when you’re online? Well, don’t.

I love the way she opens her article by reprimanding you immature bloggers who shoot your mouth off at the slightest hint of injustice (or coffee stains). So if you want to be honest with yourself and share your feelings even if they aren’t libelous, Pallavi says no. Karan Johar would concur and says, parents know best. But then parents can’t blog either just because they finally figured out how to go online.

Thanks to a recent observation by the Supreme Court, which could become a template for all future cases.

I knew it! The Supreme Court saves all judgments and rulings as a .dot file and simply replaces the blogger’s name and their URL for future cases. Ok! that may be a bit unfair. We all know that typewriters are still the rage.

“There are so many charges against Ajith, such as x, y, z. Our constitution does not allow such activity so it is not acceptable,” says Cyber lawyer Karnika Seth.

Pallavi then quotes a cyber lawyer (sounds like a task for Chris Hansen), Karnika who I think may have told her what those “x, y, z” charges were. But you see, space is such a premium even online that you wouldn’t want to waste precious megabytes kilobytes bytes bits that would go into mentioning those charges that are so pertinent to this case. Unless the Constitution explicitly charges you with crimes against humanity if you blog using the characters x, y, and z. We’re a vowel-friendly nation.

There are punishments for posting obscenity, inciting public disharmony, intimidation, even defamation. The problem is that how will these laws be interpreted.

Err…that actually makes sense and sounds insightful in recognizing the core problem. Wait a minute, am I reading a blog?

In the heat of the Mumbai attacks, Cheytanya Kunte blogged against journalists revealing vital info on TV. He was forced to apologise by the channel.

Let me get this straight, after all the megabytes (yup, we bloggers buy memory by the megabytes) spent in discussing the Cheytanya Kunte case, you think he was punished for revealing vital info? What do you think he is, Abdul Qadeer Khan? He was charged with libel, threatened with a lawsuit, and asked to remove his post which he did. It wasn’t like a teacher saying “now go say sorry to your friend for punching him”. Even if we differ on whether his words were libelous or not, at least mention the correct charge that NDTV had lobbed on him. I don’t expect Watergate-ish journalistic research but use the damn Google. And what’s with “info”, seven more characters and your editor would have fired you? Or just too Twitter-ized? But given your “x, y, z” lines, this is Pulitzer-worthy.

Gaurav Sabnis complained about the standards of teaching at a Management institute. His write-up was forced off the net. Rashmi Bansal, who wrote about the same topic faced the music too.

Now we are entering territory that may makes Pallavi look absolutely inept as a journalist. As Gaurav explains, his “write-up” was NOT forced off the net and it still exists. The entire IIPM brouhaha was about forcing his “write-up” off his blog which he refused to do and resulted in IIPM getting bitch-slapped by the blogosphere. I again remind Pallavi of her research classes in journalism school or do as we bloggers do, use Google. But at least you got it partly right when you write Rashmi “facing the music” (we love our metaphors, don’t we?) Can you care to elaborate on the music that certain anti-social elements associated with IIPM were threatening her with?

The article then cites loopholes in the existing law by quoting Amit Varma and Rashmi Bansal. But concludes with a gem:

So, next time you upload a video to youtube or a photo to Flickr, message your friends on Facebook or update your blog make sure you aren’t breaking the law.

Bloggers, remember the “x, y, z” ways in which you can break the law? Pallavi asks you to remember those when you go about your Web2.0 ways.

What is not Libel or Slander

Remember my post listing ‘reasonable restrictions’ on free speech? It seems that the restriction based on libel or slander also have their own subset of exceptions defining what is and is not libel or slander. No wonder we have one thick Constitution.

Restricting Freedom with Excuses of Responsibility

The Indian blogosphere has been discussing the implications of a recent Supreme Court ruling reprimanding a Kerala-based 19-year-old youth for allowing so-called libelous comments on a community he started on Orkut. The plaintiff that was offended was the Shiv Sena who are widely regarded in the Indian political circles as a responsible and reasonable outfit . Their primary complaint was that by accusing the Sena of diving the country on communal ground, the youth has hurt public sentiments. Wait! Not the youth but the anonymous commenters on his community on Orkut had hurt public sentiments. After all, he should be held responsible for every unmoderated comment on a third-party social networking site, right? The popular opinion not only in the mainstream media or the people but also among bloggers is that if you have the freedom of expression you should use it responsibly. Sounds great, right? Almost conjures images of a teary Spiderman having awesome powers only to be shackled by responsibility.

The Supreme Court ruling said to the youth, “You are a computer student and you know how many people access internet(sic) portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.” I’m glad not to be a computer student because now I have no idea of how many people access Internet portals and can be exempt from blogging with responsibility. Jokes aside, although everyone agrees that we should blog with responsibility no one ventures into defining what responsibility is and how fragile public sentiment can be. Blogging aside, can political parties now simply cite “hurting public sentiment” by suing journalists who dare to investigate their actions during or after elections? If you say journalists are different, I ask why. They don’t seem to be limited by their professional ethics given the recent coverage of Mumbai attacks. By allowing criminal proceedings to be filed against the youth, the Court may have opened the doors for frivolous charges. Intimidation of ordinary people by merely threatening to file suit can be a viable alternative to squelch criticism. Will a blogger living outside India be required to come down to India for his ‘tareek pe tareek‘ for merely voicing his opinion against a certain individual or organization? Any reasonable individual wants to avoid going to court in order to stay away from a long legal process and this might be just the crutch ‘offended parties’ may use to stave off critcism. Even the Supreme Court admits this in Indian Oil Corporation v. NEPC (2006) [via]:

“a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement.”

But sadly, the law is not yet on our side. Clause (2) of Article 19 of the Indian Constitution elaborating on freedom of speech includes the following “reasonable restrictions” – security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to an offense, sovereignty and integrity of India. Please tell me how these restrictions are reasonable. As you see, anything under the sun can be categorized as an restriction to your freedom of speech. If I say something innocuous and that leads to couple of weirdos smashing shop windows in the town, all it does to get me into trouble is the weirdos saying that my words made them do it. My freedom of speech will be curtailed under “public order” or “incitement to an offense” restrictions. Shouldn’t actions be punished instead of words? Arundhati Roy regularly violates her freedom of speech rights by advocating independence for Kashmir thereby endangering “sovereignty and integrity of India”. But apart from calling her ignorant, I wouldn’t want to reprimand her for what she thinks as a solution to the Kashmir issue. This post in itself can be considered as a “contempt of court” since I dared to talk against the Supreme Court ruling. Where does it stop?

Preventive Custody – Valid or not?

As much as I detest the actions of the Sri Ram Sene and its head honcho, Pramod Muthalik, I don’t approve of this concept of taking a person into preventive custody. I know it has been used regularly by the police but it presupposes the act of crime and shows the inability of the police to preclude the act itself. I guess it is far easier to simply take a person into custody instead of actually preventing his actions but it sets a dangerous precedent of declaring a person guilty simply based on his statements for an act he hasn’t committed yet. Investigate him but remanding to custody is taking it a bit too far. It is not a crime unless he commits it and I don’t think it passed the smell test of ‘shouting fire in a theater’ or ‘bomb in an airplane’.

Now if the police had arrested him for his attack on the women in pubs, it would be completely understandable because it was a crime that was committed but the lack of action on that first act set in motion the events that followed. He wasn’t remanded to custody for his pub attack crimes but for something that he has not yet done. Unless the police act on actual crimes and not on uncommitted ones, we will have a confusing law & order situation.

Mind you, this is in no way condoning his stated actions and I couldn’t disagree with his regressive views more. If you think, this might not be the best time to raise the question of such ‘preventive action’ given Muthalik’s history but then when is it? Tomorrow it could be you for a far more innocuous thought that you simply expressed aloud and had no intention of carrying it out. Any legal experts out there who would like to shed more light on this issue?

Barber Barber Dekkho

This news was inevitable and only the first in the long list of events if we let competitive intolerance go unpunished. A billion souls and at any given point someone is getting offended at something. The problem is caused not because of their opinions but because of the capitulation that follows such frivolity.

Interrogating a Terrorist

As soon as the news that the Indian security forces had captured one of the terrorists (Mohammad Ajmal Amir Iman among other aliases) in the Mumbai attacks alive trickled out, there were umpteen suggestions on how best to extract information from him. None of which included treating him humanely and why should we? Especially when we had him at a time his colleagues were still killing Indian citizens and we had no clue how many else like him were out there. The favorite mode of interrogation of the Indian police is as they say, tire mein daal ke dhooneka (hang him from a suspended tire and bash him like a piñata) until he blurts everything out. Without prejudging the Indian forces mode of interrogation, the news that followed had him singing like a canary giving us details of his origin, training, and of course, Pakistan’s involvement.

But what was the general opinion among the populace on future interrogations? Based on my conversation at the katta or naaka (neighborhood hangout spots) while in India, most prefer the piñata treatment. I’ve been guilty of having that opinion not too long ago too. But do such methods work? What prevents the terrorist from giving us wrong information or even the information that he perceives we want to hear just to make the beating stop? How is that useful to our national security interests and more importantly global image considering such torture tactics are considered inhumane even for terrorists? If you argue that such despicable people should be treated in a way they deserve then frankly we lose all moral standing and there exists no difference between them and us only seeking to reinforce the recruitment tactics their higher-ups use to lure misguided youth. And when we end up trying the captured terrorist in a court of law (because that’s what civilized nations do) then there is the danger of excluding any evidence obtained from those torture sessions.

Why do you think George Bush is so reviled by his countrymen although he portends to keeping his countrymen safe ironically by sanctioning the very acts that his enemies are capable of. Nitin is absolutely right when he says, “America’s greatest mistake after 9/11 was Guantanamo Bay. India should not make the same mistake.” India should focus on following the letter (and spirit of) law and try the terrorist in the court with proper legal representation. That is the only way we send a strong message to people like him that regardless of their barbaric methods and outdated thinking, we are still a civilized nation.

On a related note, if you think we still need the information that can be had by the piñata treatment then check out Air Force officer and Guantánamo Bay interrogator Matthew Alexander’s (a pseudonym) book, How to Break a Terrorist. Coming from a man who did the information extraction for a living, his word is more valuable than my opinion:

“The quickest way to get most (but not all) captives talking is to be nice to them. But what does it mean to be “nice” to a subject under interrogation? … It means, ideally, getting to know the subject better than he knows himself and then manipulating him by role-playing, flattering, misleading, and nudging his or her perception of the truth slightly off center. The goal is to turn the subject around so that he begins to see strong logic and even wisdom in acting against his own comrades and cause.”

And there is that danger of having the wrong man because not every day will you catch a terrorist red-handed. Heck, it might be someone from your family or even you. Do you want your brains bashed in for some information that you don’t have?

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