|NUJS LAW REVIEW & FICCI SYMPOSIUM ON PRIVACY, FREE SPEECH AND TECHNOLOGY
(Session 1 Speaker 1)
Hello, and it’s very nice to be here in Kolkata and thank you for having me here. This is a city, of course, with many happy associations and the city of my childhood. I am very happy to come back here. My husband often remarks that my mood seems to lift even before I’ve actually landed in Calcutta so here I am.
Any discourse on free speech in this city is of special significance, because this has been the nerve center and hub of art, literature, music, dance, films and intellectual discourse. The ‘adda’ originated in Kolkata. Therefore, with its straight traditions of free speech, I think it’s a matter of great disappointment that a professor from this city should be taken to task for his irreverent cartoons or authors who write provocatively and maybe, defensively, should be denied entry into the city. I think Kolkata, and the state of West Bengal, has been far more robust and broad-shouldered than that. I think we can handle much more than that and I think Kolkatans are made of much firmer stuff.
The freedom of speech is ultimately a notion, a very dynamic notion, that takes new colour and acquires new dimensions with changing times and evolving technologies. In today’s context, the freedom of speech means a myriad of fascinating things. We continue to have the traditional, classical media, which is books, newspapers, art forms, cartoons, films, dance, theatre, music. We also, of course, have television, the internet and social media. We also have the mobile phone which is not just a means of communication but also a source of information and entertainment. With all these different forms of media, it may be difficult to have a common regulatory framework and from a censorship standpoint, all these different media, they have such different nuances that they cannot be treated all alike. For example, when we think of the internet and think that the damage that something on the net can do is far greater than what a book can do, for example. Therefore, it’s, at a certain level, acceptable that censorship rules would be different for the net. We’ve seen, for example, only a few months ago, the young Boston bombers, how they were indoctrinated and how they derived inspiration from the speeches of a Yemeni cleric, which they downloaded from the internet. This man, of course, the cleric, had been dead for some years now but still draws that kind of awe and inspiration. These young men also learned how to make the bomb from materials which they accessed on the net so the kind of damage that media is capable of is incalculably greater. Therefore, perhaps, all of these different media are treated a little differently but underlying all of them is the constitutional freedom of speech and expression under Article 19(1)(a).
I think the game-changer in the last few years has been technology and technology has encouraged the normal private individual who would otherwise have no interaction with the public sphere and suddenly thrust him or her into the public domain. This is interesting because free speech is not just important from the media standpoint or from the view of those who are actively involved in the media but those outside, ordinary people like you and me, because their daily routine is, by virtue of technology, entwined with free speech. Whether it’s texting or blogging or tweeting or using Facbeook, all of this is eventually about the exercise of free speech. Technology, by its very nature, makes all of us so exposed to the public domain. For example, earlier, before we had these technologies, the individual was shielded from the public domain but now we are thrust in the public domain and wittingly or unwittingly, and this makes us more vulnerable for what we say or do not say. Also, in a sense, it violates our personal space in a manner that we do not recognize. Foe example, if you’re in the mall, there may be a CCTV camera which is capturing you or a roaming mobile phone with which photographs are being taken. It may be the Aadhar card which you are required to apply for and disclose all sorts of personal information which may be used and abused in so many ways that we cannot imagine. It just may be blogging or using Facebook. All of this has important complications for us because it has blurred the boundaries between the public and the private. In other words, what I am getting at here is that free speech is no longer just a media concern. It is, much more, then ever before, the private individual’s concern.
As I said, technology has been the game-changer and it’s interesting to see how the internet has panned out in so many different ways. On the one hand, it’s been this hugely liberating medium, I think we all recognize that but in some ways, it has also been a very limiting medium and I will explain this paradox. Liberating, of course, because it’s just revolutionized the game. I had finished most of my education before the internet came on the scene and I cannot tell you how transformational it has been for some of us who grew up without it. The reach, the speed, the access is just phenomenal. It’s also provided, in the last few years, that alternate space for people to find expression. People who are not influential enough to get their articles published in the Times of India and other leading newspapers, they suddenly have an option to find expression. In that send, it’s been a great democratizer of free speech. I think that in the aftermath of media scandals, whether it’s the Radia tapes expose or paid news, there has been a huge trust deficit in the mainstream media. This has really thrown up the guild for an alternative space and I think that social media has led the race. We’ve seen how the Arab Spring was catalyzed by social media. That’s, of course is a very liberating impact of the internet. But there is another side to it, which is, as I said, a very limiting, inhibiting side. Let me explain this. No matter how globalized how the world is today, there are some fundamental value systems which are unlikely to converge, no matter how much the world has shrunk. Ultimately, we should let every nation, every people, every society determine for themselves which core values should be a part of their constitution. It’s nobody’s business for anybody to be judgmental about what a society chooses for itself.
So, you have on the one hand, western democracies which allow for a more robust kind of free speech, perhaps even to the extent where in the US, you have the right to burn the flag. You have that on the one hand and then you have other jurisdictions which do not allow for such a robust right. Difficulty arises, when by virtue of technology, speech which is perfectly permissible and constitutional wafts across the web and finds itself in another jurisdiction where it might not just be proscribed, it might be outrageous, it may be blasphemous, it may be punishable with death. What happens then? I think we’ve seen the mindless mayhem about two years ago, with the release of a film on the Holy Prophet on the web. We’ve seen the consequences of that. It’s the sheer seamlessness of the media which has rendered us helpless, in the sense that we do not know who our audience is anymore. The notion of a select audience, a limited audience, an intended audience is a thing of the past because the whole world, as it were, has been transformed into one single theatre. That is, in some ways limiting, because what is to happen to a citizen who says, “Look, my constitution give me the right to offend” or a much more robust right of free speech. Is he entitled to exercise those rights to the fullest or must he restrict himself to the sensibilities of others in other jurisdictions. Alternatively, does this make a case for barriers to be set up? Does it make a case for some kind of internet regulation? Do we need some form of censorship only to ensure a more robust kind of free speech? This is, again, a paradox but it’s something to think about.
When we talk of free speech, my own views are that we have had a fairly free and feisty media in India which some would even say is too free. I would agree in the sense that we have had such sliding standards of content and of quality, a lot of which we see on television and in newspapers. Then, some feel the need for regulation. However, unlike in the past when there was much more direct interference by the government with the rights of the media, I don’t think there is such interference anymore. The days of Romesh Thapar, Sakal Newspapers, Bennet Coleman, when there was real confrontation between the government and the media is no longer in force and has reached its absolute low point and I no longer see that anymore. What we do see is that there are other challenges like censorship from within. I see that censorship comes from within the media. For example, you have various forms of censorship. Any form of publication involves some amount of censorship. For example, do we publish this story at all. How much space do we give to it? How much prominence do we give to it? This may be guided by various factors like political proclivities, different philosophies or pure commercial reasons and the disturbing this is that, only two weeks we had a SC judge and a Calcutta journalist speak on the subject. What they said was that today, increasingly, the genuine players, the senior journalists who are gradually getting squeezed out of the mainstream media and what you have is the mafia and all sorts of commercial interests taking over. That is a serious threat to free speech. Economic censorship is something to be thought of because that is something that creates commercial pressures which will impact free speech in the long run. But I think, overall, as far as the mainstream media is concerned, by and large, there is so much multiplicity and plurality, whether it’s newspapers or TV channels, that is really going to be the best safeguard for free speech. The threats of free speech are really going to be face by small individuals, whether they are film makers or authors or cartoonists, they are much more vulnerable. Another disturbing trend that we have seen is parallel censorship, extra-constitutional censorship where one group representing one group or community saying, “I find this film completely offensive and even though it may have been cleared by the Censor Board, we are going to disrupt things and create law and order situations.” That State, instead of ensuring that law and order is not breached, seems to become a supine spectator or even a supporter of that kind of parallel censorship. That is very unfortunate and there is a host of vote bank politics that plays out behind it. You see it with Aarakshan, which was cleared by the Censor Board and more recently, you see it with Vishwaroopam. The threats are not at the level of the mainstream media because the government needs the media. It’s important for them to keep the media on the right side. I think Justice Ganguly touched upon privacy as an aspect of Article 19 and I will just make a few remarks.
I mentioned, at the beginning, this exposure of the private individual (perhaps unwittingly) to the public domain and I’m going to make a mention of one case which shows how nuanced a right privacy is. That’s a case from the UK called Peck v. UK (2003). If I could recount the facts very quickly – there was a man who was undergoing severe depression and he decided to commit suicide by slashing his wrists on a public street outside his home. While he was doing this, there was a CCTV camera which captured it and an alert operator alerted the police and the police rescued this man and saved his life. The local council thought they had scored a point there and decided to extol the virtues and benefits of having a CCTV camera. They put it on television for thousands of people to see and the man went to court and said it was a violation of his privacy. The court asked him what he was talking about since he had done it on a public street. Finally, he lost in the UK and had to go to the ECJ and this court held in his favour. It held that even though he had been on a public street outside his home, he was still entitled to privacy in the sense that his reasonable expectation was that he would have been seen by passers-by but not by thousands of people on national television. This case tells us that privacy is such a nuanced right. It is not even a spatial concept. It does not mean that within the confines of my home, I possess privacy and once I step out, I have waived these rights. That is interesting from the privacy point of view. All of us, in some form of another, face this challenge. For example, if there is a photo on Facebook, you feel so exposed because people you may not have wanted to see that photograph have seen it because somebody else has seen. Also, there are time when I am faced with a select audience and I know who I am talking to but once it’s tweeted out, we don’t’ know where it’s going. This notion of an unknown audience is an important thing.
(Session 1, Speaker 3)
Thank you for inviting me to the speech. It is very difficult when all the three speakers, who have worked in the field, have spoken. They have covered most of the issues involved in it. The whole issue of Hate speech, till now we have spoken where people have been arrested, how actions are taken and how people are prosecuted. There are a whole lot of people who are not being prosecuted and sometimes we feel there should be prosecution for hate speech. There is a very thin line between free speech and hate speech and that thin line is something which has to be decided. When to draw the line, who should draw the line and what should be the criteria for drawing the line, because what we have seen in the UP riots or for that matter the Gujarat riots is that these people never get arrested, those who do hate speech and for that matter in this state also, the chief minister says she has the right to free speech and for that matter in Maharashtra, the MNS leader thinks he only has the right to free speech and nobody else and nobody else can say anything about him and this is the whole issue where it starts and this whole culture of intolerance towards saying anything against a leader or a party or anything. Like the recent incident about national anthem which Madhavi mentioned. I don’t know whether it was reported in the newspapers here, but, an actor’s wife went for a movie in Bombay and I don’t know whether it is practiced here but, before every movie in Bombay you should stand for the national anthem and its little bit surprising that in such a big movie, why should I show my patriotism. It is because RR party wants it. RR party brought this thing that before every movie there has to be national anthem and everybody has to stand. So, one gentleman who was actually not a citizen of India, but, an Australian decided not to stand and was beaten up and instead of taking action against this lady, the police came and failed to take action after the movie. She made a confession on the front page of the leading newspaper that yes, I slapped the man because he did not stand for national anthem. Who gave her the right and no action was taken against her and we don’t know what action will be taken against her. The whole issue is also of intolerance that is growing with technology. Are we becoming more and more intolerant when we have so much technology and free speech available to us. I am going to discuss few cases with which I am involved or the court has dealt with and this shows the way the state are dealing with, political parties are dealing with and that we should lay down, bring out principle of free speech and only then we can proceed further in this debate because of Art. 19(a) and certain restrictions have been put in because there is also a clause which says morality. So, whose morality it is ultimately we are going to decide while talking about free speech and the whole coming down on free speech and on people, cut across political parties, cut across political lines like it has nothing to do with hardline or right wing or left wing or someone in the centre. Everybody wants to appease the people and wants to say that we are much better than the right wing, i.e. what is happening, especially in Bombay and Maharashtra like when the Shiv Sena, BJP government was there, they did not ban the dance bars, but when the Congress and the NCP government came, they banned the dance bars and we know what has happened all these years. Women have lost livelihood and now even though the Supreme Court has said they can open, none of the dance bars are open. But, going back to some of the cases which I wanted to discuss and which happened in different states, which also shows that it is not only in one state it happens but, across all states. The Shilpa Shetty- Richard Gere case which happened in 2007-2008, I don’t know how many people are aware about this. Richard Gere is an actor, who we all know and Shilpa Shetty was an actor from India and they were working on an event around HIV Aids with truckers in Jaipur, Rajasthan and around that time or a while before that Gangs of Wasseypur was released in India and he just happened to be there with Shilpa Shetty and he asked “can we have a dance” and then they came together and there was a less than 30 seconds dance that they did on stage and that offended the people of Rajasthan and the dance was shown and there was no kiss involved, no peck involved, it was just a simple dance. The whole issue is that magistrates issued processes in Ghaziabad, Jaipur and Alwar. So basically, these actors who came to promote an event on HIV Aids have done something that would completely not offend anybody’s sensibilities. But, the magistrates issued processes without going into what it is. But, there is also somewhere, as Gita said , the issue of lower judiciary. How the lower judiciary reacts to a certain situation just because some big lawyer is coming before the court and arguing the matter. Are you going to issue a process without looking into it. Finally, the case still stands against Richard Gere and Shilpa Shetty. The Supreme Court had transferred all the cases to Bombay but, the case still continues and we are still waiting to know what happens. Clearance has not come to Bombay yet.
The second case is about the Kabir Kalamanch. I don’t know whether you have heard about this case. Now these are artists protesting about various issues like corruption, price rise, and various issues they were protesting about. But, the whole issue is that the governments are saying “you can’t protest against us and the moment you go against us. We will prosecute you” and that is exactly what happened in the Kabir Kalamanch’s case. Majority of the group members who are singers, musicians and whose videos are available in Youtube. Some of the songs have nothing to do with revolution or even with protests. One of the song “maaji ma” is about a mother’s feelings, mother saying about a child. This lady is being prosecuted. The whole thing is, again when it comes to court, the court has been generous in this case and granted a bail to majority of the Kabir Kalmanch people but, many still remain in prison. While granting bail, the court also said that it is something to do with protest which comes in Art. 19 and the government cannot muscle the right to protest just because someone is against the government policy.
The third case I wanted to mention was the case of Khushboo, a nationalist from Tamil Nadu, you must be knowing and in 2005-06 there was a survey done by India Today on sexual patterns and sexual behaviour of the people and there was a question asked to women “whether they will have pre-marital sex?”. Majority of the women didn’t say we would not and this was the question asked to Khushboo by India Today specifically, what will you say about it and she only said that there is nothing wrong about it, and if women indulge in it they should use proper protection as there are risks in premarital sex and she was being prosecuted. Several cases across Tamil Nadu were filed. Political parties were involved in filing these cases. The High Court refused to grant any relief to Khusboo and finally, the Supreme Court came to her aid and granted her release. This is a long battle she had to fight and what happens is, looking at these cases and defending these people involved, at the initial stage when the case is filed, everybody is with you. The media is with you, protest groups are with you and ultimately when the case prolongs it is a lone battle you are fighting. Nobody is with you and after 1 year or six months and it is only for that person to keep on going to the court and face the harassment. Complainant hasn’t come, but the magistrate won’t close the case and especially these kind of cases, the case is filed by social activists and there should be something. This exactly happened in one of our cases which I’m going to discuss like the Greenpeace cases which we call the “slap litigation” happening across the country. Every time Greenpeace raises an issue about the port that is coming up in Orissa built by L&T and Tata, a case is filed against them that they cannot protest here, they cannot protest there. So, one case was filed in Delhi, one in Bombay, of course, with some modifications. High Court did give them release saying Greenpeace can protest, but at a certain distance. Sometimes, the company may hear you and sometimes no one takes cognizance of what you say. Like the whole issue of protest in Bombay or Delhi that happened, there are judgements of the court saying in this vicinity you can’t protest. So, in Bombay you can protest only in Azad Maidan and if you get permission to protest in Azad Maidan make sure nobody is listening to you because many times when you go to Mantralaya and say people are protesting. The government says let them protest, who can hear them in Azad Maidan. This is the reaction to this thing. Why should the people not protest in any other part of city? Because, it is said in an order of the Bombay High Court in one of the cases that judges pass on these roads, ministers pass on these roads and thus, there can be no protest in these roads. There is a pride march that happens every year in Bombay, Ganapathi festivals are allowed in Chowpathybut, every year, pride march asks for only one permission. Within 10 minutes allow us to cross the road to disperse at Chowpathy. We will not stop at Chowpathy and we will not do anything. But, the police refuses to give permission just by saying that there is High Court order that excepting Ganapathy Puja and Christmas there can’t be any other protests. And I don’t understand the logic. Well, I’m only saying that somewhere there is a basic understanding, being the state and the people who are doing these things and police and also the judiciary is not coming in favour of free speech. Of course, as I said earlier, there are releases granted by the judiciary and probably they would not have released people who continued to remain behind bars. But, continued to prosecute these people. In the case of a writer who writes story books for many years. He wrote a book about life in Bombay, short stories it was and this particular book was published two years before the complaint was filed and in one particular story , a builder is taking out a chaul which is full of Maharashtrians and the resident is Maharashtian only and the builder was also a Maharashtrian and the builder was shown as a villain in the story. This was condemned by state of Maharashtra that how can you call a Maharashtrian, a villain. Without looking into the book, without looking into the story it was. The magistrate only picked up that word and said that an investigation under section 163 be carried on by the police. Eventually, the police filed a report that no case is made out because there is only one word of “ghati” being used and the complaint has nothing to do in the context. The person is not calling all Maharashtrians as ghati. The magistrate rejects the report and says that move on with investigation. Instances I can’t understand, that even after the police files a report that no case is made out, still the magistrate says the case is made out. Of course, we went to the High Court and got relief for the person and the case was quashed out. But, the whole thing has been traumatising for the person going through this. He is not sure what the relief he is going to get and how the court’s order will come and why he had to go through all this process. Just because one person’s sensitivity has been disturbed by that word. That is something which is disturbing.
Then there is this case of a sedition which has been used against all people and there is the recent famous case of AsimTrivedi. You may not agree with one of his cartoons and I may not agree with one of his cartoons, the court also said that his cartoons are in bad taste. Bad taste is different from sedition. Just because you drew the parliament in a way you may not agree with. The lawyers agree that you may not agree, but he still has the right to protest and still has the right to draw what he wants to draw and the cartoon has not harmed anyone or caused violence in society. So, how can you prosecute someone on sedition and what is sedition? Are you saying that he is going against the state by drawing the parliament or Ashok Chakra in a particular way. Again he explained what the cartoons are meant to be. It was a protest against the corruption issues and protest against the work going on but, still he was arrested by the police. He was granted a bail by the High Court. The lower courts did not grant him bail. And now the petition to quash the proceeding is pending before the High Court. And in this process, since the people have realised that this case is going to go away, they have filed cases in small places like this place in Maharashtra, particularly he is travelling to these places. Why does he have to do this?
There is this interesting case of one Sunitha Phule. Now this is like how you use the defamation law to curb free speech. She is basically an environmental activist from Bombay who has worked with the Times of India and also on their CSR for the environment and she realised that illegal cutting of trees is going on near her neighbourhood and this friend informed the police and gave a complaint saying that trees are being fallen and probably no permission has been taken regarding these trees and on the basis of complaint, of course, the investigation was finally done, the police filed the C summary report as neither true nor false and they came to us much later that report was not challenged. But, on the basis of the report and complaint, a defamation case was filed against her saying that she defamed me by saying that I was doing an illegal act and this defamation case was going on since 2003 for 10 years. Every time, Sunitha has to go to court, magistrate is not interested in taking her case. The complainant hasn’t come, but the case is not dropped. But, when she was not present, warrant was issued against her. How do you deal with this.
And finally this is very interesting case of one author called Rashmi Bansal, who was an editor of a magazine in Mumbai, which was targeting young people. It was called JLT (just like that) I’m not very sure of the name, probably that. On World Aids day, she published an advertisement, on the top it was clearly written in context of World Aids day. Around 2006-2007, the rate of HIV was very high and government was doing many things to keep it down. Probably, now the government are stating that the rates have come down. But, at that point of time , the rate were very high and everywhere there were advertisements. So, this ad was put in context of World Aids day in the very same page and below it was written “kadha hai toh condom pehen” it was very understandable for anyone by what she meant. I do not have to explain what she meant . It was clear thing that use condom for preventing HIV. But, again some right wing group saw the magazines and said that let’s file a case. They go to police station, that person reaches at 5 o clock. By 6 pm a FIR is registered against Rashmi Bansal and not only one FIR. That person contacts other persons in Maharashtra and cases are filed in other districts of Maharashtra also. This is going on for so many years, 7-8 years. She tried for quashing in the High Court but, it did not work, the court said no. The whole issue is about hurting religious sentiments and §294 with intention. Where is the intention here, the intention is very clear, and whatever it was she issued an apology next day. Immediately the government came to know about this thing. We tried to write to government to withdraw these cases against many of these activists saying that they are intending about social cause or something. But, we have a home minister, I think, I don’t know what his thinking is but, he said no. Yeh hinduo ka apman hai. Where is the incitement to Hindu, the intention is clear, the message is very clear. The entire issue is becoming caste centric, which is what I think because it is always left to the individual magistrate, the seessions judge , the high court judge. There are no principles that have been laid down. What is hate speech, when will a person be prosecuted. Whether there is a need for something to happen and then we will prosecute or it may be just I felt bad and it may hurt religious sentiments and so case is filed. All have been a gamble, like which court it will got to, which bench it will go to, why should we do that, why can’t there be basic principles which are laid down and said that under these thing it is a matter of free speech, you cannot prosecute the people. As I said earlier, any form of protest is being muzzled by the government and courts are not fully coming to the rescue of the people and things when it comes to hate speech. Many times the courts takes suo moto actions, many times in environmental issues. When it comes to hate speech, no court takes suo moto action. Knowing what has happened, there is no single case where we have seen that the court has taken suo moto action on basis of hate speech also, knowing and realising what are the repercussions of the hate speech.
At the end, I would only say that, this is not because it is said in the Delhi High Court. It is not your morality or my morality. It is not my religious sentiment or your religious sentiment. What should be the touchstone is the constitutional morality which should be the point for all these cases when they are deciding or whether at the threshold anybody should be prosecuted or not. Whether the constitutional morality is being challenged and only then we should proceed with the filing of the case or prosecution against a person because his liberty is extremely important and it is not only that one day a person goes inside the jail. It is a traumatic experience and this experience remains with the person for a long time and this repeated comings for the activists, they are seasoned activists. But, they also breakdown after coming to court for 10 years continuously and nothing is moving. They break down and done with it and I don’t want to do this anymore. A person other day cried before the magistrate and he only said don’t cry before me, I can’t take all this, I can’t do anything, your complainant is not coming. But, he filed an application saying complainant is not coming close the cases but, the complainant did not come for more than one and half years and repeatedly dates was given but, no action was taken. That is all I want to say. Thank you so much.