Law as weapon

Source: Indian Express dated 21.05.2020

Misuse of Epidemic Diseases Act by government must stop. Else, court must step in to protect citizens’ freedoms

A dharna in Agra over the movement of buses to ferry migrant labour led to the arrest of the Uttar Pradesh Congress chief Ajay Kumar Lallu and two of his party colleagues — all three subsequently got bail. Amongst the laws weaponised by the UP police to detain the Opposition leaders is a late-19th century statute, The Epidemic Diseases Act. Drafted by the colonial state in 1897 “to take special measures and prescribe regulations” for “the better prevention of the dangerous epidemic diseases”, the law has been summoned in the past to deal with outbreaks of cholera, swine flu and dengue. But its heavy-handed and arbitrary use, or misuse, during the fight against the COVID-19 pandemic is new. Patients, journalists and Opposition leaders have been at the receiving end of this blunt instrument that does not actually define an epidemic, leave alone a pandemic.

Of course, combating COVID-19 does require extensive surveillance, including identification of the carriers of the virus and their contacts. But in most parts of the world, including India, a growing body of literature has underlined that such extraordinary measures are best undertaken by taking citizens into confidence, using persuasion and involving the community. At several places, however, the state authorities are giving the go-by to these imperatives and asserting state power in heavy-handed ways, by taking cover under Clause 4 of the Epidemics Act — actions taken under the law are provided immunity from “legal proceedings” for they are deemed to have been “undertaken in good faith”. In early April, when knowledge of the virus was still uncertain among large sections of the people, an FIR was slapped against the family of a Bengaluru technician, who had contracted COVID-19, for “hiding information”, and they were charge-sheeted under the Epidemics Act. Also last month, the Mumbai Police invoked the law to arrest a journalist, alleging that his social media posts led to unrest among migrant workers in suburban Bandra.

A toxic mix of the Disaster Management Act, 2005, Section 144 of the CrPC and the Epidemics Act may well be on its way to becoming the new sedition law, which has been invoked with disturbing frequency in the recent past to criminalise criticism and dissent. Last week, the Gujarat government combined the sedition law with the Disaster Management Act to charge a journalist for reporting that Chief Minister Vijay Rupani may be removed by the BJP High Command for his handling of the pandemic. Also last week, this paper reported that at least four FIRs have been filed against journalists in Himachal Pradesh for highlighting the condition of stranded labourers in the pandemic. The FIRs allege that these reports are “fake” and “sensational” news; the cases are being investigated. But governments must realise that the discourse on citizens’ rights and public health has moved on from the times when the colonial government charged Bal Gangadhar Tilak for sedition for criticising its handling of the 1897 bubonic plague. Else, the Supreme Court must intervene to allow people to voice their opinions freely during a crisis, and especially in a crisis, without the threat of their being criminalised.

Safeguarding free speech from threats is important

Source: Hindustan Times dated 28.01.2020

-- Madhavi Goradia Divan (Additional Solicitor General of India)

REASONABLE RESTRICTIONS: The enumeration of specific subjects in Article 19(2), on which the freedom of speech could be restricted, kept a check on excessive inroads into the right

When early drafts of the fundamental right to freedom of speech were put before the Constituent Assembly, members protested that the right was “riddled with so many exceptions that the exceptions have eaten up the right altogether.”

The framers of the Constitution drew from the example of the Irish Constitution by providing specific subjects on which the state could make law to restrict the freedom of speech. This was markedly different from the US Constitution, under which the freedom of speech was not mottled with exceptions, and was “absolute”, at least on the face of it.

There was a lively debate before the Constituent Assembly on what the permissible exceptions should be. Eventually, when the Constitution came into force on January 26 ,1950, the only grounds on which the fundamental right to freedom of speech and expression could be restricted were “libel, slander, defamation, contempt of court or any other matter which offends against decency or morality or undermines the security of or tends to overthrow the state.” Notable exceptions which found themselves in earlier drafts but got dropped in the end, were “sedition”, “public order”, “class hatred” and “blasphemy”.

Only a few months into the republic, the newly minted fundamental right to freedom of speech and expression under Article 19(1)(a) was put to test. The restrictions under Article 19(2) were invoked by three state governments to clamp down on select publications.

In Bihar, the government cracked down on a provocative political pamphlet. The high court rejected the state’s contention and that view was upheld by the Supreme Court in State of Bihar v Shailabala Devi.

In Madras, the state banned Crossroads, a communist weekly published by Romesh Thapar who was famously critical of many of Prime Minister Jawaharlal Nehru’s policies. The Supreme Court struck down the ban and the law under which it was issued, holding that nothing short of a threat to “overthrow the state” could justify a restriction on the freedom of speech under Article 19(1) (a). A breach of order of a purely local significance could not meet the test. This was followed in Brij Bhushan’s case, where the court struck down a pre-censorship order on the Organiser, a weekly run by the Rashtriya Swayamsevak Sangh.

Upset by the rulings, Nehru wrote to the then law minister BR Ambedkar, expressing a need to amend the Constitution to contain subversive activities. But on the floor of Parliament, Nehru justified the need for an amendment, not on a political ground but a “moral” one.

This was curious given that the occasion for the amendment was the three unfavourable rulings. Taking the moral high ground he said, “It has become a matter of the deepest distress to me to see from day to day some of these news sheets which are full of vulgarity and indecency and falsehood day after day not injuring me or this House much , but poisoning the mind of the younger generation, degrading their mental integrity and moral standards.”

In a speech which acquires special relevance in times of rampant and reckless fake news about seven decades later, he complained that “from the way untruth is bandied about and falsehood thrown about it has become quite impossible to distinguish what is true and what is false.”

The first amendment to the Constitution in 1951 expanded the exceptions to the freedom of speech to eight from what were originally four. Public order, security of the state, incitement to an offence and friendly relations with foreign states were the new insertions. One redeeming feature was that the subjects of restriction were prefixed with the word “reasonable”.

In 1963, a new ground was added: “in the interests of the sovereignty and integrity of India”. But despite the increased subjects of curtailment, seven decades of working the Constitution tell us that the enumeration of specific subjects in Article 19(2) on which the freedom of speech could be restricted, actually kept a check on excessive inroads into the freedom of speech. The addition of the word, “reasonable” helped to reign in the restrictions, even on the eight permissible grounds. Each restriction was required to meet the test of proportionality. The enumeration of restrictions, once condemned as eating up the right altogether, have emerged, somewhat paradoxically, as its protector.

In the landmark judgment Shreya Singhal v Union of India, comparing Article 19(1)(a) with its American counterpart, Justice Rohinton F Nariman held that while under the Indian Constitution, the right could be curtailed only on the eight grounds specified under Article 19(2), the American Constitution was not constrained by such limitations and the restrictions could travel beyond, so long as there was a “clear and present danger” to a competing right. The belief that the freedom of speech under the American Constitution was absolute was therefore, a misnomer.

Article 19(2) is organic enough to take care of challenges that might not have been envisaged so many years ago. At the forefront of civil liberties in recent times, is the right to privacy. Now recognised as a fundamental right, privacy concerns need to be balanced with the freedom of speech. Article 19(2) does not specifically mention privacy. But it does mention “decency and morality” as exceptions to free speech, and these exceptions are not limited to affording protection only against obscenity – they are broad enough to make space for privacy, an important “moral” value in any decent civilised society.

In Kaushal Kishor v Union of India, the Supreme Court, usually a staunch and steadfast guardian of the freedom of speech from the early days of the republic, decided to refer to a bench of five judges the question of whether the freedom of speech could be curtailed on grounds beyond those specified in Article 19(2), and whether Article 21, which has been stretched to include everything from the right to sleep to the right to a toilet can be invoked to introduce further curbs on the freedom of speech.

While the right to life and personal liberty under Article 21 in its many resplendent avatars, is vital, so is the freedom of speech and expression. We, in India chose to adopt the Irish template and consciously departed from the American one. The framers of our Constitution were careful to minimise the restrictions in Article 19(2), while seeking to ensure that all the social values which need to be protected from reckless speech found place in Article 19(2). Articles 19(1)(a) and 19(2) strike a good balance between protecting both free speech and other competing rights. There are grave dangers in opening a back door for inroads into Article 19(1)(a), particularly through a right as elastic as Article 21. Article 19(2) draws a Laxman Rekha and it is important, in the interests of free speech to stay well within that threshold.

Singapore ‘fake news’ law could hurt innovation, fears Google

Source: Hindustan Times dated 10.05.2019

Agence France-Presse

Singapore makes fake news publishing a crime

A law criminalising publication of fake news was passed in Singapore. It allows the government to block and order the removal of such content. The law bans falsehoods likely to influence polls. Offenders could face up to 10 years in jail.

TECH FIRMS, RIGHTS ACTIVISTS AND JOURNALISTS FEEL THE NEW LAW COULD BE USED BY THE GOVERNMENT TO CURB FREEDOM OF SPEECH.

SINGAPORE: Technology giant Google said on Thursday Singapore’s new law against “fake news” could hurt innovation, a crucial element in the high-tech sector which the government is developing as an economic growth driver.

The parliament on Wednesday passed legislation that gives ministers powers to order social media sites such as Facebook and Twitter to put warnings next to posts authorities deem to be false and in some cases have them taken down.

If an action is judged to be malicious and damaging to Singapore’sinterests,companiescould be hit with fines of up to Sg$1 million (US$735,000). Individuals could face jail terms of up to 10 years.

Officials have said the law does not cover opinion, but will focus on fighting outright falsehoods carried on social media that can foment disorder in the ethnically diverse nation.

Ordering “corrections” to be placed alongside falsehoods will be the primary response by government officials rather than fines or jail terms, they said.

“Misinformation is a challenging issue and we are working hard to address it,” a Google spokesman said, a day after the Protection from Online Falsehoods and Manipulation bill was passed. “We remain concerned that this law will hurt innovation and the growth of the digital information ecosystem.

“How the law is implemented matters, and we are committed to working with policy makers on this process.”

Singapore has been expanding its high-tech sector and has convinced many of the world’s top companies to establish their regional offices and key facilities on the island.

The apex court must not stifle commentary on sub-judice cases

Source: Hindustan Times dated 12.02.2019

GAUTAM BHATIA (Gautam Bhatia is a Supreme Court advocate)

Article 19(2) of the Constitution only allows for speech to be restricted through a law made by the State

OFFICERS OF THE STATE WHO WIELD POWER OF THE KIND THAT JUDGES DO, ARE EXPECTED TO HAVE SHOULDERS BROAD ENOUGH TO SHRUG OFF FIERCE, EVEN VITUPERATIVE, CRITICISM

Earlier in February, the AttorneyGeneral of India, KK Venugopal, filed a contempt of court petition against the lawyer, Prashant Bhushan. The latter had accused the government of “misleading” the Supreme Court in the case involving the appointment of an interim director of the Central Bureau of Investigation (CBI). Venugopal argued that this was a false accusation, and undermined the course of justice.

It is unclear whether Bhushan’s statements amounted to contempt, since they were addressed to the government (and not the court). However, during the hearing on February 6, events took a new and alarming turn. Venugopal changed tack and argued for “guidelines” to regulate commentary (especially by lawyers) on sub-judice (i.e., pending) cases. The Supreme Court (SC) bench agreed to adjudicate the case on those terms, and fixed a date in March to hear it. There are many reasons why the SC should refrain from issuing broad, multi-purpose “guidelines”, of the kind that the AttorneyGeneral has in mind. The first is that it would be a serious attack on the constitutional value of the freedom of speech and expression. One of the core principles of Indian democracy is the principle of open justice: At all times, the work of courts in dispensing justice must be open to public scrutiny. This scrutiny could be outspoken and harsh, at times. It may irritate judges who feel that they are being subjected to unjust and unfair opprobrium. However, officers of State who wield power of the kind that judges do, are expected to have shoulders broad enough to shrug off fierce, even vituperative, criticism.

This is especially true of the Indian Supreme Court that, over the years, has transformed itself from a judicial tribunal that deals only with questions of law, to a forum that intervenes on a wide range of issues involving administration and governance. The SC is often called “the most powerful Court in the world”. It is in the nature of things that the power that a body wields will be directly proportionate to the force of the criticism that it receives.

There is, of course, a narrow exception to this rule. Judges, by virtue of their office, can only speak through their judgments, and are not in a position to publicly respond to personal attacks or allegations. Consequently, attributing extraneous motivations to a judge, or insinuating that a judge has been bought out or is corrupt, are forms of expression that can be regulated and curtailed. This is exactly what the existing contempt of court law does: it requires individuals to refrain from interfering with the administration of justice, a requirement that has been interpreted to mean that while judgments and judges can be criticised (including in harsh and intemperate terms), extraneous motives cannot be attributed to them.

It is clear, therefore, that existing contempt of court law deals with the possible abuse of the right to free speech and to criticise the courts. Any “guidelines” that step beyond this area will amount to an immediate violation of the freedom of speech and expression.

There is a further, more basic reason, why the court should refrain from stepping into this arena. And that is that the Indian Constitution does not authorise the judiciary to directly censor speech. Article 19(2) of the Constitution only allows for speech to be restricted through a “law” made by the “State.” It has long been settled in Indian constitutionalism that the word “law” under this Article does not include judgemade law or judicial orders. The reason for this is clear: The framers of the Constitution wanted a double layer of safeguards when it came to free speech — parliamentary scrutiny (first) and judicial review (second). They did not see fit to vest direct censorial powers in the hands of judges.

For these reasons, whatever the temptations, the SC should desist from acceding to the Attorney-General’s request, and passing “guidelines” curtailing commentary on sub-judice cases.

Legal dispute raises question over the right to facts

Source: The Times of India dated 24.1.2014

Cricket scores: Legal dispute raises question over the right to facts

TIMES NEWS NETWORK 

New Delhi: TV broadcaster Multi-Screen-Media (MSM), which operates Sony, sued Online companies Cricinfo and Cricbuzz and radio broadcaster Radio One for disseminating realtime scores and updates for the ongoing India-New Zealand cricket series, without having obtained a licence from Sony. This follows a similar suit by Star against Cricbuzz, OnMobile, and Idea Cellular, for providing SMS updates of matches for which BCCI had given broadcast rights to Star. 
    The cases have sparked an emerging question on whether any company can have ownership over facts (which cannot be copyrighted) and what implications it may have on rights over free speech and expression. 
    Sony argued that it has paid a significant fee to the New Zealand Cricket Board for the exclusive media rights, and that this includes ‘data rights’, amongst the broadcast TV and digital rights. Sony was granted an ex-parte adinterim order by the Delhi High Court on Tuesday, restraining the three companies from disseminating any realtime scores, live/contemporaneous audio commentary or even “exploiting or authorising the exploitation of cricket match-related material/information/ details including but not limited to current cricket score, ball-by-ball updates, score cards, score updates, alerts etc, contemporaneous with match situations/events”. 
    Meanwhile, the suit initiated by Star last year is slated to be heard by the Supreme Court in March. The most recent ruling in August, by a division bench of the Delhi High Court, set aside an earlier order and stated that neither Star nor BCCI can license rights that have not been established to exist. More importantly, the court cited the constitutional implications upon the right to freedom of speech, stating that the earlier order, which gave Star limited rights “would tend to insidiously, and in a creeping manner, denude the fundamental right to free speech and dissemination of topical information to members of the public.” 
    Cricbuzz, OnMobile and Idea Cellular had argued that Star’s claim was barred by Section 16 of the Copyright Act, 1957, which precluded it from claiming copyright or other similar un-enumerated rights, and that they had published match information after it entered the public domain, that it was purely factual and amounted to news. They claimed that their actions did not amount to free-riding on the efforts of Star, as they did not copy the content of the broadcast or provide access to audio or visual footage of the broadcast. 
    These three companies further argued that dissemination of information through SMS was in exercise of their free speech right under Article 19(1)(a) of the Constitution. Their right also extended to freedom to carry on business in dissemination of information to the public; both these rights could be restricted through reasonable restrictions enacted through law, which fell under Article 19(2) and not by common law. 
    These arguments succeeding in overturning the previous order of the Delhi High Court in March 2013, which had prohibited the three companies from disseminating contemporaneous ball-by-ball or minute-by-minute score updates/match alerts by SMS/MVAS for a premium without a licence from Star — but allowed them after a time lag of 15 minutes. However, “newsworthy information” (that is, who won the toss, scored a century, broke a record, etc.) 
was allowed to be disseminated immediately and that no licence was required if the information was disseminated gratuitously. 
    This gave Star limited rights over cricket scores and introduced the “Hot News” concept to India, wherein a company was given exclusive rights to report information via mobile for a certain period of time, while the news was still “hot”. 
    BCCI is indifferent towards live scoreboard updates, which come under purview of ‘data rights’. On the legal dispute over the media rights, BCCI told TOI that it was a matter between the broadcaster or title rights holder and the website or mobile companies which are selling live updates. “We have nothing to do with it. This issue is between New Zealand cricket board and the MSM and BCCI has nothing to do with it,” a top BCCI official said on Thursday. 
    Globally, however, the precedent has been in favour of the digital companies. In the US, a 1996 ruling between the NBA and Motorola /STATS stated that the broadcasts of NBA basketball games, not the games themselves, are entitled to copyright protection, and therefore, disseminating facts did not infringe upon broadcast rights. 
    Moreover, analysts point out that at the heart of the matter is the pragmatic question of enforceability of such rights in a digital age where realtime information is increasingly and easily available. If real-time scores are ruled to be proprietary content, it would imply that consumers who post these on Facebook or Twitter, or send messages via SMS or Whatsapp, are infringing upon rights, by sharing realtime score updates with friends! This is also impossible to enforce practically, and may end up placing sites such as Cricinfo at a disadvantage, relative to smaller sites or blogs which are less likely to be subject to legal action. It would also be near-impossible to enforce on websites based outside of India, being available globally. 
    The implication of a ruling in favour of Star would also set a precedent for news businesses outside of sports, implying that the right to report facts (which cannot be copyrighted) around any event would reside with the event holder, and news organizations would require licences from event organizers to report on them. It could also lead to a situation where real-time cricket scores would not be available on any digital medium, if the rights holder chooses to not disseminate the scores. If the court rules in favour of the digital companies, it would allow them to continue to disseminate real-time match information, as they currently do. 
    All in all, however, the nub of the issue is whether any proprietory ownership is possible over information and facts in the first place. As the Delhi High Court order in August pointed out, “neither Star nor BCCI can be permitted to say that mentioning “mobile” rights and auctioning them, would i p s o f a c t olegitimize the parcelling away of right to disseminate information, w i t h o u t f i r s t e s - t a b l i s h i n g t h a t t h e r i g h t o r e x c l u s i v e d o m a i n o v e r s u c h r i g h t s e x i s t e d i n t h e f i r s t i n s t a n c e . ” 
    As pointed out by analysts that that time, this essentially means that before you l i c e n s e rights, you should first establish that they e x i s t.

Asis Nandy case

The Compelling Compromise - A comment on the SC interim order on the Asis Nandy case by Peter Desouza (The Indian Express dated 11.2.2013, pg. no. 11)

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http://epaper.indianexpress.com/c/770706

Can Law Penalize an Idea?

Source: Times of India

Supreme Court gives relief and an earful to Ashis Nandy

By Dhananjay Mahapatra, TNN | Feb 2, 2013

The Supreme Court on Friday disapproved of social scientist Ashish Nandy's controversial remarks on corruption among backward sections at the Jaipur Literature Festival but gave him protection from arrest following a spate of FIRs in several states.

Though the court entertained Nandy's petition and issued notices to the Union home ministry and states where police have registered FIRs — Rajasthan, Maharashtra, Bihar, Uttar Pradesh and Chhattisgarh — it was critical of Nandy's remarks and told him to desist from such statements in future.

'Can't go on making such statements'

A bench of Chief Justice Altamas Kabir and Justices AR Dave and Vikramjit Sen asked senior advocate Aman Lekhi, "Why does he make a statement like this? You must tell your client that he cannot continue making statements like this."

Immediate clarification that the social scientist had no intention of hurting sentiments made the bench caution him, "Whatever his intentions be, he cannot go on making such statements."

Even before Lekhi could start arguing on behalf of Nandy, an advocate claiming to be a member of the dalit community stood up to oppose any protection to Nandy from arrest because of his "irresponsible and defamatory" statement. The bench asked him to file an application so that the court could deal with it.

Lekhi said since Nandy's remarks had no intention to cause hurt to scheduled castes, scheduled tribes or other backward classes (OBCs), no offence was made out under the SC, ST (Prevention of Atrocities) Act and sought quashing of the FIRs registered in many states.

"Can the law penalize an idea," Lekhi began with a question. But it received a short and crisp "yes" from the court. The counsel then resorted to right to freedom of speech and expression guaranteed under Article 19 of Constitution, but it did not help Nandy's cause.

Finding the going tough, Lekhi changed track and said Nandy had tendered an apology immediately after he realized on January 26 itself that his statement was being reported out of context in the media.

The CJI, speaking on behalf of the bench, made the counsel understand the gravity of the situation created by Nandy. "Even before you opened the argument, a member of the scheduled caste community stood up to say he opposes your plea. This shows the extent to which they are hurt," Justice Kabir said.

"Every citizen has right to free speech but not at the cost of others. We are not at all happy with the way the statement was made. Why do you make such a statement in the first place," the bench said.

Lekhi narrated how Nandy had been a supporter of the dalit cause and explained that the corruption comment in Jaipur was an idea to explain it. "He meant to say when others indulge in corruption, it is not taken note of but when dalits do it, it gets noticed," Lekhi said and reiterated that Nandy never meant to cause hurt.

The bench said, "Why do you say something when you don't intend to convey it? It affects people all over."

Lekhi said the media reported Nandy's comments out of context and then politicians jumped in to create hysteria. The CJI asked, "Who has created it? Who is the author of the statement?"

The bench asked the respondents to file their responses within four weeks and ordered that in the meantime, Nandy would not be arrested in connection with any of the FIRs lodged following his statement at the Jaipur Literature Festival on January 26.