Law

Backstory: Landmark Verdicts, Landmark Journalism?

A fortnightly column from The Wire’s public editor.

The pronouncements of the country’s highest court on issues of vital public interest become what could be termed “news-as-history”, in so far as they contain both the preoccupations and anxieties of the present moment as also the norms and values that could mark the future. The intriguing question is whether verdicts like these emerge from existing public opinion or in fact go on to create public opinion. A bit of both, perhaps, but either way the media as the chief purveyor of reportage and analyses of court verdicts play a significant role in tracing the arc of jurisprudence.

Landmark judgements are exactly that, towering over the national landscape as beacons lighting the way. Over the last fortnight we have had two significant verdicts emerging from the Supreme Court: the first was the setting aside of the instant triple talaq on August 22; the second, coming on August 24, and referred to as the Justice K.S. Puttaswamy (Retd.) v. Union of India, held privacy as a fundamental right. While the second was a unanimous one delivered by nine judges, the first showcased three ideologically differing positions.

Because they followed each other so closely in the last week of Justice J.S. Kehar’s tenure as chief justice and had three judges in common – the chief justice himself, Justice S. Abdul Nazeer and Justice Rohinton Nariman – they were quickly twinned in the public imagination. Both certainly had deep political implications in this period leading up to the 2019 general election. While the first occasioned prime ministerial tweets and posters that claimed for the BJP the status of being a patron saint to Muslim women, the second was met by a long and uneasy silence from both the prime minister and his team until the Union minister of law and justice was sent in to bat and offered a spectacularly straight one, even while breezily claiming that his government was in any case always committed to privacy.

If one were to compare the coverage accorded to both verdicts, quite clearly it was the privacy judgement that received a disproportionate share of the attention. It also attracted more pre-verdict comment, lead-in texts and infographics. There could be many arguments for why this should indeed have been the case. After all, if we were to be a bit cynical, it’s clear that the privacy judgement affected all Indians and has a modernist resonance, while instant triple talaq was about an invisible minority within an increasingly disempowered minority and a practice deemed unmodern.

On balance I would say that The Wire could have done more on the instant triple talaq issue verdict, including the obvious steps of carrying video interviews with the petitioners or their legal representatives as they did for the privacy judgement where they spoke to a young lawyer closely involved the case (‘Watch: What Supreme Court Judgement on Privacy Means for Aadhaar and Surveillance’, August 25) and to civil society representatives (‘SC Verdict Might Alter India’s Privacy Landscape, But Right to Privacy Won’t Be Absolute: Experts’, August 24).

Just a simple count of the stories put out of the day of the respective verdicts would confirm this impression. While no less than 13 pieces on privacy and its implications immediately followed the announcement of the privacy verdict, the instant triple talaq verdict pronounced two days earlier had occasioned just two. Even if we were to exclude the five pieces that were the orders of individual judges, the difference in treatment was still conspicuous. It also needed a careful reader to point out a major inaccuracy in the initial reporting (‘Supreme Court’s Triple Talaq Order Welcomed By Activists, Muslim Personal Board’, August 22). In his response to the piece, reader Rantman pointed out quite correctly that “Chief Justice J.S. Khehar and Justice Abdul Nazeer did NOT back triple talaq. The dissent was based around whether the Supreme Court has a right to interfere or whether this belongs to the domain of the legislature. They refused to strike it down perpetually, but instead put a temporary injunction on it. Bad editing! Bad! Bad!”

Later reporting and a closer reading of the verdict brought a much required nuance to the coverage. ‘Triple Talaq Verdict: Wherein Lies the Much Hailed Victory?’ (August 28), for instance, after reviewing the observations of the five judges in the case, concluded that there was little there in terms of “sound jurisprudential grounds to advance women’s rights”.

Unmistakably there was an overhang over all actors in this tableau, whether it was the petitioners, the lawyers, the judges themselves or the rest of us as readers and viewers: the overhang of the majoritarian agenda of the ruling party to marginalise and vilify the Muslim community. The Wire could have done more in analysing this, but it did have a piece, ‘Indian Muslims Are Not a Homogenous Community, so Who Is the Triple Talaq Verdict For?’ (August 26), which contrasted the Congress brand of discourse, which assumed Muslims to be a homogeneous community with congruent claims to religious freedom and which consigned Muslim women to the private realm, with the Hindu sovereignty approach of the ruling party that portrayed Muslim women as symbolic of the community’s backwardness. It noted in conclusion the “complex ways in which the politics of majoritarian tolerance and communalism can coincide or splinter and yet be implicated in gender politics”.

It appears then that the familiar traps inherent in the whole project of Muslim personal law reform that had bedeviled the feminist movement in India over all these years continue to be live. Muslim women’s groups, like the Bebaak Collective – one of the petitioners in the triple talaq case – have had to literally pick their way through a minefield, fiercely distancing themselves from Hindu fundamentalists while demanding their constitutional rights and guarantees. In the piece ‘Dear Cynics, These Are the People Who Made the Victory Over Instant Triple Talaq Possible’ (August 23), a member of the Bharatiya Muslim Mahila Andolan emphatically denied being associated “with a particular political party”.

The sole way out, it seems, is to broaden the scope of personal law reform, as argued in the piece, ‘Triple Talaq Has Gone, but Too Many Questions Remain’ (Deccan Chronicle, August 27). It posited that the judges, by ruling against instant triple talaq, have made all family laws which are codified open to challenge on constitutional grounds of discrimination based on sex. There are many highly patriarchal assumptions and untenable biases in existing Hindu, Christian and Parsi personal law, although the attention has been largely on Muslim personal law as another article – ‘After Triple Talaq, a Look At the Other Discriminatory Personal Laws That Need to Go’ (August 28) – reminded us. But let us abandon all hope of this government legislating on the issue, especially after it submitted before the Delhi high court recently that criminalising marital rape would destabilise marriage.

As for the privacy verdict, did the sheer breath of the jurisprudential vistas it offered, over-ruling two earlier apex court verdicts and severely criticising a third, meet with a commensurate, multi-layered journalistic response? To an extent yes, but reporting on verdicts of this kind is a bit like digging for diamonds with a garden shovel! Five aspects of The Wire’s coverage struck me as noteworthy. First, the attempt to unpack the salient points of the judicial vision on display, including that unassailable observation on privacy’s intrinsic link to right to life and personal liberty which the judgement recognised as primordial rights upon which no civilised state can encroach (‘Privacy an Essential Aspect of Human Dignity, Says Supreme Court in Historic Ruling’, August 24).

Second, even while some euphoria over this verdict was warranted (‘A Giant Leap for Informational Privacy’, August 27), a cautionary note also needed to be struck. The analysis titled ‘It’s Hard to Understand Privacy in India’ (August 24), for example, argued that the test of this pudding will be in its eating. Will it translate into lived experience? That really is the big question. After all, as highlighted, even though the Supreme Court struck down Section 66 of the IT Act, the state now takes recourse to Section 67 of the IT Act and IPC provisions to crack down on those it deemed guilty of posting offensive content.

The third aspect where The Wire coverage deserved a shout out was its coverage on sexual rights against the backdrop of a verdict that had straightforwardly observed that “sexual orientation is an essential attribute of privacy.” This has immense bearing on the curative petition on Section 377 of the IPC due to come up before the apex court sooner or later. As Justice A.P. Shah who, along with Justice S. Muralidhar, had read down that egregious section in the 2009 Naz Foundation judgement, put it, “There is very little scope now for those wanting to support Section 377” (‘Right to Privacy Judgment Makes Section 377 Very Hard to Defend, Says Judge Who Read It Down’, August 25). Most commentary had ignored another vital facet of sexual privacy underlined in this verdict, which was caught by another piece, ‘From Aadhaar to the Closet: Impact of Supreme Court’s Privacy Judgment on Section 377 Litigation’ (August 25): privacy is not just for private spaces but public ones as well. The verdict had argued that “privacy is not surrendered merely because the individual is in a public space”, and was an “essential facet of the dignity of the individual”. In other words, harassment, sexual or otherwise, of anyone in a public space was also a violation of that person’s privacy.

The obnoxious argument of the government that the poor cannot afford the luxury of privacy was demolished by this verdict. A few days before the verdict, The Wire had carried a piece, ‘Why India’s Poor Must Have a Right to Privacy’, which almost anticipated the court’s argument on this score and had gone on to say that “the false dichotomy between privacy and welfare must be expunged”. This of course holds major implications for the Aadhaar card, made mandatory by this government. While the verdict did not involve itself with the Aadhaar matter, given that another bench was considering it, by unambiguously bringing personal data into the ambit of privacy its writ cannot but have major implications for that verdict as well.

The Wire had, over the last several months, extensively covered Aadhaar and provided a major platform for expert opinion on it. This time too it was quick to bring the issue into the frame. However, it sensibly refrained from making too many assumptions on this score. In ‘FAQ: What the Right to Privacy Judgment Means for Aadhaar and Mass Surveillance’ (August 24) all that was ventured was the suggestion that “it is possible that this judgment will be used in future legal cases to try to amend the more contentious provisions of the Aadhaar Act or influence future data protection legislation that in turn will make the Aadhaar system more secure. Only time will tell”.

The fifth aspect is what could be termed the sci-fi dimension of the verdict. The judges were wise to observe that technology change is notoriously difficult to anticipate and any interpretation of the constitution “must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features”. Two pieces put out by The Wire steered the conversation to data protection in a changing technological landscape. In ‘How the Right to Privacy Judgement Will and Won’t Impact India’s Data Protection Regime’ (August 24), the meaning of “data as the new oil” was expanded upon and the prospect of algorithms and artificial intelligence mediating the world around us considered. All this called for enabling legislation for data protection being put in place urgently and the piece recognised that the privacy verdict was an important step in this direction. The second article, ‘In India’s Right to Privacy, a Glimpse of a Right to be Forgotten’ (August 28), looked at Justice Sanjay Kishan Kaul’s delineation of the “right to be forgotten” in the privacy verdict. While commending it, the writer also pointed out that unless a comprehensive data protection law specifically instituted this right, the justice’s argument would be as good as lost.

The last word on these two ground-shifting judgements has yet to be pronounced. As they go on to shape the country’s political and social landscape in the days ahead, journalists in particular will need to guard against the very real possibility of the gains inherent in them being undermined by vested interests of various stripes.

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There seems to be a growing interest in the video material put out on this platform. Ram Swamy, who regularly watches these videos, has a request: The Wire must make a video on intolerance, arguing that when people returned their state awards, the BJP claimed that it was just drama. Today, when people are being killed on the road by cow vigilantes, it has become even more important to return to the Awards Wapsi moment.

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Probir Roy has a question. Why is it that Indian media, including The Wire, ignored the excellent story that Ellen Berry did for The New York Times as her last piece as the Indian correspondent for her paper? See: How to Get Away With Murder in Small-Town India

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Sateesh acknowledges a receipt from The Wire for a donation he made, but wonders why it came from a gmail account and not from thewire.in domain name. He writes: “To me an email from a gmail account asking for my PAN account to validate the donation I made to The Wire appears suspicious. Please use an email address with your domain name for such purposes.”

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