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Backstory: The IT Rules Put ‘Democratic’ India in the League of Dictatorial Regimes

A fortnightly column from The Wire's ombudsperson.

As journalists appeared before the Loni Border Police Station (Uttar Pradesh’s Ghaziabad district) to make statements over whether or not they were guilty of a communally motivated crime by reporting/tweeting on that ugly assault on a 72-year-old Muslim, two aspects jumped out of the page for me.

First, the Ghaziabad Police themselves do not seem to have made any credible effort to establish whether this was a hate crime or not. As far as I know, we only have the statements of the miscreants that deny the charge. Two, and more important, the promises Union ministers Ravi Shankar Prasad and Prakash Javadekar made while introducing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in February this year – that the government welcomes criticism and dissent, and that the IT Rules are a “soft touch oversight mechanism” – stand shredded.

Imagine for a moment what life for journalists working in the online space could be like if even a minuscule proportion of the over 500 million Indians online had a “grievance” against any news establishment/journalist and a sympathetic police station willing to file the FIR. The term “grievance” needs clarification. Nowhere in the new Rules is there a definition of it. It recalls Scrooge’s words while refusing to recognise the ghost of his old partner Marley in Charles Dickens’ A Christmas Carol: “You may be…a blot of mustard, a crumb of cheese, a fragment of an underdone potato…” In other words, a “grievance” could be provoked equally by a bout of indigestion as indeed by a serious desire to bring down a platform that is ideologically opposed to one’s own world view.

As ombudsperson of The Wire, I have received innumerable mails expressing anger at its framing of events and individuals, without any requisite understanding of how intrinsic the adoption of editorial stances is to independent journalism. Discounting, undermining or demolishing this right would make for a homogenous, monotonal media voice dictated by the state and market. This, however, is exactly what Prasad and Javadekar wish to achieve behind the altruistic veil of “empowering ordinary users” through a “forum for resolution of their grievances in a time bound manner against the abuse and misuse of social media…” Their intention is ultimately to create a Kafkaesque criminal justice maze from which digital media practitioners may never emerge with enough stamina, physically and intellectually, to follow their actual calling – creating journalism that is of value for a democratic society.

The actions of the Ghaziabad Police have provided us with a trailer of the possible consequences. They have invoked various sections of IPC (including provocation for rioting, promoting enmity, outraging religious feelings), together with the IT Rules, to net a variety of individuals seen as inimical to government interests. Also, in the best traditions of Uttar Pradesh, all those who figure in the FIR happen to have Muslim names.

Many countries under authoritarian regimes have gone down this road and strikingly, like India, have used the COVID-19 pandemic as a cover to do so. Last July, Erdogan’s Turkey enacted a “social media law” – ‘Amendment on the Law on the Regulation of Publications on The Internet and Suppression of Crimes Committed By Means of Such Publications’ – which made mandatory the appointment of a local representative for addressing complaints and had provision for “content removal”. The only difference is that this was to be done through the agency of the courts. India’s IT Rules, in contrast, envisage an Inter-Departmental Committee set up under the aegis of the Ministry of Information and Broadcasting, which will have the final powers of blocking/taking down content.

Here, India seems to have taken a leaf out of the Uganda book. Last September, before a crucial national election that took place in early 2021, the Ugandan government of Yoweri Museveni empowered its centralised body that controls media functioning in the country to bring online data and misinformation under its remit. Incidentally the authoritarian Museveni went on to win a sixth term in a severely disputed election early this year.

In March 2020, the government of Hungary’s Viktor Orbán awarded itself new emergency powers that criminalised “spreading of misinformation”; while Poland’s right-wing populist leader Andrzej Duda narrowly won a second term last year and went on to promulgate in January 2021 a new law on “the protection of freedoms of social media users”. It was designed of course to achieve the contrary. Under it a body – with the Orwellian name, ‘Free Speech Council’ – was empowered to take down a spectrum of “unlawful content” ranging from disinformation to public indecency. This council, although not a ministerial construct as is the case in India, comprised members who were more or less guaranteed to tow the government line.

Note then how “democratic” India, by introducing the new IT Rules without even parliamentary discussion, finds itself in the company of a rag-tag group of dictatorial governments. It is now for the judiciary to turn the mirror on to this gigantic strike on our freedom of expression, as cases against these Rules pile up in courts across the country.

Over the last few days, there has been some hope of change, as several UAPA-imposed manacles have melted away under the heat of judicial scrutiny. The searing story of Bashir Ahmed Baba, the “dreaded Pepsi bomber” who finally turned out to be only a helpless Srinagar resident caught in the net of a state-created narrative, and spent 12 years of his life behind bars as a result, is captured in his own words: “I never lost faith. I was innocent and I knew one day I will be released but didn’t know it would take this much time. Yet I don’t have a lot of regrets. This was a test from Allah” (The Wire, June 30). Meanwhile newly elected Assam MLA, Akhil Gogoi walked free on July 2 and remarked, “I was branded as a Maoist but now the court has shown that NIA was used to stifle anti-CAA movement. This is a victory for the Indian judiciary” (The Wire, July 2).

Finally, there is that amazing judgment of a Delhi court which allowed three innocent students, Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, charged with terrorist crimes, to sing songs of freedom outside the gates of Tihar Jail – an image that will remain long in popular memory. It needed clear-eyed judges to call out the Delhi Police’s elaborate conspiracy theories on the Delhi riots case: “We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation and we are of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us otherwise” (‘A New Optics of Freedom: What Asif, Natasha and Devangana Mean to India’, June 22).

The courts should similarly call out these IT Rules which, as the letter from UN Special Rapporteurs notes “do not meet the requirements of international law and standards related to the rights to privacy and freedom of expression, as protected by the International Covenant on Civil and Political Rights, which India acceded to in 1979” (‘IT Rules Flout Intl Human Rights Norms, Says UN Experts; ‘Misplaced Concern,’ Says India’, June 20).

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Re-emergence of Emergency

The “what if” questions of history never really go away. One, in particular, is whether we would have had the de facto emergency that we are presently living through, if the de jure Emergency of Indira Gandhi had never happened.

Commentators have iterated that Indira Gandhi’s Emergency should not be read as a parenthesis, a 22-month-long anomaly after which India returned to what it was before June 25, 1975. The fact is that it constituted a structural transformation of the country’s politics, the scope and depth of which we have still not fully fathomed, although new moves by the Modi government like bringing in the IT Rules, come as a reminder that we in the media need to keep going back to what exactly transpired during that period. As the piece, ‘How ‘Grievance Redressal’ Under the New IT Rules Amounts to Unlawful Harassment of Media’ (March 29), reminds us, “both dispensations sought to financially attack and strangle independent media houses.”

For journalists that nasty, brutish brush with the dictatorship of 1975 could have had one of two outcomes: either it could have schooled us to defend even more rigorously the idea of freedom of expression, or bend us in the opposite direction of kowtowing to power. For a brief while, it seemed as if the first would prevail. B.G. Verghese, writing an introduction to his book, Big Story – a collection of investigations in the post-Emergency years, even observed that “if India won independence in 1947, it won freedom in 1977.”

But that hope was quickly belied as the 1980s gave way to 1990s and the age of neoliberalism dawned. A review article of the Christophe Jaffrelot and Pratinav Anil book on the Indira Gandhi emergency that came out in The Wire (‘Review: A Comprehensive Look Back at the Emergency Which Holds Important Lessons for Today’, June 25), asks: “What came out of those 19 months? Large sections of media, the corporate sector, the intelligentsia were shown as ready to genuflect towards the powers that be. The judiciary and the bureaucracy were flexible, even if there were stray voices of dissent. There were brave voices all over the country, but they were crushed. It may sound somewhat familiar to us today.”

Most important was the manner in which the first emergency laid the ideological foundation of the second, with the RSS emerging as an acceptable force in Indian politics without having to compromise on its ideology.

A bite off the Apple Daily

News of Hong Kong residents rushing to acquire the final edition of a tabloid that had been around in the island for 26 years filled one with despair. Apple Daily may not have been everybody’s idea of a proper newspaper, but it had pursued a fiercely independent editorial line, defying China’s attempts to smother it; boycotts from advertisers; the arrests of its founder, Jimmy Lai, its editor-in-chief and chief executive (‘Hong Kong Police Arrest Former Apple Daily Journalist at Airport’, June 28). There have even been physical threats to its journalists and its premises were fire-bombed. But what really did it in was not any of this, but the draconian National Security Law introduced exactly a year ago, which criminalised dissent and entailed long jail terms – over a 100 have been jailed under this new law in Hong Kong. Any similarities this may have with our own National Security Act is merely coincidental. Or may be not. Repressive governments the world over have shown a rare penchant for borrowing from each other as we have just noted when it came to our IT Rules.

Predators in Sri Lanka’s newsrooms

If Aisha Nazim was not on a study break abroad, the recent focus on sexual harassment in Sri Lankan newsrooms may have never figured prominently in the public space. Her tweets on various instances of egregious, sexually overt behaviour of male bosses emboldened many women media professionals to share their experiences, and set off calls for redress not just among media establishments but in government circles as well. In an interview with The Hindu’s Sri Lanka correspondent Meera Srinivasan, Nazim explained why she felt compelled to go public: “Many of these perpetrators are still out there, in prominent positions, and can often be seen bullying young women online.” She hopes that this “outing” of one of the worst kept secrets of the newsroom will prod media houses to “put policies and systems in place, so that such incidents do not occur in future.”

Speaking out against people who, given their positions of power, can potentially destroy your career, is of course the crucial first step. It is here Indian case law can provide some leads. In Mobashar Jawed Akbar vs  Priya Ramani, 2021, a Delhi court, for instance, had ruled that a “woman cannot be punished for raising voice against the sex­ abuse on the pretext of criminal complaint of defamation as the right of reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in Indian Constitution under article 21 and right of equality before law and equal protection of law as guaranteed under article 14 of the Constitution. The woman has a right to put her grievance at any platform of her choice and even after decades.”

Readers write in…

A resolution on Lakshadweep

Indian Association Of Lawyers (IAL), New Delhi, passed the following resolution after deliberating on the recent developments in Lakshadweep:

The Indian Association of Lawyers (IAL) expresses its serious concern on the recent retrograde political and administrative actions initiated by the Administrator and other Authorities in the Union Territory of Lakshadweep, in the guise of bringing economic progress and betterment of local citizens. These recent measures have instilled fear in the local island population about their future. The IAL notes that the proposed ‘Lakshadweep Development Authority Regulations, 2021, “Prevention of Anti-Social Activities, 2121’, and ‘Animal Preservation Act, 2021’ reflect the nefarious purposes of the Administrator to disturb the peace and tranquility of the population residing in the island of 32 square kilometres and eking out their livelihood since decades.

The people of Lakshadweep have expressed their indignation and have been agitating against the proposed anti-environmental and anti-citizens’ Draft Regulations. The IAL takes serious note of the ill-motivated moves of the Administration of Lakshadweep to shift the jurisdiction of High Court of Karnataka from the High Court of Kerala and also condemns the Administration for slapping sedition cases against those voicing their dissent, as in the case of Ms. Aisha Sultana.

In the light of the above stated undesirable and unwarranted developments in the Island, IAL calls up on the Union Government: 1) to withdraw the proposed Lakshadweep Development Authority Regulation,2021, Prevention of Anti-Social Activities Regulation, 2021 and the Animal Preservation Act,2021; 2) to restore normalcy by recalling the Administrator from Lakshadweep; 3) to withdraw all criminal cases filed against citizens of the Island for having expressed their concern in a peaceful manner; and 4) to ensure protection of fundamental rights of the people of Lakshadweep as guaranteed by the Constitution of India.

(Murali Dhara, National General Secretary, IAL, June 28)

Spamming The Wire

Bhaskar Jyoti Barman went through The Wire’s Insta page and came up with some interesting observations: “Going through your Instagram page, I came across various hate speech and spam comments which were promoting and spreading misinformation and hate speech. The Wire needs a dedicated team to tackle such pressing issues. The IT cells are leaving no stone unturned to speed up propaganda for the upcoming elections. Instagram’s policy on this is very arbitrary and their algorithms don’t work. As a fellow Indian searching for truth, prosperity and fraternity, I would like to assist you with this issue of curbing abuse, hate speech and misinformation and make communication safer and healthier.”

A hostile public space

Aman Kumar, responding to the ‘The ‘Hindutva Ecosystem’ Has a New Anti-Muslim Narrative. This Time Street Vendors Are the Target’ (June 28), believes the report could have been more responsibly phrased. He however adds: “One thing is certain: public places have become more hostile towards Muslims in the last few years; not only to those who are visibly Muslim, but even to Muslims who are working hard to somehow earn a livelihood.”

Aadhaar not mandatory

Students seeking admission to MS University, Vadodra, write in: “As per the Supreme Court verdict the Aadhaar card is not mandatory for admission for students. In their verdict of September 2018 a five-judge bench of Chief Justice Dipak Misra, Justices A.K, Sikri, M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, ruled that although Aadhaar is constitutionally valid, it cannot be made compulsory in school admissions. School admissions are not a benefit under Section 7 of the Constitution, therefore Aadhaar cannot be a criterion to deny admissions. It also ruled that the Central Board of Secondary Education (CBSE), National Eligibility cum Entrance Test (NEET), and University Grants Commission (UGC) cannot make Aadhaar mandatory. Despite this, MS University Vadodra insists on it. Please highlight this issue.”

Don’t criticise

Jinny Weasley’s word of advice: “Please try to be independent and not indulge always in criticising all national events and personalities.”

Write to ombudsperson@thewire.in