Katju-isms & The Rules Of Discourse

By Sanjay Pinto

Press Council Chairman Justice Katju quit twitter in five days. The experience and feedback from many quarters was probably what egged him on to recently recommend some form of regulation of the ‘Rules Of Discourse’ in the social media. That was enough to open the floodgates of  vitriol. Why do we need to follow the George Bush dictum of the Gulf War vintage: ‘You are either with us or against us.”?  If what Justice Katju has in mind is not blocking fair comment but filtering vulgar, inflammatory and defamatory content, how can anyone have a problem with that? A disturbing fact is that if you say something remotely critical of the social media, you inevitably subject yourself to scorn and abusive tweets, blogs and posts. The public resentment of the ‘system’, of politicians and of the mainstream media too  may have contributed to this ‘touch me not’ syndrome . Or as a tweet put it, this is the new ‘Janata Ki Adalat’.

It takes all kinds to make the social media. There are scores of unsung heroes on twitter. Take for instance, this group ‘@BloodAid’. It’s an initiative to bridge the gap between blood donors and patients in need. The facebook pages of Alex Paul Menon, the  abducted Sukma Collector and that of his wife Asha Alex,  have been overflowing with messages of support, prayers, sharing of numbers, pictures, links and condemnation of the act, from the minute the news broke. Thank God his wall didn’t disallow posts, which is a privacy option. Today, the fastest way to confirm news is through the social media. Earlier this month, the tremors and the tsunami scare played itself out on twitter and facebook. With mobile networks jammed, these updates  were the saving grace.

No one should be allowed to police free speech and thought. Sufficient leeway for criticism, humour, disagreement and rebuttal is essential. But hold on. Just recently, an actor while engaging in an innocuous discussion on the Shah Rukh Khan detention in the US, had a nasty reply popping up: “You want actors to be worshipped in the US the way they are in India? They are no more than prostitutes.” This isn’t banter that you can shrug off. Neither is it a wisecrack like a post I came across on facebook: “bird brains tweet the most.”! This is the difference between facebook and twitter. On the latter, strangers can usually invite themselves to someone’s party and vitiate it. You can chose to confirm those who follow you on twitter but that’s an option few exercise. I was horrified to see uncharitable comments on the religion of the abducted Collector. And in response to a clever message on Easter “You can put truth in a grave; but it won’t stay there”, there were sarcastic comments on the resurrection. Can any right thinking person hold a brief for such tweets? Invariably they emanate from those who hide behind vague profiles. You need to be at the receiving end of vilification to appreciate the need for some control of what has become a behemoth.

It’s easy to say, ‘file cases if content is offensive’. How? It’s not as if the hate comment comes with a full postal address! The service providers are sitting in a foreign land and establishing identity of an offender is a challenge.

It’s not the genuine users but mischief mongers who need to worry about reasonable restrictions. Films have a Censor Board. Television needs an uplink licence and is governed by the Cable TV Act, apart from being subject to the laws of the land and self regulatory bodies like the National Broadcasters Association. Today, when you post video links on the social media, you become a sort of broadcaster yourself. It’s an extension of citizen journalism and I welcome it. But the danger of such tools, when unregulated, falling into the wrong hands, is too serious to be ignored.

To those who are already itching to throw their hat into the regulation ring, it’s worth recalling a quote attributed to Voltaire: “I may disagree with what you say but I will defend to death your right to say it”. But there is a difference between  dissent and abuse. All the stake holders must realise that ‘be you ever so social, the law is above you.’

My Friend Abducted

By Sanjay Pinto

There was something very warm about Alex Paul Menon that gave me the feeling that we were buddies from our diaper days when he first sent me a message on Facebook. It was a simple, polite introduction accompanied by a friend request. Having given the Civil Services Exam a shot and sans the customary 'sour grapes' syndrome (!) I always look up to those who make the cut in this fiercely competitive three tier test. That this young officer, from Tirunelveli in Southern Tamil Nadu was full of idealism was more than evident in  the story ideas he shared with me, that I passed on to my Headquarters. Honestly, when I come across such talent and drive, I have no regrets for not getting those three letters after my name. Because, I know better guys earned it.

Alex and I used to ping each other for a chat now and then. And what a minuscule world we live in! His fiancee - Asha, better known as Pushpa Bhagyam, was a classmate of my sister in law Kavitha Subramaniam at the MBA programme in the Madras University. Asha had participated in one of my live debates a couple of years ago. A bright spark, like her Prince Charming! Alex jogged my memory a bit with a "now that you know us both, you must come to our wedding" invitation on Facebook. I promised to be there; but in the rough and tumble of breaking news, you often miss out on such things in life. And Murphy's Law took over.

When I got the news from the Assignment Desk on Saturday evening, it felt like a personal setback. I logged into Facebook and there were already posts on Alex's wall. In hindsight, it's not a good idea to disable wall posts. Here, thanks to this tool, family, friends & well wishers, even his school alumni group, were able to  share and collate whatever little information was trickling in. From a Free Alex Paul Menon page to personal accounts like this one from Suhasini Ayer : "I have been working with Alex; the collector of Sukma, Chhattisgarh on a land use and development plan for the district that is environmentally sensitive with the participation and consultation of the local people. His first priority is to bring health services, education and meaningful livelihood to the area", the abducted officer's Facebook page is just a small barometer of his popularity.
 

I had Alex's mobile number and his wife Asha's Chennai number stored as 'Pushpa Bhagyam'; both were understandably switched off. A post on his wall seeking contact details of his relatives in Tamil Nadu and direct messages to his wife and a couple of mutual friends like Kavitha Ramu, Nagarajan and Sundar Lakshman worked like magic. Kavitha, a Tamilnadu officer texted a number of his father in law in Chennai. The next thing I knew was that our office driver Sam seemed hellbent on proving that he is a fan of Michael Schumacher! Mylapore to Mogappair West with the 'one way' chaos in half an hour was quite something!

The scene at the Venugopalans home in Nolambur in Central Chennai was justifiably tense but in control, when cameraperson Edwin, Engineer Suresh and I reached a couple of hours after the kidnapping. A retired Chief Engineer at LIC, Venugopalan made an emotional appeal to the abductors to release his son in law. As I finished my interview, a cop friend - Tamil Nadu IG Intelligence - Amaresh Pujari, called on my mobile. On my request, I passed on the phone to Venugopalan who was suitably relieved to get a dose of  hope and confidence from the IG.

Asha is in the family way; 6 months away from her due date. And has been associated with NGOs, fully immersed in social work. She was supposed to attend the convocation at the Madras University for her MBA degree on Saturday - the day Alex was kidnapped; but had decided to skip the function as she was indisposed. Imagine  a new bride; away from home, in a Naxal infested area, just 7 months into her marriage, 3 months into her pregnancy, coming to terms with the fact that her husband has been abducted by Naxals after the gunning down of his security officers. It takes rare courage, maturity far beyond 24 years and amazing grace and dignity to conduct herself the way she has. This young lady is clearly made of sterner stuff. "I am sure he will be back soon. I miss him", she wrote a message to me on Facebook but seemed concerned about how her husband would manage without enough medicines for asthma. I've seen such courage in films like Roja. Now I'm seeing this in real life.

Alex did not join the Civil Service for the trappings of power. Not many are aware that he was first selected for the Indian Revenue Service. That would have meant city postings and what many consider a 'cushy life.' But his heart is in rural service and development. Which is why he went through that gruelling exam all over again and made it to the IAS. Allotted the Chattisgarh cadre, Alex is a hands on officer. Despite an intelligence warning, he placed duty above his personal safety; even going on a bike to remote parts of his district. When the Naxals who had surrounded the car shouted "Who is the Collector?", an unruffled Alex stepped aside and identified himself.  That's a leader. A pro-development, pro-poor officer, a simple middle class young man who made it on his own steam, a father in the making. There is zero reason for a man like him to be away from his family and the people he is meant to serve.

I'm sure Alex, like most Tamilians, is a Rajinikanth fan. To quote a dialogue of the superstar from the film 'Basha' "God will test good people but never let them down." I'm praying for my friend to be set free soon. And I'm waiting for him to ping me again.

Transparency Leads To Privacy!

By Sanjay Pinto

It may seem like an oxymoron but transparency can result in privacy! And India's real life hero - Yuvraj Singh knows that better than anyone else. It's a different matter that the Indian cricketer successfully battled cancer in a hospital abroad. Even if he had been treated in India, Yuvi may just have obviated the need for intrusive reportage. And that's thanks to his personal PR manager called twitter. All that news organisations had to do was to follow his tweets that were perfect news updates on his progress, his state of mind, his support, (including an inspiring message from his very own "real life hero" Lance Armstrong) and his will to bounce back. The 'tweet while you're treated' policy was also a great way to connect with his twelve and a half lakh followers. The sheer positive energy that flowed and came right back from well wishers and fans must have been quite therapeutic.

@ Yuvstrong12 is a classic example of how the social media, if used fairly and innovatively, can have a salutary effect on nosey-parker reporters who invite themselves into hospitals and thrust microphones before critically injured patients with that gem of a cliche "How do you feel?". We've seen that in the aftermath of bomb blasts, earthquakes, the tsunami, rail accidents, air crashes and stampedes. Or for that matter the paparazzi outside maternity hospitals whenever a celebrity delivers a baby.  Before my readers get thoughts of 'look who is talking', may I plead 'Not Guilty'? Broad brushing is always a temptation. 

Even what may be a routine medical check up or post operative care, turns into a media event. Amitabh Bachchan, better known for his candid, rather than candied tweets, got a taste of the hyperactive media baying for his news yet again, prompting this tweet: "Dearest tv media and vans outside my home, please do not stress and work so hard. Its nothing, just another visit to my doctor!!". Perhaps the best way to disperse journalists is to tweet a little information!  At one level, it’s the champagne bottle theory playing out in full fizz – the more you suppress information, the greater is the urge to unravel it. The  strategy will hopefully sound the deathknell of a brand of meaningless, insensitive journalism. And don’t be surprised if  celebrity management metamorphoses into social media management.

Like twitter, facebook also allows you to display transparency and have your privacy too. The art of diplomacy, a wag once quipped is to “remember a woman’s birthday, never her age!” You don’t need to publicise your age here, unless you choose to flaunt your grey eminence. Privacy settings include the option to disable wall posts from friends or the public. There is a marked preference for just direct messages. The birthday tracker remains a favourite tool. Reasonably popular users could get upto five hundred wishes on their birthdays. When people, prompted by facebook, of course, take the trouble to post a wish, a real turn off would be a round robin style, generic 'Thank You, All' reply; almost reflecting an overnight celebrity status! For those who construe individual replies as a form of birthday bumps, Facebook could consider adding a 'Thank You' icon next to the 'Like' button.  So if you have wishes galore, you can do the ‘Acknowledgement Due’ honours at the speed of, well, five hundred expressions of gratitude in a little over eight minutes! Please redo the math. That has always been my nemesis!

Rape Of Reason

By Sanjay Pinto

The shockingly insensitive ‘they asked for it’ stance of Delhi cops towards rape victims, exposed by an NDTV-Tehelka sting operation is an SOS to the khakhi top brass in the country. The thinking betrays a deep rooted prejudice, perhaps at one level even connivance with the perpetrators, an anti victim, male chauvinistic, sexist, mindset and either cynicism or  impotence of those black  sheep meant to protect; and when that fails, to investigate and prosecute. I’m using the term black sheep because not all cops are bad. Some take an extreme position and mete out their own ‘justice’ to criminals accused of rape. No right thinking person will hold a brief for this either.

For starters, how many women would feel safe in an average police station in the country? The record of custodial rapes is another story in itself. But to suggest that the victim “deserved” to be raped is the most perverse form of escapism. No citizen deserves a crime. Every citizen deserves safety and protection. It’s only criminals who deserve punishment. What’s frightening is that almost all the cops exposed are Inspectors, who are invariably the investigating officers of crime. The police station constitutes the cutting edge of the department. So when these key players in the criminal justice system make excuses and indulge in a shameless blame game, wouldn’t it embolden criminals?  Don’t we also run the risk of botched up investigation? An investigation into a rape calls for forensic expertise –  meticulous collection of evidence ranging from blood, finger nails and skin to semen samples and strands of hair. It also calls for circumstantial evidence to puncture the trademark defence – alibi. If an officer carries the baggage of preconceived notions about the victim, wouldn’t that  itself be a perfect setting for investigative oversight and ultimately,  an acquittal?

It’s not the job of an officer to dole out character certificates or sit in judgment over the version of an alleged victim. That’s for the court to adjudicate. But if a cop rustles up weak evidence, the public prosecutor would be helpless in preventing a chargesheet from falling by the wayside, from witnesses turning hostile and sometimes, even the victim giving up. Take a look at where the law stands on the issue of ‘character’. Under Section 54 of the Evidence Act, the bad character of an accused person is not relevant. Much more irrelevant in the case of a victim! Even a commercial sex worker can be raped. So what are those talking through berets?  And look at what the Supreme Court had to say about the testimony of  rape victims. In State Of Punjab Vs Gurmit Singh, the apex court made it clear that the victim’s evidence alone is sufficient to convict. The rationale was telling: “In a case of rape, no self respecting woman would come forward in a court to make a humiliating statement against her honour.” Criminal trial can be quite traumatic for  a rape victim.

What I find most ridiculous is the argument on dressing as a trigger for a crime of passion. Lust, like beauty, also lies in the eye of the beholder. Actor-politician Khushbu made an interesting point. “There are scores of women who are harassed although they are clad in traditional attire.” Public prosecutors  will tell you  it’s not always lust that drives a person to rape. Sift through the clutter of Section 375 Indian Penal Code cases and you will come across other factors like a perverse desire to show authority or to demonstrate superiority over hapless victims. What else would explain the gang rapes of tribal women in Tamilnadu’s Vachhathi village two decades ago? A conviction of 169 officers came just last year!  Just recently, an 82 year old woman was allegedly raped by a 32 year old man. It took a public outcry and medical reports for the  police to take the word of relatives seriously and arrest the man accused of committing the crime. The outrageous ‘dress logic’ also came to the fore a few years ago when a Vice Chancellor of a University in Chennai banned jeans and T Shirts on the campus because “professors may get distracted.”  

The reference to loose morals is equally frivolous. Whose morals, please? By whose standards? Here’s another grossly misrepresented provision of law, that  is reflected in movies. An unmarried couple found together in a hotel room. A knock at the door. And the next scene is of the duo being driven away in a police jeep! The Suppression Of Immoral Traffic Act does not apply to consenting adults. It only makes living out of earning through prostitution, involving soliciting  in a public place, an offence. The Supreme Court has even recognised live in relationships. Consensual sex, as long as the girl is above sixteen, is not the business of a man in khakhi.  The police-public ratio is terribly skewed in our country. The crime graph is rising. And the curriculum in our police training academies needs an overhaul and a definite inclusion of gender sensitisation modules. The cops have their task cut out. Georges Clemenceau once quipped: “war is too serious a matter to be left to military men.” Perhaps sermonising is too complicated a task for the police! 

Riding Two Horses

By Sanjay Pinto

What’s  the biggest draw the legal profession? At the end of the day, it's  not money. It’s  ‘independence’.  Lawyers have no masters or employers and are under no one; only accountable to God . Or ‘My Lord’, if you please! But the biggest obstacle for fresh law graduates who have no grandfather or father or god father in the profession is the reality  - of a trickle of vitamin M.  The potential for that trickle to become a torrent is what keeps many going. But after five or six years of college education if you have to put your heart and soul into your work and still not make enough to keep the two together, what’s the way out? Faced with this quandary – of  being ‘legally broke’ or marginally better with a flea bite of a cheque as ‘stipend’, several young, bright law graduates hang up their gowns and  opt for employment.  Often, it’s the monetary factor that  weans away budding lawyers.

The Bar Council of India and of the various States are meant to regulate the legal profession, set and maintain standards and to some extent, spare a thought for  the welfare of advocates on their rolls. There are extremes in this arena – lawyers who reportedly command a crore per appearance and some who find it difficult to make ends meet.  And there is and can be no fixed gestation period. But can there at least be a subsistence stipend prescribed for juniors? Or how about a new genre of ‘gestation period’ lumpsum  insurance that law colleges can collect from day one?!

It’s against this backdrop that I prefer to analyse the Bar Council’s restriction on employment, reflected in Rules 47 to 52 in Chapter VII.

Under Rule 49, “an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment.”

The rationale was spell out by the Supreme Court in Dr.Haniraj L.Chulani Vs Bar Council Of Maharashtra & Goa, It observed that “the legal profession requires full time attention and would not countenance an Advocate riding two horses or more at a time”. 

With no disrespect meant to any individual or body, I do want to know why an advocate should not be allowed to have a second income, at least for the first five years after enrolment when the regular income would usually be negligible?  This is not to suggest that an Advocate can neglect his duty to the client. "Upholding the interest of clients by all fair and honourable means" does not necessarily have to do with how many irons in the fire an Advocate has. An Advocate who has a steady flow of another legitimate income is less likely to fleece a client! For an Advocate who does not don any other hat, what happens when several of his or her cases come up in court at the same time? Client servicing can be of the highest order with effective time management and delegation.  Law students are invariably in the forefront of many an agitation but why can’t they take up their own cause, their own  Right To Livelihood (and I’m not talking about the Govt’s  32 rupee a day poverty yardstick, by the way!) flowing from the Right To Live under Article 21 of the Constitution, that includes the right to a living wage?  If not two horses, how about a horse and a pony?! Doesn’t this restriction fly in the face of Art 19 (1) (g) that guarantees citizens freedom to practice any profession or trade?

The ‘two horses’ argument  does not apply to Advocates who are appointed by the Govt as law officers, even though they draw salaries. What’s more, they are allowed to retain their private practice. Members of Parliament who draw salaries can also ride two horses. Extending the ‘undivided attention’  logic to the case of MPs as advocates, shouldn’t the people they represent also be entitled to undivided attention? Unless, ‘we the people’ are viewed as donkeys! How can we have two classes of citizens or professions – one that must suspend practice within ninety days of taking up employment and the other that can go on till thy kingdom come? (Because a lawyer need not retire!) Is this not discriminatory?

There are small concessions for the ‘other class’ in the form of ‘part time employment’ but with a rider. In the opinion of the Bar Council, that job should not be in conflict with the dignity of the profession or affect one’s functioning as an advocate. (Incidentally, a legal commentator once wondered if strikes are not in conflict with the dignity of the profession!) At a practical level, if an advocate has juniors or colleagues in a firm to handle clients and their cases, how is that a problem?

However, the biggest consolation is in the form of Rule 51. “An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal.” As far as the teaching assignment in a recognised University is concerned, there is a reasonable three hour a day ceiling. 

What if an advocate takes up Consultancy? Quite like the Corporate retainer arrangements many lawyers and firms have. Several senior advocates have clarified that such a scenario does not warrant voluntary suspension of practice. Here the key provision is ‘employment’. What is relevant is the existence of a master-servant relationship. The most telling indication is the form of remuneration. If a Consultant is not on the rolls of a company or organisation,  does not figure in the attendance register,  does not get a ‘salary’; but a mere retainer fee based on invoices raised, is not entitled to provident fund and other benefits, raises service tax, which employees do not remit, the test of ‘employment’ is negative.

The Bar Councils should go by the spirit of the rule and a sympathetic understanding of the ground reality – that legal practice is fraught with a long struggle. In those formative years, why grudge the few bucks an advocate can earn through an alternative source in order to survive in the profession? The highest respect you can show to a profession is to join it! So let  Resul Pookutty, who fulfilled his father's dream by getting enrolled as an advocate, score his melodies in tinsel town and be allowed to have his legal music too!

Intolerance: A National Pastime?

By Sanjay Pinto

What an irony. A country that is governed by the Rule Of Law with natural justice as its fundamental edifice, is plagued by the syndrome of intolerance ever so often. Prejudging content, often without even viewing or reading it, has become a national pastime.  Whether it is a movie or a book or an innocuous statement, the devil truly lies out of the context! And this is a dangerous trend because it makes a mockery of the most precious fundamental right of free speech under Article 19 (1) (a) of the Constitution. Fundamental Rights are not merely granted but guaranteed to citizens. Yet, not just fringe groups but even State Governments sometimes tend to play to the gallery by banning books or films.

After the Salman Rushdie saga in Jaipur, Peter Heehs is the latest author to come under fire for a biography of Sri Surobindo. Furious devotees at the Aurobindo Ashram in the otherwise quiet, sleepy union territory of Puducherry want the book banned and the American historian, who has been reportedly working in the former French Colony for over four decades to digitize the archives of the Indian nationalist and spiritual leader, deported. 

What they find offensive are portions attributing  a communal slant to Sri Aurobindo’s leadership during the freedom struggle, the suggestion that Sri Aurobindo’s spiritualism stemmed from  inherited psychological problems and the hint of  romantic overtones in Sri Aurobindo’s relationship with his spiritual collaborator Mira Alfassa, revered by followers as ‘The Mother. An unfazed Heehs concedes that Sri Aurobindo was a genius and a spiritualist of great standing. What I find odd is that instead of challenging the author on facts and even interpretation, his opponents are merely harping on some rule that inmates of the ashram have no right to write about the guru. Why are we so averse to a healthy debate? Why are we impervious to criticism or mere academic posturing? Why are we intolerant of ‘the other view’?

Orissa, which also has a sizeable chunk of followers of Sri Aurobindo has banned the book.

It is no one’s contention that freedom of expression is an absolute right. If Heehs has defamed anyone; or violated any law, let the law takes its course. There is enough scope in the Indian Penal Code from Section 500 to Section 292 and a slew of other provisions to haul up a person. Let the courts decide if what is said or written, falls under a ‘reasonable restriction’ or not. The rules of discourse cannot be framed on the street.

And passports and visas are separate issues. It’s the call of the authorities; the Home Ministry and the External Affairs Ministry. There are rules governing their extension or rejection, which are completely extraneous to what one writes in a book! The best way to disagree with content is to either ignore by boycotting the work, which will hurt the publisher or come up with a rebuttal.

It’s not just books. Over the last decade and a half, at least 11 films have faced bans in the country; Arakashan being one of the latest in the long line. As a journalist with a legal background, I am truly surprised. A ban of a film, flies in the face of a Supreme Court judgment that holds the field even today. Way back in 1989, the Apex Court ruled in a  case revolving around a Tamil film - ‘Ore Oru Gramathile’, that State governments have no locus standi to ban films that are certified under the Cinematograph  Act of 1952 and The Rules of 1983. The court’s observation was brilliant: “ in a democracy, it is not necessary for everyone to sing the same song.”  Citing a law and order problem is no valid legal reason but only an excuse. State governments know how to muzzle dissent when it comes to their own interests but strangely adopt a weak kneed stance when it suits them! Why do they want to don the role of a parallel Censor Board? 

Remember what happened in the Khushbu case? For simple comments on pre marital sex, she was hounded and greeted with slippers and broomsticks for “insulting” Tamil culture. She could have been made a brand ambassador in the fight against HIV! And many of the protestors had no clue why they were up in arms!

India is not a banana republic. If we can give a terrorist like Kasab a fair trial, surely, authors and filmmakers deserve their space. If they go overboard, let them face the legal music. But let’s not allow anyone to jump out of the four corners of the law.