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.

Anonymity Breeds Defamation

By Sanjay Pinto

Remember those unmanned public telephone booths that needed coins? These instruments  often ended up being misused – either by anti social elements for bomb hoax threats or by hostellers to make unlimited calls  by suspending a one rupee coin with a string and reusing it several times! Why? Because there was no one watching.  

 Anonymity breeds recklessness, a false sense of  bravado and in the absence of  a mechanism to filter content, it fuels internet hooliganism. There are enough mischief mongers online to constitute an Abusers Anonymous movement, akin to Alcoholics Anonymous!  Don’t get me wrong. I’m all for free speech and against attempts to gag dissent. I do understand why censorship is often frowned upon. And how self regulation has emerged as the new catchphrase. Yes, it’s almost impossible to screen every tweet or  status update. But when you can easily  sign up on social networking sites  without revealing your real identity and  get cracking by posing as someone else or posting ridiculously incorrect or misleading information about yourself or rude and even defamatory comments about others, how can you possibly expect a semblance of personal accountability ?

Hiding behind the cloak of anonymity, users tend to adopt a devil may care stance. The tenor of tweets put out by a section of users would make even the most liberal crusaders for free speech think twice about demanding the decriminalisation of defamation. There is intolerance for ‘the other view’,  vulgarity, vituperation and pettifogging in 140 characters. There is mob psychology at play. And there is uncontrolled, apparently unmonitored rudeness on what is meant to be a wonderful platform to “find out what’s happening about people and organisations you care about.” When  Kapil Sibal  tried to demand censorship of some sort, the move was opposed by many in the virtual world because it probably came across as a defence of politicians scared to have their dirty linen washed online.

What recourse does a user who has been defamed have? Facebook has a few options to report abusive comments or tags. Twitter too has a few complaint clauses couched in legalese under its terms of service. But if you have to sue someone, you need to first establish their real identity and source an address for communication of a legal notice or court summons. How do you do that with the social media?!  Twitter claims it is not obliged to divulge internet protocol addresses that originate from non law enforcement agencies outside the US. Even if you complain to the Cyber Crime Cell, you need a mutual legal assistance treaty or a letter rogatory or a sub-peona from a Court in California to get a user’s identification data! Why can’t specific abusive terms be blocked or at least monitored on the social media platforms ? Why can’t they consider insisting on some proof of identity like a mobile number to which a code can be sent as a step to register an account?  

Don’t we all get friend requests from strangers on facebook who have their kindergarten photo or a film star’s grab or some weird sign or a dog or monkey as their profile picture?  Click on the Info button and get a snub – “The user does not share this info with everyone.” Most recipients of such friend requests from strangers look for mutual friends and confirm ‘friendship’ if there is enough common ground. But that’s hardly a precaution as many accept friends to boost their tally! Of course, there are privacy settings but how many use them effectively? It takes a few good Samaritan users to post tips for others to see. The trick is to check if their wall posts are decent enough and if their albums contain genuine pictures that don’t look like they have been sourced from the net. 

 

Fake  profiles, especially for public figures, have become such a nuisance that genuine users are inconvenienced. For instance, the twitter ID ‘Rajdeep Sardesai’ is taken! The original Rajdeep has had to create one in true Olympic list style with ‘Sardesai Rajdeep’! Here, the nature of the tweets - scoops or programming information are usually enough to distinguish a real celebrity from an impostor. 

I know of several people who are active on both; but use facebook to share personal details and views and twitter for their pearls of wisdom on  the goings on in the country. Today, newsmakers don’t need to send a press release or hold a media conference. They can get their message across (without the bother of ‘inconvenient’ questions!) And in a few seconds. In most newsrooms, twitter is slowly overtaking  even news wires as a source of information. When this medium is going to occupy such an important role in our lives, users must be entitled to higher standards of reliability and safety. For starters, let the social media moguls work to ensure that better safeguards against misuse are hemmed in. And let users start reading the terms of service before clicking on the ‘I Agree.’ button.  

NO POST AT SITE ORDERS!

By Sanjay Pinto

Stories that make for dinner table conversations usually find their way to walls, or timelines for those who, as a post lamented, have been “tricked” into the new format. A tale of two events that  played out on the social media; one tragic and the other emotional, in some measure, betrayed our obsession with ‘glamorous issues’. Rahul Dravid putting his willow up in the loft most definitely deserved all the adulatory ‘we will miss you Mr.Dependable’ comments, the likes and the threads. While I don’t for a nano second, grudge the ‘About the Wall On the Wall’ references in cricket crazy India, the  murder of a young IPS officer by the mining mafia in Madhya Pradesh did not seem to provoke enough outrage to find the kind of expression on facebook that it should have. An aberration or a convenient ‘mine’ our business stance? There were the odd tweets ‘When will we get fed up? When will we give ourselves a deadline?’ but this was way below the minimum support posts. Or do we need an Anna Hazare fast again to clear seemingly clogged sensors? Is activity on  the social media sometimes directly proportional to mainstream big brother coverage? Not quite. At least, not in this case which was front page news and a top story on television bulletins, with ample scope for the ‘post at site’ syndrome. 

That it could well be the other way around is no longer an exaggeration. These sites are where the pulse of the common man is felt. This is what often gives arise to a surfeit of story ideas; hard news and offbeat. Facebook and twitter are like manna from heaven to most journalists – not just because of the source of information and many a tip off . It is a magic  platform to  post story links, even video links, as bonus readership or viewership! Not just for  working journalists but for NGOs too. ‘Dow Shall Check Facts’ – a  hard hitting rebuttal by an environmentalist to an article on the Bhopal Gas Tragedy has got considerable traction.  The responses to a facebook link would usually far exceed comments on the original piece. That is because the medium lends itself to more convenient interaction. 

Don’t ignore the angst fast forwarded!  Our dear old Finance Minister has a sea of prescriptions for the economy. And oodles of free advice, perhaps even prophylactic doses from the common man desperate for real  relief from inflation, rather than mere placebo steps. Brace yourself for stinging limericks on the budget! On this subject, a whacky comment against the picture of an actor, well known for item numbers, outside Parliament caught my attention: "Now Ministers don't have to watch stuff on their phones!"  

A picture of the Indian Kabadi team standing on the road with their trophy, allegedly without Govt provided conveyance to reach their homes has been widely commented on. What the mainstream media may have missed or not made a big deal about, mercifully got some attention on this space. 

And finally, “I’m leaving facebook. The ride here has been a blast. I’ve made tons of friends. I’ve enjoyed the wit and humour on the site. But I’ve decided to spend time with the family. So see you after lunch.” The sort of shared post that sets apart an addict from a user. A survey had once revealed that an average youngster spends upto 6 hours on facebook; many ‘chatting the night away’; some logging in before brushing their teeth every morning. The urge to put out personal information at way too frequent intervals, quite like a radio jingle ‘I am eating a burger. I think I added too much mustard. I burped’  is beyond my ken. I heard of a  facebook status message on a rollicking time a person was having at a beach, that  was used by an insurance company to turn down a medical related claim by its  customer who pretended to have sustained a fracture ! Let minute by minute updates remain the preserve of news channels! Don’t we have enough of that anyway?

JUMPING THE GUN?

By Sanjay Pinto

It’s a predictable end to a cop-robber chase in India. In movies and in real life. The criminal is either on the prowl or tries to escape from custody (usually on the way to court) or there is a clash and the police fire in ‘self defence’. The gangster is killed (usually with bullet wounds on the head and chest). A few (usually two) cops are injured (usually on the left hand and waist) . The Police Commissioner visits his wounded soldiers (usually Inspectors or Sub Inspectors) in a Govt hospital, the photographers click pictures of them receiving refreshments (usually apples, sweet limes and Marie biscuits) There is a media briefing after every encounter with the top cop claiming that the police party opened fire in self defence. Journalists all try to punch holes in the police theory (usually speaking at the same time and in English and the vernacular language) with questions like ‘Couldn’t you have caught them alive?’, ‘Why are there bullet wounds only in the head?’ . The Commissioner would often face enough provocation to put his boot in his mouth. The media reports are scathing. Human rights activists scream ‘murder’ from rooftops (usually when hardened criminals are involved). The case is handed over to the Crime Branch. Public interest litigation is kickstarted in the High Court demanding a CBI probe. There are impleading petitions filed as well. There is a Commission Of Enquiry (you can sometimes guess the name of the head, depending on the political regime!)  There are TV debates with anchors trying to out shout  activist guests. Newspapers carry editorials, the common man puts up angry posts on the social media and there are columns by ‘experts’!

Hello and welcome to the same old story!  Police encounters are routine in every State. Data from National Human Rights Commission Reports point to the registration of 1224 fake encounter complaints from 1993 to 2009. Is an ‘encounter’ always an euphemism for staged murder, a short cut to closing a case? Or are activists over react sitting on  arm chairs in  their ivory towers?

The Madras High Court is hearing a  public interest petition seeking a CBI probe into the recent gunning down of five gangsters in Chennai who were on the run after robbing two banks at gun point. A slew of petitions have been filed to counter the original plea. Interestingly, there has been overwhelming public support for the police action. In his counter affidavit, the Chennai Police Commissioner insists that the nomenclature of an ‘encounter’ in its strict sense does not tie in with the Chennai shoot out which he claims was firing in self defence during an attempt to arrest criminals identified  by victims after a laborious gleaning of close circuit television footage. This is perhaps the first time that the police has stuck to its guns in a legal battle.

Over to the debate. For starters, the police has no business to punish anyone. Their job is to arrest law breakers and bring them to trial. Neither is it the role of activists to sit in judgment over what is a genuine case of self defence induced killing or staged murder of a suspect. The problem primarily arises when both sides exceed their brief. That the men in khakhi are known for their brutality or at least widely perceived to be so,  loads the debate against them making what may well be an honest account of what transpired, seem like a cover up.

The Indian Penal Code does not mention the word ‘encounter’. It only deals with culpable homicide and murder from Sections 299 to 304. A ‘criminal’, whatever the police files may contain, is only an accused individual, whose guilt has to be proved in court beyond the shadow of doubt. Nothing in the law gives the police a licence to kill. There are instances of mistaken identity – of innocent persons gunned down in fake encounters. Planting weapons is not all that difficult.  A disturbing fact, many fear,  is that in our criminal justice system it is perhaps easier to kill than to prosecute. The temptation to dish out street justice is dangerous. There are also apprehensions that encounters are staged in order to get medals and bravery awards. And in some cases, the ‘glory’  is cornered by a top cop for an act of a subordinate officer. The Supreme Court’s notice to this possible practice was drawn by petitions filed by activists with the suggestion of a blanket ban on decorating an officer for an encounter killing. The trick of registering an attempt to murder case against the slain persons and then closing it later citing their death has also been frowned upon. 

Last year, the Apex Court hearing a plea from Sushila Devi , the wife of an alleged don Dara Singh, who was shot dead by a Rajasthan Special crack team,  even went to the extent of  asking why  a fake encounter shouldn’t be treated  as a ‘rarest of rare’ case of murder entailing the noose for the guilty men in khakhi. The logic:  "If crimes are committed by ordinary people, ordinary punishment should be given but if the offence is committed by policemen, much harsher punishment should be given to them because they do an act totally contrary to their duties.”. Strong observations but can police officers be treated as a separate class of citizens? And would that run counter to constitutional principles? Or do we merely need to have a different yardstick for fake encounters of innocent persons with no criminal antecedents like some cases in Gujarat and the killing of  the ‘Most Wanted’ brigade where the police version of self defence cannot be brushed aside?

The  law is not lopsided. There are four exceptions to murder that could come in handy for the police. Culpable homicide is not murder in the event of grave and sudden provocation, a sudden fight, while exercising the right of private defence in good faith and in the course of the lawful exercise of power by a public servant for the advancement of public justice. In quite the same manner, obstruction of a police officer in the performance of his duty is also an offence. And when it comes to self defence, the doctrine of proportionate force is crucial. If the opposite party has a small blade or knife, shooting him is unwarranted. And there is a difference between shooting to kill and shooting to disarm. Technology today gives the law enforcers tools like tear gas and rubber bullets to disarm and immobilise criminals. Or how about the police party using button cameras to possibly record the actual incident as it happens? Why they are not usually used remains a mystery. Talking of shooting to kill, it’s important to have a basic idea of how firearms work. During arms training, a basic instruction, I gather from sources, is to take what is called ‘half a breath’ before pulling the trigger as even the slightest movement of the arm while breathing can determine whether the bullet hits the head or the thigh! 

It’s not always the police who can be accused of jumping the gun. Civil society is also often guilty of adopting double standards. Imagine a scenario when the cops locate the hideout of a dreaded criminal and in full public glare, the gangster opens fire and escapes. Or worse, takes a member of the public hostage. Even worse, kills the hostage. How would society react? There are bound to be sarcastic comments like ‘are these real men in khakhi?’ ‘Were they carrying toy pistols?’ ‘How can we feel safe if we have cowards paid to protect us?’ But when the police use bullets, they end up in the firing line of activists! Damned if they shoot, damned if they don’t? Why are police officers provided with service revolvers? Surely not as ornamental show pieces.  After the encounter killing of a van driver in Coimbatore accused of  raping and murdering two school children, I remember a parent saying on my news show ‘The Big Question’ on NDTV Hindu :  “today is my Diwali”. Is that a reflection of the delay in our criminal justice system? Or the disenchantment over what some consider ‘lenient’ bail provisions? And on the  silence of the Indian Penal Code on ‘encounters’  a court scene in a Tom Cruise classic ‘A Few Good Men’ comes to mind. The prosecutor asks a witness as to whether a military manual mentions the ‘Code Red’ (an order to deal with a delinquent trainee leading to his death), the defence attorney snatches the book and retorts :” Does it mention where the mess hall is?  It doesn’t right So you mean in your entire stint you never had a meal?!”

I also often wonder why activists conveniently forget about victims of crime and take up cudgels for perpetrators? Do victims not have human rights? Does a bank manager who has a gun pointed at his temple by dacoits not have human rights? Does a sole breadwinner of a family locked up by gun totting robbers who loot a bank not have human rights? Does a middle class father who loses all his savings in a bank meant for his daughter’s wedding not have human rights? Does a man in uniform who walks past a door in a hideout of criminals not hurling ice cream cones but firing bullets from  illegal country made weapons not have human rights? Human rights are for all.

The National Human Rights Commission’s guideline that every encounter must be investigated as a potential case of murder can be an adequate safeguard only if State police departments fall in line and intimate the Commission of every custodial death. And ‘custody’ is to be interpreted in a wider sense to include ‘control over.’  But the police is entitled to the benefit of doubt. There must be patience for the outcome of an honest enquiry. Sweeping generalisations are a national pastime. General distrust of the police is another reality. And whether a CBI probe is the only ‘independent’  and ‘neutral’ route may well hinge on political configuration! The debate can only end if these issues are addressed. Till that happens, it’s fair for the experts to say ‘Judgment Reserved.’

STATUS 'CORE'

By Sanjay Pinto

To deify or to demonise. With a keyboard or pad to hammer and a wall to spout, these are the extreme options exercised by average cricket fans. Like a weathercock; they heap encomiums when Dhoni & Co win and vent spleen when they don’t. In the good old days, there was just the Letters To The Editor columns with limited space to comment on issues. Today the social media has made users Editors in Chief of their thoughts with absolute freedom to place in the public domain, just about anything that provokes them. Facebook and twitter are a great leveler. Here everyone is an expert.  And nothing engages the nation, quite like cricket. What started as sarcastic posts like “If you want to watch India win, switch to hockey!” gradually degenerated into angry outbursts  such as “ Endowment Lectures by the Men In Blue. Dhoni on 'Fast Outfield, Slow Fielders.' Tendulkar  on 'The Mirage Called The Hundredth Hundred.' Sehwag on 'Senior-Junior, kya fayda?' Gambhir on ' Keeping Mum Helps and How'and  R. Ashwin on 'Best Practices and How to Get Away from Them On the Field.”

In a matter of five hours, the lampooning gave way to tongue in cheek posts  “For a change Kohli can show his bat proudly instead of his middle finger to the crowd” . And suddenly national pride is back! ”And the Oscar for The best surprising act goes to Virat Kohli.” Or better still, “India did a Rajinikanth against Sri Lanka.” Mercifully, on cricket you can turn to tweets by the likes of  Harsha Bhogle who reject the herd mentality that “dhoni is letting it drift? But where are the bowlers to exert pressure?”  As a wall post screams: “People who criticised Team India during the rough patch have no right to cherish their victory! 

 Now we cannot point fingers at the authors.When a game becomes a religion, the glorious uncertainties are forgotten and miracles are expected everytime. In the whole commentary, there were small regrets. “Just when Hockey was getting some limelight comes this win.”

What I find most heartening about facebook are campaigns for causes; even a means to help people in distress. Remember the  ‘Search For Thamana’ initiative in Chennai? A school girl put up the missing child’s picture and enlisted volunteers to hunt for her. How exactly she disappeared still remains a mystery. With government websites still quite outdated and many bureaucrats active on the site, this space is gradually turning into an effective grievance corner. Officials get direct messages, chat windows pop up and some are even tagged on Status updates. 

I know of IAS aspirants who browse through status updates as closely as they read newspapers, just to get different perceptions of contentious issues. One of them who has chosen public administration as an optional subject, recently told me that she finds wall posts quite like mini editorials! 

And if you’re preparing a  speech, you don’t really need to reach for the Toastmasters Almanac! Walls are replete with witty one liners and smart alec  comments. Sample this: “Men are like Bluetooth – connected to you when you are around but search for other devices when you are away. Women are like Wi Fi – see all available signals but connect to the strongest one!”

NEIGHBOURS' PRIDE

By Sanjay Pinto

On every patriotic occasion, the Manasarovar  Buildingin Abhiramapuram would be the first to hoist the national flag. An initiativespearheaded by its oldest resident P.Ramalingam, a retired Executive Directorof the Madhya Pradesh Electricity Board, who passed away on Wednesday after abrief illness. He is survived by his daughter Indrani Kailas and son R.Parasuram, a serving IAS Officer.

An alumnus of Loyola College and Benares Hindu University, Mr.Ramalingam proved that social service can extendwell past your retirement. While in Govt service, Mr.Ramalingam wasinstrumental in the creation of  the HighTension Power System. After hanging up his boots, he slipped into his keds –setting up a community radio station, writing books and creating awareness onpower conservation and the NREGS.


As a neighbour, two incidents are fresh inmy mind. On Valentine’s Day, a few years ago, I remember featuringMr.Ramalingam   on NDTV – 1962: A Different Love Story!Although his wife Kamala passed away many years ago, Mr.Ramalingam told me thathe still celebrated Valentine’s Day (and even went on to talk about his firstkiss!) because “memories don’t die.”


Just before he was hospitalised, he hadasked his maid Muniyamma for her Pongal wish, to which she casually retorted:“get me a silk sari!” But guess what, while lying in the ICU, he ensured thatthe money for that sari reached her before Pongal.


Come Republic Day, we will continue to hoist the tricolour at Manasarovar.Because memories don’t die. 

The Defamation Law – Shield Or Sword?

By Sanjay Pinto

What the Constitution Of India guarantees its citizens, a provision of the Indian Penal Code seeks to undermine. A fundamental right that the world’s largest democracy can be proud of – freedom of speech and expression, runs the risk of being rendered a dead letter by  a Code of 1860 vintage, that was designed by the British  to muzzle the press and patriotism. Even a fresher at Law School will tell you that in a toss up between a Constitution mandate, that too one that is enshrined as a basic structure and any other law, it is the former that shall prevail. So in Article 19 (1) (a) Vs Sec.499 of the Indian Penal Code, I hold a brief for free speech. At a time when there has been an outcry to erase the ‘unnatural’ taint from homosexuality, at a time when there is a  demand for the abolition of capital punishment for murder, at a time when there is  a nationwide chorus against corruption and the media rattling skeletons in cupboards; at a time when the fourth estate, along with the judiciary, of course, is being seen as the last ray of hope for the common man, particularly against the ‘Swindlers List’,  are we going to allow a damocles sword – the prospect of imprisonment,  to hang over the heads of journalists for performing their democratic duty? It is for this reason that several countries, including neighbouring Sri Lanka, have decriminalised defamation. As the Law Ministry in India is debating the issue, I’ve decided to throw my hat in the ring and  implead myself in the case!

Criminal defamation’s most predictable recipe is malicious prosecution. Not a month passes in the country without  some vindictive soul running to a  magistrate with a vexatious criminal complaint  against a journalist. And yes, with  two set up witnesses to say that they had lost respect for the complainant after reading or watching a news story! (I wonder how many who actually lose respect for a person will take the trouble to accompany the ‘defamed’ bloke to the salubrious environs of a criminal court to pour their heart out!) Ironically, some of these ‘victims’ of ‘criminal defamation’ would be either accused of some scam or raided by Central or State Govt sleuths and resort to this tactic more as a pre-emptive strike or a prophylaxis to ensure that no more dirty linen is washed in public! It’s hard to resist quoting Lord Denning: “if you don’t want your dirty linen to be washed in public, it’s very simple. Don’t have dirty linen at all!”.

The Code Of Criminal Procedure, under Sec.482, may  seek to remedy the potential mischief by giving High Courts the inherent power to quash such frivolous criminal complaints. But at what cost? And given the backlog in our High Courts and the Supreme Court, how often are they able to intervene? The easiest option is to ask the petitioners to prove their innocence in the trial court. And the complainant often deliberately throws up a slew of ‘matters of fact’ that High Courts cannot go into,  to scuttle a quash petition. Isn’t the trial itself the punishment for a journalist who has to make endless trips to the lower court, sometimes even in far flung and remote areas, and stand as an accused along with petty criminals? Mercifully, there is that ‘dispense with presence’ allowance. However, the higher judiciary must never lose sight of the fact that they are not mere courts of law but courts of justice.

 The basic ingredient of criminal defamation is the ‘intention’. It is the passion for an expose or a good story that drives a journalist, not criminal intention or mens rea .(I’m not talking about exceptions like planted stories or scurrilous writing or paid news) Even Lord Macaulay contemplated  ten exceptions to Sec.499. The landmark Bhajan Lal case notwithstanding, High Courts and the Supreme Court have held that these exceptions can only be raised at the trial stage.  How many criminal defamation cases end in conviction? And apart from an infringement of Art 19 (1) (a), don't frivolous criminal defamation cases also strike at the root of his freedom to practice his profession, guaranteed under Art 19 (1) (g)? When a journalist is acquitted in a trial court, the complainant, invariably uses the various tiers of judicial wisdom as a tool of further harassment. For how long can a journalist keep fighting? If in the end, the criminal charge cannot be substantiated, what is the criminal form of redressal? There is only the option of a civil suit for malicious prosecution and damages.

All the other estates of democracy have some form of immunity. The judiciary has the Contempt Of Courts Act. Legislators have privilege. Prosecuting Government officials requires sanction from higher powers. And don’t forget a penal provision to take care of any obstruction in the performance of their duties. There is a court marshall for defence forces. Even when political leaders in power use the State legal fire power through their Public Prosecutors to file criminal defamation cases against their opponents, these cases are routinely withdrawn when there is a change of guard! I must mention a new trick that politicians use to gag inconvenient journalists – proxy complainants! Having ‘patented’ benami transactions, they are undisputed experts at shooting over the shoulders of their minions with private complaints so that the new dispensation cannot withdraw them! What is the protection that honest and neutral journalists have against legal excesses and vexatious adventurism?

With the proliferation of 24 hour television news channels, I do believe the law needs to keep up with the times. In criminal defamation complaints against the electronic media, the grossly inapplicable Press & Registration Of Books Act is being invoked! What’s most unfair and disturbing is the round robin style implication of Editors of live telecasts. So it’s not just a Reporter accused of  defamatory utterances but even the Editors who are fastened with criminal liability and made to troop to court.  Vicarious liability exists only in Torts. It has no place in criminal law.There are two broad categories of television news items. Live Outdoor Broadcasts by Reporters and Edited News Stories. A basic understanding of the medium will reveal that it is impossible to edit what is live. If you cannot edit what is live, what is the role, the liability, much worse, the criminal liability of an Editor of a live telecast? Often, even the scroll or ticker that keeps running on the screen is a sort of automated process based on the information provided by the Reporter during the live telecast. What’s also pertinent here is that Reporters involved in news gathering are given a fair amount of freedom and autonomy to report truthfully what they see or hear, subject to editorial guidelines. Their sources are confidential. It is impractical to expect Editors to cross check everything Reporters say in their live telecasts. Editors cannot be expected to carry truth serum and subject their Reporters to lie detector tests everyday!  Edited news stories have scripts written by reporters on the field and  vetted by Editors, voiced and packaged. This is where the ‘Editor’ can come in. Quite like the ‘Editor’ of a print publication. Unfortunately, this distinction is lost on many. In the  absence of a specific law to govern content in the electronic news media, individual channels have devised their own internal code of ethics. There is the National Broadcasters Association that oversees the exercise of self regulation. This is to obviate the need for the State to impose censorship and gag the news channels that telecast anti establishment stories. A good recent example of self regulation is the verdict on the Babri Masjid issue. Not a single national television channel aired the old visuals of the mosque being demolished as that would have rekindled the old wounds. Neither were any provocative reactions or images telecast after the verdict.

Of course, no one in their senses will deny the prevalence of yellow journalism and those who use the medium to settle personal scores with slander or to even blackmail others for a quick buck. But let’s not indulge in broad brushing.  Let each journalist’s reputation speak for itself. Let aggrieved parties pay court fee and file civil suits for damages. Criminal Defamation, that allows persecution of credible journalists, is an unreasonable restriction on freedom of speech. It’s rightful place is the archive of legal history. Let defamation law be only a shield, not a sword.