Bleeping out your Freedom? Broadcast Regulation for General Entertainment Channels

The post that follows is a Guest Post by Nivedita Saksena, a Fourth Year student at NUJS.

The censorship of content on Indian General Entertainment Channels (‘GECs’) has been the subject of much discussion and even ridicule recently, with a spate of orders and warnings (see here and here) being passed by regulatory authorities against television channels for broadcasting content that did not match up to standards. The television channels too, in turn, have resorted to self-censorship, which has resulted in many shows being reduced to incoherent and unfunny versions of themselves. Comedy Central, a television channel dedicated to (as the name suggests) telecasting comedic content, could afford to poke fun at this practice before it too came under the scanner of the authorities, and was recently temporarily pulled off the air.

This post analyses the process through which content on GECs is regulated. Some problems that have arisen in this process will be highlighted through a discussion of the Comedy Central order. These include the existence of conflicting regulatory mechanisms and the subjectivity of the standards that are applied while passing these orders.

How Your Favourite Shows Are Regulated

Given the failure of Parliament to establish a central authority to regulate broadcasting in the country, televised content is currently governed by the Cable Television Networks (Regulation) Act, 1995 (‘CTNRA’). Under Section 20 of this Act, the Central Government is given the power to prohibit the operation of a cable television network in the public interest on certain grounds (the sovereignty or integrity of India, the security of India, friendly relations of India with any foreign state, public order, decency or morality). It may also impose these restrictions if it considers that a programme shown was not in conformity with the Program Code contained in Section 5 (read with Rule 6 of the Cable Television Networks Rules, 1994 (‘CTN Rules’)). It has also been given certain powers under the Uplinking Guidelines and Downlinking Guidelines to refuse to grant licenses if compliance with the Program Code is not ensured.

To implement these provisions, an Inter-Ministerial Committee (‘IMC’) chaired by the Additional Secretary of the Ministry of Information and Broadcasting (‘the Ministry’) and composed of representatives from various other government ministries has been set up. The IMC can only make recommendations in relation to decisions taken by the Ministry, which usually issues show cause notices, warnings, advisories or might ask the channel to scroll an apology. Occasionally, a channel might be temporarily or permanently taken off the air, depending on the gravity of the violation. Monitoring is carried out through the Electronic Media Monitoring Centre, which records up to 300 channels 24X7 to spot violations and preserve records of the same. Other channels are not directly monitored, but the Ministry may take cognizance if any violations are reported.

Additionally, the Indian Broadcasting Federation has also set up a mechanism for self-regulation through the Broadcasting Content Complaints Council (‘BCCC’) which addresses complaints through a two-tier process. It is guided by the Content Code and Certification Rules, 2011.

The Comedy Central Order

In June 2012, the Ministry issued a Show Cause Notice (‘SCN’) to the channel Comedy Central with respect to two programmes broadcast by it: ‘Comedy Central Presents’ and ‘Popcorn TV’. It stated that these shows violated Rules 6(1)(a) [offence against good taste and decency], 6(1)(d) [obscene, defamatory material, innuendos and half-truths], 6(1)(k) [denigration of women], 6(1)(o) [content unsuited for unrestricted public exhibition] and 6(5) [telecast timings for content unsuitable for child viewers] of the CTN Rules.

In its response, the channel stated that a self-regulatory mechanism was already in place and that it was the correct forum to address these concerns. They had accordingly forwarded a copy of the SCN to the BCCC for its consideration and the Ministry should raise any further concerns with the BCCC itself. The BCCC, after examining the episodes, was of the opinion that its content was objectionable and that the channel must be careful about airing similar content in the future. However, these violations were found to be the result of a genuine operational error and given the written assurance of the channel to be more careful in the future, they did not recommend any punitive action.

However, the IMC also simultaneously took up the matter. It determined that the channel had violated the provisions mentioned in the SCN and recommended that the transmission of the channel should not be permitted for 10 days. An order to this effect was subsequently passed by the Ministry in May 2013.

Issues Arising Due to Parallel Regulatory Mechanisms

The existence of two parallel regulatory mechanisms (BCCC and IMC) gives rise to some confusion with respect to the procedure for complaint redressal and the hierarchy of orders/directives passed by them. This issue also arose with the Comedy Central Order, and has been discussed below.

Viacom 18 Media Pvt. Ltd., which owns Comedy Central, challenged this order before the Delhi High Court. They raised two main contentions. First, they argued that it was mandatory for the Ministry to consult the BCCC before passing such an order. For this, it relied on the decision of the Delhi High Court in Indraprastha People v. Union of India where it was held that the Ministry would have to treat the decisions of the BCCC as ‘the foundation to take appropriate action and pass necessary directions as also orders against the offender’ given that they would otherwise lack the requisite statutory authority to be legally implementable. In this case, since the BCCC had not recommended a penalty, the same could not be unilaterally imposed by the Ministry. Second, they argued that the quantum of punishment imposed was disproportionate to the alleged violation.

A single judge of the Delhi High Court dismissed the petition, stating that under Clause 10.2 of the Uplinking Policy Guidelines, consultation with the BCCC was mandatory only to the extent of determining whether a violation of the Program Code had taken place. Once a violation had been established, the Ministry could determine the quantum of punishment on its own. In this instance, the question of a conflict between the findings of the IMC and the BCCC did not arise since the latter had also concluded that the impugned content was objectionable. As a result of the decision, the IMC can now unilaterally decide the quantum of punishment, and the order cannot be set aside for a lack of consultation with the BCCC. A reading of this order suggests that if the BCCC were to find that any show was not objectionable, and a conflict between the findings of the two bodies as to a violation was to arise, it would not be possible for the Ministry to take any action in this regard, except under section 20(1) of the CTNRA.

The quantum of punishment was considered appropriate considering that fact that under the Uplinking Guidelines, the Ministry ordinarily has powers to ban a channel for 30 days for the first violation.

The Court also examined the decision in Star India Pvt. Ltd. v. Union of India, wherein a warning had been issued to the petitioners with respect to the show ‘Sach ka Saamna’. It observed that in this case, since the Court had upheld the government action (that had been taken without consulting the BCCC), it had impliedly made such a consultation a non-mandatory requirement. However, in Star India, the Court had clearly stated that such a consultation would not have been possible as the BCCC had not been constituted yet. In future cases, however, the BCCC was to be the first forum to be approached as it was a broad-based expert body, as opposed to the IMC which was a body composed only of government bureaucrats. The BCCC may further approach the Ministry for appropriate legal action in case of non-compliance with its directives.

This ban was later stayed by a division bench of the High Court on an assurance that the impugned content will not be telecast in the future.

Subjectivity of the Findings

This case also highlights the issue of subjectivity with respect to the content which is the subject matter of such orders. The court itself acknowledges this problem, and attempts to draw a distinction between content that was ‘ex facie vulgar and obscene’ and content where ‘more than one views [sic] may be possible with respect to their nature’. It opines that if the content falls in the former category, failure to consult with the BCCC would not vitiate a penalty, and it would also be possible for the court to pass an order to restrict the telecast of such content. But for content in the latter category, examination by an ‘independent broad-based body’ should be necessary. But the question still remains: who determines whether a show was ex facie vulgar or if multiple opinions were possible with respect to it?

If one were to examine the impugned content in this case itself, this problem becomes very apparent. According to the court, it fell in the ‘ex facie vulgar and obscene’ category. But the first video (from ‘Comedy Central Presents’), for example, would only seem vulgar if it was seen in isolation from its context. Some familiarity with the work of the comedian Jon Lajoie would demonstrate that he often uses parody in his comedy, as has clearly been employed here. Further, even though the second video (from ‘Popcorn TV’) may be crass, it is not graphic in nature. It does not portray real women, but only a ludicrous disproportionate blow-up doll. The subjects of the prank are aware of its nature at all times.

The Comedy Central order, then, is our latest reminder for the need to ensure transparency and non-arbitrariness in Indian broadcasting regulation.

On the Unfortunate Rise of the Indian SLAPP Suit

It is not news in this country when the law or other institutions of the state, are used as tools by which to threaten or intimidate citizens into submission to a particular course of action or to a particular point of view. Unfortunate as that is, today’s post will deal with the rising incidence of SLAPP suits, an abuse of the adjudicatory process that is also a feature in a number of jurisdictions elsewhere.

Our interest in them arises from two sources. The first is the particular damage that this device is able to do free speech. Its effects were quite picturesquely described in the following terms by the Delhi High Court in M/S. Crop Care Federation Of India v. Rajasthan Patrika (Pvt) Ltd. “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”  [Rajasthan Patrika in turn borrowed this language from Gordon v. Marrone, a case in the New York Supreme Court.] The second is this piece of news.

About the Phenomenon

The term “Strategic Lawsuits Against Public Participation” is rather self-explanatory. Nevertheless, some of its features bear the explicit articulation:

First, there is always, and necessarily, a power imbalance between the parties in such cases: the plaintiff or complainant will always have greater and often disproportionately greater access to the resources necessary to enter and sustain a litigation, in addition to social, political or corporate power. A simple shorthand for SLAPP suits will always be Deep Pockets v. Free Expression. And so it has been in India, as this article evidences.

Second, there is always one object: to intimidate a target into silence or apology by way of legal action or the threat of it. SLAPPs are a win-win play for those that employ them: targets are likely to bow to the pressure given that they will not have access to the resources to mount a legal defense. Even where the defendants’ (relatively scarce) resources are diverted to the defense of their speech, even assuming that the threat and costs of litigation, the civil damages and/or penal consequences do not intimidate them, their opportunity cost will be considerably higher than that of the other party. Given the ordinary rigours of the adjudicatory process and the ubiquitous delays associated with it in India, however, the harassment function of the SLAPP is always achieved.

Third, SLAPP suits are always characterized by a flimsy, frivolous or even non-existent cause of action. They will have done their damage irrespective of, and before, the outcome of the suit is decided. The question of legal tenability, and in these cases, its absence is really not one of any relevance. The real damage is done by forcing defendants to bear the trouble (monetary and otherwise) with preparing and mounting the legal response/defense itself, rather than by the litigation’s ultimate success or failure. A little amusing then that in the latest instance, which I describe later in this post, it is a law student, presently in law school and writing for a legal blog who finds herself on the receiving end of such threats.

Defamation SLAPPs

Defamation is a classic tool by which contrary opinions are sought to be silenced by those in (political, social or corporate) power. Rajeev Dhavan argues here that defamation is becoming an increasingly popular tool by which the “politics of exposé” and whistleblowers participating in it are being threatened. [SLAPPs in India have arisen on the back of other causes of action as well. See, for instance, the case of S. Khushboo v. Kanniammal and Frontline discussing it.] Lawrence Liang details a number of older instances in which defamation has been used in Indian courts to silence speech here.

Much more recently, Tata Sons Ltd. v. Greenpeace International, involved intellectual property and defamation claims in a game designed to bring attention to the threat to Olive Ridley turtles from developmental activity in Orissa. The IIPM saga that rose to prominence in February this year is another instance of such litigation. It is also one that carries the added ignominy that a university, whose function one would presume is to foster critical thinking and the ability to constructively respond to criticism, would sue for defamation against criticism and use the state apparatus to employ opaque means by which to silence the allegedly offending content online [see here and here]. IIPM also demonstrates how SLAPPs will involve what have been called “creative ways” to abuse of process: more than one suit can be filed, and they can be filed in more than one jurisdiction or in jurisdictions in which it is difficult for the target of the suit to appear or defend him or herself.

On Attempts at Silencing Academic Opinion

While the Activist v. Corporation trope is by now a tired one, it appears that the incidence of SLAPP proceedings, both civil and criminal, against commentators and academics are on the rise:

Ajay Shah’s case has been a well-documented one [see here and here], and one in which the Bombay High Court did not appear to appreciate the SLAPP dynamic. Closer to home, Shamnad Basheer [see here and here] a professor at NUJS and founder of SpicyIP saw a defamation SLAPP suit for what appears to be an exercise in only academic analysis.

As of the 21st of this month, it was reported that a student contributor at the same blog, Aparajita Lath faces similarly suspect allegations of defamation from a newspaper [see here and here]. Here is a case not of Activist v. Corporation or Whistleblower v. Government, but of Academic Opinion v. Press. There is a special and truly unfortunate irony in the press having recourse to tools like the defamation suit, and even more egregiously, the criminal complaint.

Why We Worry

A number of rights of the target are ordinarily affected by SLAPP suits. In what was a significant case for the United Kingdom involving a defamation suit brought by McDonald’s against two authors of a pamphlet criticizing it, the European Court of Human Rights (‘ECtHR’) recognized in Steel and Morris v. United Kingdom a number of the following rights:

First, there is the right to free expression itself. Violations of this right would arise on two levels, although the second may not be actionable. First, there is the right of the defendant to the SLAPP suit. Steel and Morris affirmed that the fact that the defendants to the defamation suit were not journalists did not mean that the scope of their free speech protection would differ [¶89]. Instead, it held that “the limits of acceptable criticism” where “large public companies” were concerned was wider than those that would otherwise apply [¶ 94]. India’s Supreme Court has, in one notable instance, disagreed on the proposition that bloggers should have similar rights to journalists. Next, there is the chilling effect: others placed similarly to the targets of SLAPP suits would self-censor to avoid legal retaliation for their views and the significant cost of defending themselves.

The importance of Steel and Morris however comes from this latter set of holdings. The ECtHR found that the right to fair trial, in civil and criminal cases, which included the right of access to court and to justice presumed an “equality of arms” as between contesting parties [¶ 59]. It held to this effect on the understanding that European Convention on Human Rights, the underlying rights instrument, was a guarantee of practical and effective rights. In the circumstances of that case, it found that since the financial disadvantage of the defendants in the defamation suit disallowed them the opportunity to mount an effective defence, there was a clear inequality of arms with McDonald’s that rendered the trial unfair for the purpose of Convention Article 6 (1) [¶72].

The IIPM blocks add a further dimension to the problem. When the content complained against is online, India’s lack of clear legal principles to determine, and more crucially limit, where the cause of action will have arisen and can be tried will only exacerbate the blogger’s situation, given the arguably global spread of an audience for online content.

A final point about this trend, particularly as it relates to silencing academic comment, is that it is a dangerous one, and one against which we must all speak out: these cases, in which the challenged content offers studied comment against the powers that be, will be a good acid test for the strength of our speech protections as they fall squarely within the class of speech which constitutional protections seek to maximize and disinhibit. It should be the very minimum that the Article 19(1)(a) guarantee entails.

More on this in a second post.

Disclosures: Aparajita Lath is a student of NUJS, as are a number of us on the Free Speech Initiative. In addition, I serve on the Board of Editors of the NUJS Law Review along with her. This post, however, is intended to reflect on the growing (and increasingly visible) incidence of the SLAPP suit and its effect on our freedoms to comment and criticize and to have access to articulations of the contrarian view.

A (Long Overdue) Call to Responsible Reporting of Crimes Against Women

We’ve been watching the recent coverage of the rape of an NLSIU student with considerable alarm. As if the incident isn’t horrific enough on its own, its flagrantly insensitive and inaccurate reporting adds considerably to the victim’s distress in this, as in all other cases of reporting on crimes against women. It is without question that measures, both palliative and reformative, are sorely necessary to address the problem. We hope to flesh out what exactly those should be in forthcoming posts.

NLSIU’s student body has taken the commendable step of taking some proactive measures in addressing the larger problems, through petitions addressing lapses in policing leading up to the incident and in the reporting of the incident itself. We welcome you to sign both.

They’ve asked that we publicize the contents of their petition to the Press Council and newspaper editors, and I’ ve reproduced it in full, along with its annexures below:

To,

The Chairman, Press Council of India,

Editors of national newspapers and news channels.

Bangalore, 2012.

Dear Sir,

SUBJECT: FLAGRANT VIOLATIONS OF JOURNALISTIC ETHICS AND PRESS GUIDELINES

This is in light of the alleged incident of gang-rape of one of the students of National Law School of India University, Bangalore (NLSIU) in the Jnanabharati campus last Saturday, the 13th of October. Unfortunately the manner in which it has been reported by the national media has been nothing short of shocking. The incident has been sensationalized and the identity of the victim has been divulged. We write to you in light of this irresponsible reporting.

Privacy of the victim of a crime of rape ought to be protected. This is necessary given the social prejudice attached to the act of sexual assault. A victim of rape has to live with the stigma of this crime, long after the crime. Under s.228A of the Indian Penal Code, disclosure of the identity of a rape victim is punishable with imprisonment for up to two years and fine. The right to privacy has been recognised by the Norms of Journalistic Conduct released by the Press Council of India in 2010 which states that, “while reporting crime involving rape, abduction or kidnap of women/females or sexual assault on children, or raising doubts and questions touching the chastity, personal character and privacy of women, the names, photographs of the victims or other particulars leading to their identity shall not be published.” This guideline has been flagrantly violated by the recent media reports of this incident which have divulged personal details of the victim, stopping only short of revealing her name. In fact, even the Hon’ble Supreme Court on various occasions has also directed the media to exercise restraint when reporting incidents of rape such that the victim’s privacy is protected. These directions too have been ignored by the media. (Annexures 1-5)

What is also disconcerting is the manner in which the reports have questioned the victim’s character. This is unbecoming of responsible journalism. That a woman can be raped irrespective of the time of the day, the place she is in, or the manner in which she is dressed is well known.

Media reports about the incident have resorted to victim blaming which will have serious repercussions on the manner in which the victim is perceived by society. This could even prevent the victim from regaining a sense of normalcy post this traumatic experience. Furthermore, such media bias has the potential to prevent other women from reporting instances of rape in the future for fear of being blamed. It is urged that the media be sensitive when reporting about this incident henceforth at least. (Annexures 6-8)

Furthermore, at a time when it is imperative that the investigation is conducted smoothly, media hype and hyperbole deter efforts of state agencies. The media has been irresponsible enough to publish and report misinformation and conjectures even though investigations are still under way. (Annexures 9-11)  Students of NLSIU are being hounded by journalists, even as the student community is itself going through a difficult time amidst misreporting about the management’s response to the situation. (Annexure 12-14)

This has created a situation in which there are many versions of the truth, thus creating a sense of panic which is not only unnecessary but also dangerous. The danger of this hype is twofold – the first is that this could affect an unbiased investigation from being conducted and secondly, this makes it impossible for the victim and other students of the NLSIU community from regaining a sense of normalcy. It is imperative then for the media to not only be sensitive while reporting the case, but also accurate. They should be at the forefront of informing and educating the public at large about the larger law and order issue as opposed to creating cheap publicity.

Thus, in the interest of the victim and in the interest of justice, we implore you to direct journalists of all media organizations to exercise restraint and adopt responsible journalistic practices in reporting this deeply disturbing incident. The NLSIU community seeks your cooperation in these testing times.

Sincerely,

Student Bar Association,

National Law School of India University.

Attached: Annexures

Annexure – 1

DNA, 15 October, 2012

A second-year law student from Nepal, studying at National Law School of India University (NLSIU), was allegedly sexually assaulted by a gang of eight miscreants near Bangalore University premises on Saturday night at around 9.30 pm.

The 22-year-old woman was strolling with her boyfriend Nirmal Kumar, an employee at a technology firm, on a desolate stretch between the law institution and the BU campus when they were stopped by miscreants.

Available at:

http://www.dnaindia.com/bangalore/report_law-student-allegedly-gang-raped-near-bu_1752580

Annexure – 2

Times of India, 16 October, 2012

The victim is a second year BA, LLB (Hons) student and stays in the NLSIU hostel. The boy, from Kollam, Kerala, works with an IT major. They were sitting in a car in the Jnanabharathi campus when they were accosted by the iron rod-wielding gangsters. The men broke the windshield of the Volkswagen Polo car and beat up the boy before taking away the girl deep into the wooded area.

Available at:

http://articles.timesofindia.indiatimes.com/2012-10-16/bangalore/34498281_1_nlsiu-drunk-men-volkswagen-polo-car

Annexure – 3

The Hindu, 16 October, 2012

A 21-year-old law student was allegedly raped by a gang of eight members near Gandhi Bhavan on the Jnana Bharathi campus here on Saturday night. The victim, a second year student of National Law School of India University (NLSIU) and a native of Nepal, had gone with her boyfriend, Nirmal, to the secluded wooded area about 2 km from Gandhi Bhavan around 10 p.m.

Available at:

http://www.thehindu.com/news/states/karnataka/law-student-says-gang-raped-her/article4000131.ece

Annexure – 4

Zee News, 20 October, 2012

The victim is a second year student of the National Law School of Indian University and hails from Nepal.

Available at:

 http://zeenews.india.com/news/karnataka/five-arrested-in-bangalore-law-student-s-rape-case_806596.html

Annexure – 5

Deccan Chronicle, 20 October, 2012

The victim is a second year student of the National Law School of Indian University and hails from Nepal.

Available at:

http://www.deccanchronicle.com/channels/nation/south/six-arrested-law-student-gang-rape-case-968

Annexure – 6

Times of India, 16 October, 2012

But once the mikes are switched off and pens sheathed, the officers and administrators launch into a barrage of innuendos and insinuations against the victim.

Here’s what The Times of India gleaned from top officers and administrators:

“The girl’s complaint says she was gang-raped but she has no bodily injuries to show any forced sex. The girl’s clothes, too, were intact,” said a police officer.

“How can a girl walk back after being raped by eight men?” asked another officer.

“She says she was raped inside the NLSIU campus. How can she be made to forcibly scale a 10-ft high wall that was in the way?” he said.

Some police officers are also brazen in their attempts to tar the victim’s character. “She was seeing a boy and then parted ways with him. Then she began seeing this guy who was with her when she was allegedly gang-raped,” one officer said.

Another top source in the home department imputed motives to the girl’s complaint. “She was rusticated last year by her university due to shortage of attendance. This year, too, she has an attendance problem. She is resorting to this drama to gain the varsity authorities’ sympathy,” the source added.

However, TOI’s inquiries with NLSIU sources revealed that the girl has not had any attendance problems till date.

Available at:

http://articles.timesofindia.indiatimes.com/2012-10-16/bangalore/34498016_1_nlsiu-police-officer-national-law-school

Annexure – 7

One India, 21 October, 2012

The 21-year-old who is pursuing a course at the National Law School of India University had gone out that day with an IBM employee whom she had recently befriended. On the way back to the hostel where the victim stays, her friend stopped the car to have a brief chat.

Available at:

http://news.oneindia.in/2012/10/21/7-held-for-raping-law-student-in-bangalore-1087126.html

Annexure – 8

DNA, 16 October 2012

Citing the alleged failure of NLSIU in reining in its students from being indisciplined, BU authorities have decided to issue a circular to the law school. An official circular from BU will reach NLSIU officials on Tuesday. BU’s registrar (evaluation), BC Mylarappa, told DNA, “We are fed up with the way the students of NLSIU are behaving and also about the bad name our campus is getting because of them. We will not tolerate this anymore and will issue an official notice.” He said the notice would only be a warning. “(But) if they do not correct themselves or continue to fail to keep their students under control, we will consider withdrawing our land provided to NLSIU,” said Mylarappa.

The alleged gang-rape of the law student, who hails from Nepal, has triggered afresh the latent anger nursed by BU authorities over NLSIU students using BU campus well past 10 pm. A lot of forested land is part of BU campus, and these areas are notorious for all kinds of activities.

Available at:

http://www.dnaindia.com/bangalore/report_bu-mulls-over-evicting-law-school_1752944

Annexure – 9

Deccan Herald, 27 October 2012

Initial medical examination report of the law student, who complained she was raped by a gang of eight men on the Jnanabharathi campus on Saturday night, has not been able to establish rape.

Dr O S Siddappa, Dean and Director, Bangalore Medical College and Research Institute, said on Monday the doctor who conducted the medical examination of the victim informed him that there were no traces of any sexual assault on the victim’s body.

“The condition of the victim would have been very bad had there been a gang-rape, but there were no such traces found during the medical examination. However, minor abrasions were found on the victim’s body. Samples have been sent to forensic laboratory for further examination,” Dr Siddappa said. Police officials, however, deny receiving the report.

The girl, a second year student of the National Law School of India University (NLSIU), has claimed that she was with a male friend, when the gang accosted them and raped her.

Police sources say that vaginal swabs of the victim had been sent to forensic lab. The report is expected in a fortnight.

Though police officials refused to speak on record on the issue, they are sceptical about the victim’s claim of multiple rape. The alleged spot of the assault on the girl is dotted with thorny bushes. Police expressed surprise that the girl had sustained no injury. The medical condition of the girl is stable and she has not received any medical treatment after the incident, say the police. The medical report seems to have shared the scepticism of the police. The girl is presently lodged at the law school hostel.

Available at:

http://www.deccanherald.com/content/285686/loose-ends-rape-plaint-baffle.html

Annexure – 10

DNA, 16 October, 2012

The police team investigating the case involving the rape of the law student from Nepal inside the Jnana Bharathi campus suspects that the complaint filed by the 22-year-old girl is fake. However, the police are waiting for the Forensic Science Laboratory (FSL) report before arriving at a conclusion.

On Monday, a team of around 30 police officials went to the spot where the girl was allegedly raped. It took almost half a day for the team to find the spot at the end of forest area inside the Jnana Bharathi campus. The police officials walked close to five km through the forest before the girl helped them spot the area which is surrounded by a seven-feet high compound wall. There are also two dilapidated buildings and a small Lord Shiva temple near the spot.

The area cited by the girl is strewn with thorns and broken pieces of liquor bottles. According to the police, had she been raped at the spot, she would have suffered injuries due to thorns and glass pieces. Since she did not suffer any injuries, the police suspect that her complaint may be fake.

The girl reportedly told the police that she was raped by the gang at 9.30 pm. But she managed to reach the hostel in the campus by 12.30 am. A police officer who visited the spot told DNA: “We spent almost half a day to reach the spot during daytime. But the girl reached the hostel in two and a half hours in darkness. This also makes us suspect that the complaint may be fake.”

The girl also told the police that the gang helped her climb the wall after raping her and fleeing the scene. According to the police, even if the gang helped her climb the wall, it would have been difficult for her to jump from atop the wall after being raped by a gang of eight miscreants. “Also, she must have suffered injuries while jumping as the area is full of thorns and glass pieces. But she did not suffer any injury,” the police officer said.

When questioned, her boyfriend Nirmal Kumar, who is working with a private firm, reportedly told the police that the gang threatened the two after finding them near their car. Nirmal told police that he got scared and fled the scene. But he did not rush to the police station; he contacted the police only after the girl reached the hostel.

During interrogation, he told the police that the miscreants first demanded money. When Nirmal told them that he had left his wallet in his car, they asked him to fetch it. But they insisted on keeping the girl with them until he returned. Nirmal, leaving his girlfriend alone, ran back to get his wallet. But on returning, he found that the miscreants had vanished with his girlfriend.

After subjecting the girl to a medical examination, the police took the feedback from the doctors who told that there are only a few reasons to make them believe that the girl was raped.

According to police sources, the girl had a rivalry with the gang over some issue and hence she tried to file a fake complaint.

When the police asked her whether they can call her parents to the city and inform them about the incident, she requested them not to inform her parents. According to the police, one of the girl’s friends was giving statements to the police on behalf of her.

Available at:

http://www.dnaindia.com/bangalore/report_law-students-rape-plaint-may-be-fake-suspect-police_1752953

Annexure – 11

Times of India, 19 October, 2012

Is the boyfriend a suspect in the October 13 gang-rape case? The police seem to think so.

The youth, an employee of an IT major, was with the victim, a National Law School of India University student, at the Bangalore University campus when she was allegedly gangraped by a group of 7-8 men. Police have sought a virility test on the boy, according to a document in possession of The Times of India.

The memo said he was the victim’s friend. He was present at the time of the crime and was assaulted by the hoodlums, it said. Yet it named the boy as an accused and said virility and other tests should be conducted on him.

Police asked for the tests to determine whether the “accused was capable of engaging in sexual intercourse”. The memo also sought a medical report on whether the “injuries on the youth’s body were a result of assault or some other situations”.

Available at:

http://articles.timesofindia.indiatimes.com/2012-10-19/bangalore/34583155_1_memo-medical-report-bu-campus

Annexure – 12

Times of India, 15 October 2012

When TOI contacted NLSIU registrar V Nagaraj, he said, “Talk to the vice-chancellor. Talk to the police who are investigating.” Vice-chancellor R Venkata Rao was not in the country, according to the woman who took the call at his residence. Students and fellow hostellers have refused to talk.

Available at:

http://articles.timesofindia.indiatimes.com/2012-10-15/india/34471590_1_hostel-room-nlsiu-police-constable

Annexure – 13

Deccan Herald, 15 October, 2012

The registrar of the premier institute said the incident had taken place on the Bangalore University campus limits and, therefore, NLSIU cannot be held responsible for the lapse in security. “There is no need to step up security on the law school campus. There is already enough security. Please speak to the police commissioner as he is responsible for security arrangements outside the law school gate,” the registrar told Deccan Herald.

Bangalore University Registrar B C Mylarappa said he would convene a meeting on Tuesday to discuss the possibility of setting up police checkposts at all important points on the campus.

The law school has to step up security and advise its students not to step out late at night, he added.

“What business did the student have to go out with her friend at that hour,” he asked. BU officials have washed their hands of the incident saying it did not involve their student.

Available at:

http://www.deccanherald.com/content/285674/nlsiu-denies-security-lapse-says.html

Annexure – 14

India Today, 17 October, 2012

Three days after a second year student of the prestigious National Law School of India University(NLSIU) was raped by unidentified people in the adjoining Bangalore University campus, the future lawyers have locked horns with the NLSIU management seeking deployment of police or central forces for security.

The fact that the NLSIU has a fair mix of students from across the country has intensified their demand for better security. Tensions between the students and the management have increased following the rape incident.

Available at:

http://indiatoday.intoday.in/story/nlsiu-students-management-police-cover-rape/1/225154.html

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The Fine Line Between Private and Public: How Private a Person is Robert Vadra?

Guest post by Maneka Khanna, a third year student at NUJS.

Much defense of the Vadra-DLF controversy has been centered around the private nature of the deal, a deal between two private entities, with special focus on the ‘private person’ status of Robert Vadra. There has been speculation about which side of the ‘private-public’ spectrum Vadra falls in, fuelled by his ‘son-in-law’ nexus, the nature of his business transactions, and most recently Facebook categorizing him as a public figure. Those claiming that he is a public figure have also cited the Congress government’s defense of Vadra and his airport security exemptions to support their claims. This post will look at the legal definition of public figures that Courts have expounded while discussing the tensions between freedom of speech and competing claims of public figures.

Legal Definition of Public Figures

The first case dealing with freedom of speech and the right to privacy of public figures in the Supreme Court, R. Rajagopal v. State of Tamil Nadu, provided no conclusive definition of public figures. However, it did emphasize their role in ordering society and influencing policy. Taking this understanding a step further, the Delhi High Court proposed an interesting definition of public figures in the landmark Phoolan Devi case, holding that public figures are those who have arrived at a decision due to which public attention is focused on them. This is apparently a tautological definition because, by the Court’s logic, the public scrutiny that a person receives determines his status as a public figure, rather than the other way around. To put this in context, it appears that Vadra could be termed as a public figure as a result of the controversy centered around him, rather than on some independent criteria of his position. Needless to say, such a definition could be problematic while deciding the legitimacy of media exposés of those whose public status remains undetermined.

A more sophisticated approach of the Delhi High Court can be seen in Indu Jain v. Forbes, where the Court held that persons whose “standing, accomplishment, fame, mode of life or profession” gives the public a legitimate interest in their affairs may be termed public figures. Two important principles emerge from this definition: first, the role of legitimate public interest in the determination of a public figure and second, the emphasis of the court on the voluntary nature of those in the public sphere.

Public Figure by Affiliation

By emphasizing profession, standing and accomplishment as criteria for public figure status, the Court in Indu Jain minimized chances for those involuntarily dragged into the limelight from getting public figure status. Courts in India have had a conservative approach in this aspect, as is evident in the Madras High Court judgment in A. Raja v. P. Sreenivisan, where it held that the family of A. Raja could not be termed public figures merely due to familial political affiliation, despite the large political scandal surrounding A. Raja at the time. Therefore it is unlikely that Courts would find the mere martial affiliation of Vadra suffice to term him public figure.

However, official orders have seen this marital affiliation as sufficient to extend the privileges of public officials to Vadra, namely, the exemption from airport security checks. RTI queries show that Vadra is exempt merely because he is married to a Special Protection Group protectee, as per AVSEC order 06/2009. Such official recognition of Vadra as a ‘special’ citizen dilutes the private person claims made in his defense. Moreover, reports have also cited money laundering regulations and standards to categorize Vadra as a “Politically Exposed Person”. The intergovernmental organization to combat money laundering, the Financial Action Task Force has, in its guidelines, categorized important public officials along with their families as Politically Exposed Persons. Grouping of public officials and their families in the same category gives due recognition to the higher risk of involvement of these individuals in bribery and corruption due to the power and influence they hold. While such guidelines are not binding and have no constitutional significance, it remains interesting to see that officials and their family are being categorized in such a manner, due to the innumerable examples of impropriety that families of high ranking officials have been involved in.

However, despite this, I argue that Courts will be conservative in terming individuals ‘public figures’ merely due to their affiliation, when they have not voluntarily entered the public domain, because of the significantly lower threshold of protection that public figures enjoy in the face of public scrutiny.

The Role of Public Interest

Therefore, the last trump card, not only used in deciding competing claims of free speech and privacy but also in determining the threshold question of who a public figure is, is that of ‘public interest’, as seen in the Indu Jain definition. While the contours of what public interest comprises of remains unsettled both nationally and internationally, what may be concluded is that in cases where the status of public figure remains dubious, the justification for the public scrutiny of the person is decided on the public interest in the subject matter. This undoubtedly has been the case in the present controversy, as few have been able to question the level of public interest in the same.

However, some senior advocates argue that without the state government’s role in the controversy, the matter would not fall into the public domain. This brings us to another question brought up by the controversy; what threshold do private financial transactions have to pass to come within the public domain and open to public scrutiny. At what point can the media be legitimized in exposing details of private business transactions? While public limited companies such as DLF are not bound by the Companies Act or Accounting Standards to disclose details of each business transaction, such dealings have been viewed as corporate governance issues. The investor and larger public interest in dealings of large public companies such as DLF is evident in the slump in DLF stock prices following the controversy.

Similar tensions between transparency and privacy have been the subject of public debate surrounding the RTI and the Prime Minister’s statement and merit consideration in a separate post. Without delving much into these matters, I argue that many of these answers, similar to those related to public figures, lie in the public interest in such information and the level to which the larger public is affected by such information.

Perhaps a more nuanced understanding of the term ‘public figures’ will be helpful in answering the threshold question of which category a person falls in, in order to decide the legal protection that would accrue. Concepts such as ‘voluntary’ and ‘involuntary’ public figures (see e.g. Wolston v. Reader’s Digest Assn., Inc.) and ‘limited purpose public figures’ (see Gertz v. Robert Welch, Inc.), used in the United States defamation case law, can be used to draw more watertight distinctions and concrete standards. I argue that such standards, when used by the media and the Courts, will bring objectivity and reduce reliance on the much contested ‘public interest doctrine’.

Free(zing) Speech in a Crisis: The Virtues of a Considered and Constitutional Response

Last month, news of rumours of persecution of Indian citizens of Northeastern descent began to be widely reported. By the 21st of August, it appeared that authorities had authorized internet service providers to block a vast number of websites online for “inflammatory content”. Authorities said that the website blocks were intended to prevent further communal unrest and incitement to violence after clashes had broken out in Assam amongst Muslim settlers and indigenous Bodos. With the publication of a consolidated (but not comprehensive) leaked list of the blocked websites, which revealed that four orders blocking atleast 310 items had been passed, however, it has become clear that the blocking was widespread, careless, and sometimes unnecessary or even counter-productive. Coupled with the disabling of a number of Twitter accounts, including some parodying the Prime Minister, and curbs on SMS services, the blocking has become the subject of popular condemnation across media.

[See here, here, here, here and here for a fairly representative sample of the news and opinion surrounding the blocks.]

Legality and Legitimacy of the Blocks

Legal Basis for the Blocks

Generally speaking, any censorship will have to amount to a reasonable restriction on the right to freedom of speech and expression under Article 19 of the Constitution. More specifically, however, the Information Technology (Procedure and Safeguards for Blocking of Access to Information by Public) Rules, 2009 empower the Government to block access to content online. It appears that this instance of blocking was an exercise of the emergency power under Rule 8 of the blocking authority under those rules. The rules themselves are framed under Section 69A of the Information Technology Act, 2000, which empowers the Central Government to direct any government agency or intermediary to block access to content, where that blocking is “necessary or expedient” on Article 19 (2) grounds.

[Section 69A was introduced by the 2008 amendment to the IT Act, which, along with the rules, is available here.]

Scope of the ‘Public Order’ Entry in Article 19 (2)

After the First Amendment was enacted in response to the Supreme Court’s decisions in Romesh Thapar v. State of Madras and Brij Bhushan v. State of Delhi(see here for an interesting aside on the First Amendment), restrictions “in the interests of . . . public order” are constitutionally permissible. The Supreme Court has defined the term, early on, to be “synonymous with public safety and tranquillity: it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State” (Superintendent v. Ram Manohar Lohiya). It also held that the use of the phrase “in the interests of” rather than “for the maintenance of” rendered the exception very wide in amplitude (Ramji Lal Modi v. State of U.P.).

Assuming that the IT Act provisions and Rules are lawful (and I am not entirely sure that they are, as we will show in future posts), it appears that the blocking is prima facie constitutional, for being implemented under a valid 19 (2) ground.

While the substance of the restriction is always a concern, it’s possible to argue that formal considerations of procedure in implementation are often even more important to accord rights-infringing state action legal and moral legitimacy. And that is where the URL blocks fail.

How Lawful Censorship Should Occur

Given that the public order ground does apply to this instance of blocking, the next line of the inquiry into constitutionality will be whether the test of reasonableness is satisfied. Our Supreme Court held as early as in 1950 in Chintaman Rao v. State of Madhya Pradesh that it will be the state’s burden to show that a prima facie abridgement of an Article 19 right is constitutionally permissible under the relevant restrictions clause. In other words, the presumption will be in favour of the lawfulness of speech, until it is directly rebutted by the state.

The constitutionality of the restriction consists, in the main, of its ability to satisfy the test of ‘reasonableness’ of the restriction. Simply, it must balance social control by the state with citizens’ fundamental rights. Although there are no absolute standards against which a restriction will be tested, there are several broad guidelines. First, reasonableness refers to substantive as well as procedural elements of the restriction (Dr. N.B. Khare v. State of Delhi). Second, factors such as the manner of authorization of the restriction, the duration and extent of the restriction, the prevalent circumstances, the urgency of the evil intended to be remedied, and whether the Government action was adequately communicated to rights holders will all be relevant (State of Madras v. V.G. Row). Further, Chintaman Rao held that the term ‘reasonable’ implied “intelligent care and deliberation” as opposed to unfair, arbitrary or excessive action. Similarly, vagueness of a restriction can be grounds for defeating it (K.A. Abbas v. Union of India). Consequently, the third requirement is that reasonable restrictions must necessarily be Article 14 compliant, while the fourth is that of specificity and proportionality.

Whether the Blocking is Defensible

There’s no debate as to the legitimacy of blocking on public order grounds. In addition, content that would have been blocked by a targeted order would also render its authors vulnerable under criminal law, under sections 153A, 295A and 505 of the Indian Penal Code, 1860.

Even assuming that the relevant provisions under the IT Act and Rules are themselves constitutional, the implementation of the blocks involved a host of procedural improprieties. Broadly, the lack of transparency is a significant concern. Section 69A itself provides that reasons be given where the relevant authority blocks in exercise of its provisions. The lack of specific notice (of the blocking, with reasons) to the actual authors of the offending content, and of a right to reply is especially problematic. Given that the measure was ostensibly an emergency response, that notice and opportunity for a hearing should at least be accorded ex post. Instead, Rule 16 of the IT Rules for blocking makes the actions taken under these rules strictly confidential. With bodies ranging from the Ministry of Home Affairs and the Ministry for Communications and IT to intelligence agencies such as the Intelligence Bureau, the National Technical Research Organisation and CERT-IN all being involved in the process to degrees and in capacities that are not clear, there is real a lack of accountability and of a right to remedies in the process.

While the proportionality standard under the Article 19 (2) does not go so far as to allow only minimum impairment of free speech (as do the Articles 19 of the ICCPR and UDHR, to which we are party), it is fair to argue that legitimate and morally defensible censorship should attempt to satisfy this standard. It is painfully evident that even the lower of the two standards, that of proportionality simpliciter, is unsatisfied by the orders here: the blocks cover content far in excess of content inciting violence or hatred, as a look at the list of content blocked shows. Also, the orders themselves do not appear to specify the duration for which the blocking will extend, leaving open the theoretical possibility of an indefinite blocking of access.

Preventing Unintended Consequences

The Streisand Effect, a term which describes the physics of communications online is very à propos here: the authorities’ attempts at suppressing the rumours by blocking access to them significantly accelerated the spread of the news about their existence. The danger with adopting a purely reactionary response is that suppressing information may be an ultimately counter-productive exercise, even if the action taken is targeted and specific. What is necessary is that the State take public notice of the bad information and rebut it with the facts, and no attempt at that was made here.

There’s also the obvious (and ironic) consequence of the government shooting itself in the foot by making channels of communication inaccessible to the public. A prominent journalist tweeted that officials were telling him they were unable to provide information because the SMS ban had paralysed their ability to communicate as well.

Finally, the exercise of a little care and of due process could have avoided what was possibly the most counterproductive action: blogs and websites countering the rumours were also listed and blocked. Even if the authorities had erroneously done this, the provision of simple rights, to specific notice and hearing, would have made the difference.

Giving Social Media Its Due

Parallels between the Government’s belief in the internet-fuelled unrest in India and the British state’s view of the power of social networks after the London riots in 2011 are compelling, notwithstanding that despite the initial rancour from their Parliament and press, cooler heads prevailed and no social media blocking ensued in the aftermath of the riots. It is important to note that subsequent studies, such as this one, show that the social media itself was not the evil, the riots were caused by already deeply-rooted underlying social and economic problems. Also, it’s been shown that the unequivocal vilification of social media as a means of promoting violence and illegal activity is unfair: social media may have allowed for information to be exchanged quickly during the riots, but it also mobilized the clean-up.

There are many other instances in which the internet has served as a powerful tool by which panic and alarm in sensitive situations can be mitigated, and good information disseminated. In Japan, during the earthquake and tsunami, Twitter and Facebook played a crucial role in disseminating information. Participatory media such as Global Voices have helped citizens to communicate and report their stories during crises, where they are not otherwise heard.

So, targeting internet content alone will not be a sufficient solution to the recent exodus of Indian citizens from the South back to the North East. Equally, it would be productive to realize that the underlying problem needs to be addressed socially and politically. Blocking is reactionary and transient, and does nothing to address the discomfort of some communities Indian citizens in their own country.

In all fairness, it is not as if the need for specificity in blocking is one that escapes our Government. In July 2006, when ISPs over-censored in response to a DoT direction to block specific content, they were asked to immediately restore access to the content and to show cause. At one stage in this instance of blocking, the Home Ministry issued a press release stating categorically that “[t]here is no censorship at all”, even as it said that any action taken was specifically targeted against offending content. Interestingly enough, the Department of Electronics and Information Technology (or ‘DeitY’, an unfortunate acronym, given the circumstances) of the Ministry of Communications and IT announced Guidelines for use of Social Media by Government Agencies around the same time as the Ministry undertook the indiscriminate blocking.

It is clear that the authorities appreciate that censorship in a liberal democracy is problematic and is presumptively illegitimate, given its emphasis on the preservation of civil and political liberties. It is also clear that the basic principles of targeted and proactive responses to crises, citizen involvement in social media and natural justice are concerns that our Government theoretically recognizes. It is time we saw them implemented.