Quashing Dissent: Where National Security and Commercial Media Converge #FOE #FOS


Vol – XLVIII No. 09, March 02, 2013 | Sukumar Muralidharan, EPW

Constitutional guarantees of freedom of speech and expression in India today, seem a distant, almost illusory promise when the politics of the street — and a loud and seriously misinformed media – are final arbiters of fundamental rights and the defence of privilege is becoming the dominant motif of state policy.

Sukumar Muralidharan (sukumar.md@gmail.com) is a freelance journalist based in New Delhi.

Between February 14 and 15, the Department of Telecommunications (DoT) in the Government of India issued five separate orders to internet service providers (ISPs), blocking access to no fewer than 164 URLs or web addresses where specific content is hosted. All five were issued in seemingly unquestioning and unreserved compliance with ex parte orders emanating from courts. No reasons were given, though as things transpired, these were not very difficult to figure out.

Of the five orders, three were issued with clear intent to clamp down on protests in Kashmir after the February 9 execution of one-time militant Mohammad Afzal Guru.  Physical movement in all of Kashmir had been blocked by a pre-emptive curfew imposed early that morning. As news of the execution filtered through, local news channels and newspapers were told to suspend operations. And though the internet remained available through broadband, the more widely used modes of access in the valley — mobile telephones and wireless datacards – were disabled. The information lockdown persisted five days in the case of newspapers and an entire week for internet users. For local TV news channels, it still continues. But through the pores in this blanket of censorship, the people of Kashmir were still managing to make their anger and bitterness heard. The DoT directive, calling specifically for the shutting down of a number of pages on the social networking site “Facebook” was obviously about shutting that source of dissent.

An information blockade imposed on a region where rights to life and liberty have been in suspension might seem a lesser injustice, though it is part of the same apparatus of repression that particularly targets any possibility that an occupied people may conduct a social dialogue that reaches beyond immediate constraints of location and space. Yet for all that, there was nothing really unusual about the effort to tighten the information blockade on Kashmir, a region that has long been in a state of exception in the Indian political map, where even the pretence of guaranteed rights and entitlements does not apply. Indeed, a similar blockade on mobile telephone services had been imposed in the valley just a fortnight prior, while the rest of India was celebrating the anniversary of its republican constitution.

A second category of website blocks ordered in DoT’s most recent round of sweeping censorship, applied against the mimicking or parodying of important public institutions, such as the Bombay High Court. Few dissenting voices were raised here. If anything, there may have been some reservations about the recourse to heavy-handed censorship, where the task of sifting between the authentic and the fake, might well have been left to the judgment of the internet user , worries that the DoT action may have cast the rare visitor to these sites as an infant in need of the guiding hand of a nanny state.

The IIPM related blocks

What really raised eyebrows and triggered a war of attrition on the internet was the third category of order issued by the DoT, blocking seventy-three specific web addresses ranging over a total of fifty websites. The formal order addressed to all ISPs, began with a peremptory, “it has been decided”, much like an edict issued from a sovereign that is beyond challenge. After listing the sites to be censored, it entered a plea for secrecy, uncharacteristic for a sovereign acting with absolute authority. Letters of compliance to be filed by all those at the receiving end of the edict were not to mention the identity of the blocked URLs.

If the intent of that caution was to conceal the identity of the guiding hand behind this extraordinary measure of information denial, it did not go far. The common element in the seventy-three web addresses that were blocked was soon discovered to be the Indian Institute of Planning and Management (IIPM), an establishment with a pervasive presence in the media, despite its uncertain provenance and rather anomalous status within the landscape of higher education, where it claims to belong. Indeed, the IIPM advertising budget, the envy of most other institutions in the same category, wins it a high degree of exemption from scrutiny in the mainstream media. No such privilege though, is granted within the alternate discourse of the social media. Indeed, that is where the problem was clearly seen to lie.

Cryptic in its content and opaque in terms of its legal basis, the DoT order was traced by the small but vigorous community of free speech advocates on the internet, to emanate from an order by a court in the city of Gwalior in Madhya Pradesh. For the most part, it applied to blogs and independent initiatives by consumer groups and civil society actors to promote a dialogue on issues of public concern: such as the quality of service offered by various civic and commercial institutions. The IIPM, unsurprisingly for an institution with a high media profile, had come in for some searching scrutiny and been found wanting: several of the postings on these sites, drawing on first-hand experiences of the services (or lack of it) that it offered, were trenchant in tone and content.

It emerged soon afterwards that the Gwalior court had issued its order under provisions of the Indian Penal Code (IPC, section 499) dealing with the offence of defamation and the Information Technology Act (IT Act, section 69) which enabled government authorities to demand the blocking of certain sites by ISPs and intermediaries such as Google and Facebook. Evidence that the court had applied the tests of intent, accuracy and public interest that are thepreliminaries mandated by law before sanctions are imposed for defamation, was conspicuously lacking. And what literally leapt out in the DoT edict was the very first URL on the list, which belonged to a public institution, the University Grants Commission (UGC). In a notice issued in July 2012, ostensibly in compliance with a directive issued by the Delhi High Court in ongoing litigation, the UGC had recorded its finding that the IIPM was not a university under applicable law. It was in other words, not empowered to grant degrees in business management or any other discipline of study.

In holding the UGC liable for defamation, the Gwalior court obviously omitted any serious engagement, either with the history of litigation involving the IIPM, or with the law. Section 499 of the IPC is explicit about certain exceptions where in circumstances to be judged by the courts, the offence of defamation would not apply: these include, the “imputation of truth which public good requires to be made or mentioned,” the “public conduct of public servants” and the “conduct of any person touching any public question”. Clearly, any assessment that the UGC may have made about the academic credentials of the IIPM, when communicated to the public, would potentially fall within the scope of these exceptions. That the Gwalior court overlooked these aspects of the law points towards an egregious omission.

“Hacktivist” Response

Internet activists were quick to wreak vengeance. On Friday 16, the website of the IIPM was hacked and put out of service for a limited period of time. And under pressure from a growing chorus of outrage, the owner and executive head of the institution, Arindam Chaudhuri, took to the social network to explain his actions. The court order applied only to website content that was defamatory in an explicit sense, he pleaded. Satirical sites may have been included in an over-broad sweep of content pertaining to the IIPM, but remedies would be quickly instituted once a closer examination was made. As for the UGC and one other public institution in the education sector – the All India Council for Technical Education (AICTE) – Chaudhuri was scathing in his assessment: “I should say UGC and AICTE are organisations full of bribe-seeking corrupt officials where, even at the top, they have a track record of being caught red-handed and being jailed. … I suspect that UGC – at the behest of some of our petty competitors with dirty past records of filth and cheating, and public notices against them – had been deliberately spreading misleading information about IIPM to hurt its business interests and had even gone to the extent of falsely calling IIPM a fake university”.

There is much that is specious in the IIPM explanation and a great deal that the judiciary has to explain about its manifestly perverse order. Within days of the DoT implementing its blocking order, the Department of Information Technology (DIT) – a partner department under the Ministry of Communications – resolved on appealing it at the appropriate judicial forum. That may well have been too little too late. As the senior advocate and legal scholar Rajeev Dhavan has pointed out, in all such matters “the real mischief takes place right at the beginning … when injunctions are freely granted to prevent the publication or dissemination of an existing or proposed publication”.

The IIPM is a practised hand in censorship through legal injunction. In June 2011, it filed suit against Caravan, a monthly magazine of political and cultural commentary, for the sum of Rs 50 crore (INR 500 million), after the magazine had in its February 2011 issue, featured an article titled “Sweet Smell of Success: How Arindam Chaudhuri Made a Fortune Off the Aspirations — and Insecurities — of India’s Middle Classes”. The article was a substantive pre-publication excerpt from a book by U.S.-based journalist Siddhartha Deb, due for publication in July 2011. The IIPM lawsuit named the author, the publisher Penguin Books (India) and the internet search portal Google (India) as respondents, other than Caravan, accusing them of “grave harrassment and injury”. The lawsuit was filed not in Delhi, where both the IIPM and Caravan are based, but in Silchar town in the north-eastern state of Assam. IIPM was the second petitioner, the first being a Silchar businessman known to be associated with the institute as a recruiter.

At the first hearing of the case, the civil court in Silchar granted the IIPM a preliminary injunction, enjoining Caravan to remove the impugned article from its website. This decree was issued ex parte, without any pre-hearing notice to the magazine. The article was since taken off the Caravan magazine website, though it has been retained in the Internet Archive. In the most recent round of court-ordained censorship, the magazine’s July 2011 announcement that it intended to fight the injunction was blocked, but then republished under a different URL.

In October 1972, India’s Supreme Court heard a case brought by Bennett Coleman and Company Ltd (BCCL), publishers of the Times of India – and a number of other large newspaper enterprises – challenging a newsprint rationing order introduced to deal with a situation of acute scarcity. The official plea entered on behalf of the rationing was that the larger newspaper groups would, if allowed unfettered access to the market, buy up all the supplies available, depriving smaller players – and with this, large sections of the Indian population – of the means to speak and be informed. The judgment in the case of Bennett Coleman and Co Ltd v Union of India is one of historic significance, since it remains the most authoritative statement yet, on how the constitutional guarantees of free speech devolve into the narrower construct of media freedom. Yet this is a judgment that remains strangely inconclusive, since in addressing the issue of the free speech right, the majority opinion of the Court seemed to oscillate rather indecisively, between a notion of free speech as a privilege enjoyed by the few, and a broader conception of the unreserved exercise of the right by all.

In deciding the case, Justice A.N. Ray spoke for the majority and observed that the “individual rights of freedom of speech and expression of editors, directors and shareholders, are all expressed through their newspapers”.  But then a few pages on, the majority opinion effectively widened the ambit of the right: “It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express”.

Having elevated media freedom to a higher plane and rendered it into an entitlement enjoyed by all citizens, the majority in the Bennett Coleman case had little difficulty striking down newsprint rationing as a violation of article 19 guarantees on free speech. The rest of the majority judgment in the matter clung very closely to the liberal orthodoxy on the right to free speech: that governmental regulation is an evil more invidious than private monopolies. When it looked at the prospect of “monopolistic combination” in the press, it was only to rule it out. And even if the likelihood did arise, newsprint allocation could not be a feasible “measure to combat monopolies”.

Of special significance in this context is the lone dissenting judgment delivered from a bench of five judges, by Justice K.K. Mathew, who explicitly conceded the possibility of a conflict between the public interest and the profit motivations of the press. Using a “theory of the freedom of speech” that essentially viewed it in terms of twin entitlements — to speak and be informed – Justice Mathew observed that “the distribution of newsprint for maintenance of (newspaper) circulation at its highest possible level .. (would).. only advance and enrich that freedom”. As a constitutional principle, “freedom of the press” was “no higher than the freedom of speech of a citizen”. The problem at hand was one of bringing “all ideas into the market (to) make the freedom of speech a live one having its roots in reality”. In pursuit of this ideal, it was necessary as a first step, to recognise “that the right of expression is somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers”.

Freedom of expression in other words, also involved the right of access to media space. And this requirement would be met only through the “creation of new opportunities for expression or greater opportunities to small and medium dailies to reach a position of equality with the big ones”. This was as important, in Justice Mathew’s judgment, “as the right to express ideas without fear of governmental restraint”. What was required was an interpretation of the free speech right which recognised that “restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups”.

Indian Media – An Echo Chamber for the elite

For all the appearances of growth and diversification that it presents, there is increasing worry that the Indian media with its advertisement-driven revenue model is becoming an echo chamber where those with economic clout and purchasing power talk among themselves, leaving out the voices of the vast majority. Citizens who happen to inhabit the zones of exception, such as Kashmir and he north-east, are excluded from participation by virtue of their infirm commitment to what is by elite consensus, deemed the “mainstream” ethos of Indian nationalism. And the socially and economically disadvantaged in other parts, are inconsequential because they are of no interest to the advertiser who sustains the media industry bottomline.

In this context, the growing number of social media users offers a potent challenge to the hegemonic narrative that emanates from the mainstream media. The most articulate voices here emerge from the top two or three percentiles of the population, who have access to the estimated 14 million broadband internet connections. But within this narrow stratum, there is already more dissent against the news priorities and editorial policies of the mainstream media, which in terms of reach addresses a multiple – though not a very large multiple – of broadband users.

More worrying for those who believe media freedom is a great idea as long as a few wise men control the message, is the rapid growth of internet and social media users through the mobile phone network. This is a growing constituency in Kashmir, the north-east and indeed, in several regions of the most bitter political contestation in India: territories where the promise of the minority judgment in the Bennett Coleman case is actually being sought, that media freedom is not just a right to be exercised on “sufferance” of those who own newspapers or the airwaves, but a right that all citizens have to speak and be heard, even beyond limitations of location and space.

There is a long history of repression of this manner of free speech, but few instances where sanctions have been imposed on speech that meets every authentic criterion of “hate”. This is unsurprising, since this category of speech usually emanates in the Indian context, from Hindutva and other such supposedly “mainstream” participants in the national consensus. The February crackdown on websites is probably just a minor punctuation mark in the long-term evolution of the doctrine of “legitimate” repression of basic rights, when exceptions to the rule of free speech could be decreed. It is nonetheless, a point at which some clarity is imparted. Constitutional guarantees seem a distant, almost illusory promise when the politics of the street — and a loud and seriously misinformed media – are final arbiters of fundamental rights and the defence of privilege is becoming the dominant motif of state policy. This most recent information blockade targets political dissent from the fringes of “mainstream” nationalism and also a prospective challenge to the commercial calculus of the “mainstream” media.  It shows how close the convergence is, between the propaganda needs of the national security state and the commercial compulsions of the mainstream media. Finally though, what is most apparent about this new effort at controlling the message is its utter futility, since the avenues through which people can speak and be heard are multiplying in such diverse ways, that information repression no longer is an option for states anxious to preserve control.

Arindam Chaudhuri, the IIPM has sued The Caravan- and fight is on #Censorship


Arindam ChaudhuriSilchar

FEBRUARY 15, 2013

Given below is the text of a press release put out by THE CARAVAN magazine in 2011. This was first published in Kafila on 22 June 2011 and is being republished today for all those who may be interested in following up on the defamation case filed against The Caravan for a profile of Arindam Chaudhuri. The Supreme Court had stayed the case in August 2011.

When I read The Caravan‘s cover story on Arindam Chaudhuri some months ago, I wondered when he was suing them. And he’s done it! While a court injunction has made The Caravanremove the story from their wesbite, you can read it thanks to Google cache. No wonder Chaudhuri’s sued Google India as well! Given below is the full text of the press release put out byThe Caravan. Unlike when Chaudhuri took on bloggers in 2005, I’m glad it is an organisation with the resources to fight the case and take him head on – not to say that requires some spine as well. After you’re done reading the release below, entertain yourself with all the Arindam jokes on Twitter.  

IIPM’s Rs500-million lawsuit against The Caravan
In response to our February profile of Arindam Chaudhuri, the IIPM has sued The Caravan.

Here’s why we’re fighting the suit.

The Indian Institute of Planning and Management (IIPM), whose director, Arindam Chaudhuri, was the subject of the cover story of our February 2011 issue, has filed a lawsuit against The Caravan, citing “grave harassment and injury”. The article, titled “Sweet Smell of Success: How Arindam Chaudhuri Made a Fortune Off the Aspirations—and Insecurities—of India’s Middle Classes”, was written by Siddhartha Deb, a contributing editor at The Caravan and an accomplished writer and university professor based in New York. Deb’s profile of Arindam Chaudhuri, which shows how Chaudhuri built an image for himself and how he runs his educational institution, has been critically praised for both its thorough reporting and its spirit of evenhandedness. In the weeks that followed its initial publication, in print and on The Caravan’s website, the extensive article was widely referenced, commented on, and shared by readers.

The suit against The Caravan, which seeks huge damages, has been filed not in Delhi, where both the IIPM and the magazine’s publisher, Delhi Press, are based, but 2,200 km away in Silchar, Assam, 300 km from Guwahati, Assam’s capital. The IIPM filed the case at the Court of Civil Judge in Silchar district, through one Kishorendu Gupta, who operates Gupta Electrical Engineers in a Silchar suburb, and is the first plaintiff. IIPM is the second plaintiff.

In addition to The Caravan and its proprietors, the suit charges Siddhartha Deb, Penguin (the publisher of the upcoming book by Deb in which the article is a chapter), and Google India (which, the suit alleges, has been “publishing, distributing, giving coverage, circulating, blogging the defamatory, libelous and slanderous articles”).

The civil court in Silchar granted the IIPM a preliminary injunction, enjoining Delhi Press to remove the article in question from their website, ex-parte, without any pre-hearing notice.

Kishorendu Gupta is a commissioned agent who works for the IIPM on a contractual basis. Although Gupta is called a counselor, a contract between Gupta and IIPM shows Gupta is a recruitment agent who has commercial interest and is paid for his service on a commission basis. IIPM’s contract with Gupta states:

“for number of students enrolled between 1 to 24, the compensation would be 75,000 per student …[and] for anyone who crosses the 25 students mark, the compensation would be 90,000 per student…[and] for anyone who crosses the 50 student mark, the compensation would be 1,25,000 per student” (From the agreement submitted by the plaintiffs in the court).

It is learnt that the IIPM has filed similar lawsuits against certain other publishers, also in Silchar, Assam, rather than in Delhi.

In 2005, the IIPM filed a case against Rashmi Bansal, a blogger and editor of Just Another Magazine (JAM), who published an article in print and online questioning many of the claims made by the IIPM in its brochures and advertisements, which highlighted that the IIPM had not been accredited by any Indian agency such as AICTE, UGC or under other state acts. The IIPM filed a case against Bansal from Silchar, Assam, even though she runs a small independent outfit based in Mumbai. The IIPM managed to get an ex-parte order from the court, forcing Bansal to remove the article from the website. The IIPM also filed for damages.

In 2009, Careers360 magazine, published by Maheshwar Peri, who is also the publisher of Outlook magazine, carried an article titled “IIPM – Best only in claims?” investigating the authenticity of many of the claims made by the IIPM in their advertisements. The magazine’s investigation revealed that the IIPM claimed that its students were eligible for MBA degrees from IMI, Belgium, but that NVAO, the accreditation organisation of Netherlands and Flanders (Belgium), did not recognise IMI. Also it reported that following a local agitation against the opening of a new campus in Dehradun, the state government of Uttarakhand had asked the Uttarakhand Technical University to conduct an enquiry on the activities of the IIPM, with which IIPM did not co-operate. The investigations revealed that IIPM could not in any circumstances award valid MBA/BBA degrees or conduct such courses in the state of Uttarakhand. The IIPM, again, filed a case against the magazine and the publisher in Silchar, and obtained ex-parte restraint against them. The IIPM also filed a criminal case against Maheshwar Peri from Uttarakhand, which was subsequently quashed by the High Court. The cases against Rashmi Bansal and Careers360 are both still underway at the Silchar courts, as the IIPM seems to be interested in dragging the matter out now that their purpose has been served by obtaining interim restraints.

The Caravan’s profile of Arindam Chaudhuri was the most thorough article published to date on the subject. The 10,000-word story was the result of several months of work by Siddhartha Deb, whose exhaustive reporting included interviews with Arindam Chaudhuri himself and several of his close associates who spoke openly about the IIPM and its critics, coverage of Chaudhuri’s public functions, and an account of considerable time spent on the IIPM campus. The piece is distinguished by both its detailed research and its refined literary style.

The Caravan intends to fight this suit because we believe that we must defend the right of journalists to report on controversial subjects or persons without undue fear of legal intimidation from powerful entities or organisations that seek to insulate themselves from criticism. Delhi Press, the publisher of The Caravan and many popular titles like SaritaWoman’s Era,Grihshobha and Mukta, has time and again been at the forefront of defending the right to freedom of speech and freedom of press during its 70 years of publishing history. On account of the bold anti-authoritarian and anti-religious obscurantist articles published in its leading socio-political magazine in Hindi, Sarita, the group has successfully fought all attempts of legal intimidation over the years.

If the IIPM can demonstrate that any errors of fact have been made, The Caravan will print a correction in the magazine as well as on its website. But the vast majority of the “falsehoods” cited in the legal suit are not based on matters of fact, and the objections merely reflect the discomfort of the IIPM with the language employed to describe the facts.

The Civil Court at Silchar, in its order granting the injunction against the magazine, has noted:

“Defendants had written article making false imputations against IIPM Institute with false and concocted facts only to cause damage to the reputations, Goodwill, education activities of IIPM institute. The said magazine carries and morphid image of Mr. Arindam Choudhury-Dean of the Centre for Economic Research and Advance studies of IIPM saying him as a magician/soothsayer in an attempt to portray him as a trickster and falsely stated that Mr. Arindam Choudhury has a reputation as a fraud, scamster and ‘Jhony come lately’ in order to malign and defame the dean of IIPM and create a negative public image of Mr. Arindam Choudhury”.

In their petition, the plaintiffs have raised an objection to the article’s statement that placements had always been a pressing problem for the IIPM graduates. They have also raised an exception to the author’s claim, based on interviews with Arindam Chaudhuri himself, that almost 90 percent of Planman employees, including faculty members, have been former graduates of the IIPM.

The author had raised questions about the revenue and size of the company to Arindam Chaudhuri and his associates, but these went unanswered. The article states this, along with the fact that while the IIPM spent over 300 million on advertising in 2006, it paid no income tax that year or the previous.

The sum and substance of the petition is that The Caravan has published a false, incorrect, defamatory and libelous article and has made false imputations against the IIPM, which, the petition says, the author and editors of The Caravan knew to be false, and that these were made with the intention to defame the IIPM institute as well as its councilors like Kishorendu Gupta. While we reserve our right to respond to the allegations during the course of legal proceedings, it is interesting to note the following charges in particular:

“The magazine carries a morphed image of Mr. Arindam Chaudhari, Dean Centre for Economic Research and Advance Studies of IIPM, showing him as a magician/soothsayer in a manner which clearly is an attempt to portray him as a trickster.”“The present campus at Satbari is also not in the city’s outskirts nor the road leading to it is dusty. Moreover, the works “proprietor”, “small”, “run of the mill”, “outskirts of Delhi” and “the road is dusty” have been used by the Defendants with the aim to malign and defame the heads of IIPM as well as the IIPM institute.”

As stated before, The Caravan as a respectable publication stands by what has been published, which is a true and accurate account of the IIPM as experienced by the author. But the suit that has been filed leads us to believe that the IIPM does not appear to have any desire to correct the record: instead it aims to prevent any publication of material that paints the IIPM in a light it does not approve of.

The suit, in order to substantiate the charges, offers a long list of students, rent receipts from the Indian Tuberculosis Society, an agreement with Plaintiff No 1 Kishorendu Gupta, which runs into 25 clauses of commercial nature, and various newspaper cuttings.

Freedom of speech and expression is a fundamental right in this country, and various higher courts have consistently upheld this important fundamental right of individuals and publications.

The Caravan will continue to keep its readers updated with the proceedings in the court so that they know the truth about both the veracity of the statements made in the article and the arguments of the IIPM and Kishorendu Gupta. For the benefit of the public, news of the court proceedings will be published by Delhi Press in its 30 magazines in nine languages, which together have a readership of over 30 million people.

The Caravan Editors and Publishers

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