1. SC finds Bhushan guilty of contempt for tweets
Lawyer’s posts amount to scandalising the court, it says
- The Supreme Court on Friday found civil rights lawyer Prashant Bhushan guilty of criminal contempt by “scandalising the court”.
- A three-judge Bench said his tweet on a photograph of Chief Justice of India (CJI) Sharad A. Bobde astride a bike and another on the court’s role in the past six years scandalised the Supreme Court as an institution.
- The tweets had the effect of attempting to destabilise Indian democracy. Such malice should be dealt with an iron hand in the larger public interest. The magnanimity of courts should not extend to weakness, the top court said in its 108-page judgment.
- The Bench, headed by Justice Arun Mishra, said when a “scheme” was on to damage public confidence in the judiciary, those interested in fearless justice should stand firmly. The court could not ignore the disrespect and disaffection created by the “scurrilous” tweets.
- The Bench fixed the sentence hearing on August 20. The Contempt of Court Act of 1971 punishes with imprisonment that may extend to six months or fine of ₹2,000 or both.
- The judgment said punishing a lawyer was an extreme measure but nevertheless necessary to keep the “streams of justice pure, serene and undefiled”. Judiciary was the central pillar of Indian democracy. It was the duty of the court to punish to preserve its dignity, the judgment emphasised.
- “If such an attack is not dealt with requisite degree of firmness, it may affect national honour and prestige in the comity of nations,” the judgment, written by Justice B.R. Gavai, pointed out. The Bench, also comprising Justice Krishna Murari, dismissed Mr. Bhushan’s defence that criticism was not contempt.
- Mr. Bhushan termed the tweets expressions of his anguish that “everything is not hunky-dory”.
- Justice Gavai differed with him, saying, “Critics are instruments of reform, but not those actuated by malice but those who are inspired by public weal… Hostile criticism of judges as judges or judiciary would amount to scandalising the court.”
What is Contempt?
The contempt of court law is one of the most controversial elements in the Indian legal context.
While the basic idea of a contempt law is to punish those who do not respect the orders of the courts, in the Indian context, contempt is also used to punish speech that lowers the dignity of the court and interferes with the administration of justice.
Contempt of court can be of two kinds:
Civil, that is the willful disobedience of a court order or judgment or willful breach of an undertaking given to a court.
Criminal, that is written or spoken words or any act that scandalises the court or lowers its authority or prejudices or interferes with the due course of a judicial proceeding or interferes/obstructs the administration of justice.
Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish people for their respective contempt.
Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempts of its subordinate courts.
The Constitution also includes contempt of court as a reasonable restriction to the freedom of speech and expression under Article 19, along with elements like public order and defamation.
Why courts need contempt powers?
To ensure their orders are implemented.
To sustain the independent nature of the judiciary itself.
While the judiciary issues orders, they are implemented by the government or private parties. If the courts are unable to enforce their orders, then the rule of law itself will come to grinding halt.
Issues with Contempt Law:
Article 19(1)(a) of the Constitution gives the right to freedom of speech and expression to all citizens, while “contempt provisions” curb people’s freedom to speak against the court’s functioning.
The law is very subjective which might be used by the judiciary arbitrarily to suppress their criticism by the public.
2. Gaps in the casting of India’s foreign policy
Key questions are being asked about the strategic depth of the country’s international relations, and with good reason
- At a time ‘when sorrows come’, not as ‘single spies, but in battalions’ with an unprecedented pandemic, Chinese soldiers squatting on India’s side of the Line of Actual Control (LAC), cartographic aggression by little Nepal, Iran joining a virtual alliance with China, Russia getting close to China, Pakistan shooting across the Line of Control (LoC), a looming financial crisis and other challenges, fundamental questions are being asked about the strategic depth of our foreign policy.
- Fervent calls are being made to go back to the drawing board and shape new policies in these and other cases. It goes without saying that the government will examine all these and other international developments and apply correctives wherever possible. Since the global situation itself is in a flux, there will be many surprises on the way and our own positions will also influence the shape of the post-COVID-19 world.
- Many in India have been taken by surprise at these developments because of the numerous fairy tales which surround international issues, a number of them having been created for the feel-good factor. The understanding of every issue is at three different levels. One is the real situation, which is known only to those at the higher levels and the interlocuters in the government. The second is the official version, properly calibrated for the guidance of spokespersons of the government, while the third is a more rosy picture for the general public who should feel comfortable that the government that they have elected is doing well. The fairy tales are created by the official and friendly press and commentators and are lapped up by public opinion, with a sense that all is well with the world.
- The dream world gets disturbed occasionally when the reality pierces through the carefully created layers of positive impressions and the surprise turns into concern and even panic. Fire-fighting follows to reset relations and to bring back a sense of comfort and normalcy. The fundamental issues remain dormant, but a few high-level conversations, some business deals and carefully crafted joint statements take care of concerns, which disappear as public memory is proverbially short. This is a game that all governments play, not only in India but around the world.
Dealing with China
- The most recent example of a relationship clouded by fairy tales is the one with China. With all the investments made by the Prime Minister and our large galaxy of China experts, we had no inkling of the Chinese perfidy as we had romanticised the ‘Wuhan Spirit’ and the ‘Chennai Connect’ in Mamallapuram, Tamil Nadu. The Prime Minister who alone knew what transpired at these informal summits, said nothing, but his body language and enthusiasm lulled us into thinking that these leaders would never fight a war. It came as a complete surprise that the Chinese amassed troops on the LAC and the Prime Minister characterised the Chinese action as expansionist. But strangely, apart from calling for a reset of relations, we have begun to create a legend that China has committed a “Himalayan blunder” by its military adventure on the border. Even before the promised disengagement has taken place, we have concluded that China lost the battle, which it had begun after careful planning and preparations. We have declared victory in a battle that has not ended.
- We were surprised in 1962 that the erstwhile Soviet Union refused to intervene in the India-China conflict on the plea that “one was a brother and the other was a friend”. Even with that experience, we had taken the support of Russia for granted this time, obviously because of the new relationship which has been established after the Prime Minister’s visits to Sochi and Vladivostock. We now know that the rose-tinted glasses of reliability through which the general public sees Russia are unreal. A President of India had remarked that Russia is an exception to the rule that there are no permanent friends. Russia’s quasi-alliance with China is a reality, while our perception of Russia has the veil of a fairy tale. Our close defence relationship, with 60% of our arms supply coming from Russia is explicable, but not sustainable. A ministerial meeting of India, China and Russia a week after the loss of 20 Indian soldiers at the LAC was intriguing to say the least.
UNSC high table and NSG
- The most celebrated fairy tale is the impression created that the UN Security Council will be expanded soon, and that India will be a permanent member. The impression is widespread even in informed circles because of the occasional optimistic reports emanating from New York. We have been campaigning for a reform of the Security Council since 1979 and there has been really no progress on the issue of new permanent members. Many reports have been written, but as of today there is no formula which can enjoy two-thirds majority of the General Assembly and the unanimous support of the permanent members. The vast majority of the members of the UN would want to abolish the veto rather than give it to more countries. To maintain the myth that India is likely to get a place on the high table with veto power is to keep an illusion alive. A former Foreign Secretary has recently clarified that there was no offer of a permanent seat to India during the days of Jawaharlal Nehru, hopefully ending the speculation on that score.
- Membership of the Nuclear Suppliers Group (NSG) is another mirage that the public believes is a reality. India joining the NSG is like Russia joining the North Atlantic Treaty Organization because the NSG was set up originally to deny India any nuclear material following India’s nuclear tests in 1974.
- Every member of the NSG is a signatory to the NPT and the best it could do was to give us an unconditional waiver, which we already have.
The civil liability law
- We hear about six American nuclear reactors being set up in Andhra Pradesh every time there is a discussion on bilateral relations. Here again, the presumption is that the hurdle of our Civil Liability for Nuclear Damage Bill, placing the responsibility of any damages being on the supplier, will wither away. Many formulae are being suggested, but a senior nuclear scientist admitted a couple of years ago that the United States was using the Liability Law as a smokescreen not to transfer nuclear technology to India. The Clinton White House was of the view that India could use the India-U.S. Agreement on Civil Nuclear Cooperation for acquiring technology and material from other countries, and the U.S. should refrain from strengthening India’s nuclear capability. This position does not seem to have changed.
- There could be instances of other unsubstantiated expectations among the public because of repeated expressions of optimism which are considered harmless. The exaggerated faith in the value of soft power as an instrument of foreign policy and the theory that there is no point in nursing constituencies such as the Non-Aligned Movement may be some of them. But the danger of disillusionment when hopes are belied is greater than removing the cobwebs of fairy tales that shroud key foreign policy questions.
3. Democracy needs an Internet ombudsman
There must be a gatekeeper to balance appetites for technology, security and privacy
- In any triangle of relationship, trust is the first casualty. In the interplay between government, companies and citizens for big data, information asymmetry has become so skewed that it has eroded the very spirit of democracy by limiting the unbiased communication of ideas. Governments and private companies are using the Internet as ‘a means of control and surveillance, extending from cases of fraud detection, storage and exchange of criminal and financial records to those of political surveillance and control’. Citizens who receive a flood of unfiltered information, information with colour but no patterns, information with images that can never add up to the real picture, recirculate the same back into the infantile world for greater chaos. Resultantly, “Information Superhighways” (coined by the U.S.’s “almost” President Al Gore) in democracy are leading to “re-tribalisation” of politics in cabals and cocoons while deliberations are fast transforming into ‘consultations among computer systems’ where trust and security are illusions.
- At a time when the Internet is the new jazz and a tool as also a venue for all political hues, it is important to understand how government, political parties and citizens are responding to this new triangular interplay between data protection, privacy and a flow of information. When the Government of India banned 59 Chinese apps on the ground of transgressing Indian security, the question as to why in the first instance were they allowed into India did not get sufficient importance. Was there no security or privacy audit? While Facebook and Amazon are facing scrutiny on their own soil for their data mining policies, how did we allow so many apps without any check? Government policy on national security should be based on advance strategic assessment rather than on a reactive basis.
‘Control’ and also data theft
- On the privacy front, even after the Supreme Court of India had declared privacy as a fundamental right, the government insisted on affidavit in the top court that informational privacy or data privacy cannot be a fundamental right. The Aadhar Act diluted the notion of ‘privacy’ and the standard of proportionality test set up by the Supreme Court. In an ongoing dilemma, even the ‘Aarogya Setu’ app is battling to satisfy the conscience of privacy overseers. The clear impression is that the government is more interested in ‘control’ than ‘protection’ of data. A national policy on data privacy of individuals is still a non-starter. People continue to suffer because of the regular incidents of data theft. India’s cybersecurity watchdog, CERT-In, last year reported huge data theft of Facebook and Twitter users by malicious third party apps. Reportedly, more than 1.3 million credit and debit card details from Indian banks and the data of 6.8 million users from an Indian health-care website were stolen in the same year.
Private firms and elections
- Private data analytics companies have emerged to exploit the electoral process with the sole objective of customising political messaging. While the customisation of political messaging is not per se illegal, it certainly is unlawful to indulge in unauthorised data mining and collection by the industry. According to a report by Omidyar Network India and Monitor Deloitte, many private enterprises routinely share the personal data of individuals with third parties including political organisations. The fact that there are dedicated IT cells which carry out a digital form of warfare with propaganda and fake news being two powerful weapons is making things more complicated. The present legal framework leaves these menaces outside the ambit of election laws as they were framed in a time and space that was primitive when compared to contemporary technological advancements.
- For citizens, digital media are carriers of images and sounds, rather than words and thoughts, and the system where images run faster than thoughts is suitable for the spread of fake news. Times of fear and uncertainty also provide a fertile ground for disinformation to grow. The fake WhatsApp forwards that triggered the primitive “Us v/s Them” group mentality and is manifested in Delhi riots reports, and the forwards on the novel coronavirus which declare COVID-19 a bacteria and the World Health Organization stating that vegetarians cannot be infected with COVID-19, are all reminders of the potency of data, true or false, in a democracy.
Regulation and independence
- Should there be a gatekeeper to balance appetites for technology, security and privacy? The answer is yes, so long as the gate keeper is for regulation, not surveillance, and so long as it is completely and genuinely independent. Otherwise it will perform an unacceptable legitimation function. The Personal Data Protection Bill, struggling to be born in Parliament despite conception in 2018, is more about control and surveillance than about promoting privacy and protection of data. Far-reaching exemptions, in large measure swallowing the rule, have been carved out where personal data can be processed. Section 35, which provides the government with unfettered access to personal data, negates the three tests of legality, necessity and proportionality given by the Supreme Court in Justice K.S. Puttaswamy (Retd.) vs Union Of India. The Bill also allows State and private parties to process personal data without obtaining consent and such broad exemptions would not only open the floodgates for misuse but also reduce India’s prospects of entering into bilateral arrangements for law enforcement access. Selection committees, terms of appointment and of removal establish beyond doubt that the Authority is likely to be like a rehabilitation centre for retired bureaucrats, yet a sinecure wholly controlled by the government. It is a classic case of rolling up judge, jury and executioner. Only an Internet ombudsman with experts on cyber and Internet laws, IT, data management, data science, data security, public administration and national security, and consciously involving eminent sections of civil society, can be an effective antidote to unregulated technological disruptions.
4. Fishing cat collaring project to begin in A.P.’s Coringa
It aims to study behaviour, feeding habits and threats
- Experts from the Wildlife Institute of India (WII-Dehradun) and the Andhra Pradesh Forest Department are all set to begin the country’s maiden exercise of collaring 10 fishing cats (Prionailurus viverrinus) in the Coringa Wildlife Sanctuary in the Godavari estuary to study the species’ ecology, home range, behaviour in different seasons, feeding habits, threats, movements and use of space.
- By 2018, the population of the fishing cat in the sanctuary was 115.
- The three-year project is expected to be grounded in a few weeks in the sanctuary’s 235.7-sq. km mangrove ecosystem, capturing the fishing cats and collaring them with light weight equipment containing the Geographical Information System.
- C. Selvam, DFO, Rajamahendravaram, Wildlife Management Division, told The Hindu that the Ministry of Environment, Forest and Climate Change had permitted the capture and collaring of the fishing cats. WII experts would collar the fishing cats before letting the animals into their natural habitat.
- Yanam-based Vedanta Limited (Cairn Oil and Gas Division) has come forward to provide ₹74 lakh for the project and ₹45 lakh had been released.