July 1, 2021
Dear Readers,
Greetings!
How challenging are the new Information Technology Rules for Digital Media? Have they a hidden agenda of silencing voices of dissent? As per WhatsApp, the new rules violate the right to privacy and freedom of speech and expression. Looking at the complexities of the matter, the Modi government and the technical giants need to sort out all related issues and the Supreme Court needs to give a final verdict on matters of privacy and the law.
Against the backdrop of a war of words between Mamata Banerjee’s Trinamool Congress and PM Modi’s BJP over former West Bengal Chief Secretary Alapan Bandyopadhyay, I underline the importance of cooperative federalism. The Modi establishment needs to observe functional norms in dealing with bureaucracy.
Twenty months after the Centre ended Jammu and Kashmir’s special status under Article 370 of the Constitution, when shall we see the process of dialogue between the Modi establishment and J&K leaders? There are hopeful signs and the process of dialogue has taken off. All that is required is a confidence-building exercise. Let us hope for a meaningful dialogue to set in the process of democracy in J&K and usher in better economic opportunities for the youth of Kashmir.
Kashmir still has a long way to go as the Gupkar alliance leaders speak in different voices. PDP Chief Mehbooba Mufti wants the “era of suppression to end to make the dialogue credible”. However, yet another disturbing element was seen on June 27 when the Air Force station in Jammu witnessed the dropping of explosive devices from drones. One can see the hand of Pakistan terror groups in this exercise.
An act of protest is not terrorism. The Delhi High Court has set the right tone for the supremacy of citizens’ civil rights under the Unlawful Activities (Prevention) Act. I expect the Supreme Court to look at citizens’ basic fundamental rights in a larger perspective.
Thank you.
Sincerely,
Hari Jaisingh
Will the new IT rules muzzle voices of dissent?
The Indian media still has much new ground to cover. There are several untied ends, both within and without. Muddled thinking, misplaced zeal, lack of objectivity, absence of a broader understanding, arrogance, and one-track approach mark the media as flawed as the other democratic organs. According to Armenian-American journalist and scholar, Ben-hur Haig Bagdikian describes in his article, The US Media: Supermarket of Assembly Line, published in the Journal of Communication:1
“The proper measure of a country’s mass media is whether, by thorough examination and reporting, they increase understanding of important realities and whether through presentation of the widest possible spectrum of thought and analysis, they create an adequate reservoir of insights into the social process. The media may produce entertainment and sell merchandise, but if, in addition, they do not create a rich marketplace of ideas and serious information, they fail in a prime function. In primitive and unchanging times, limited public knowledge and insulation from alternative ideas might have been tolerable. But for a dynamic society, especially a democracy in a rapidly changing world, a lack of diversity in fact and thought leaves a population partially blinded: people will have a defective understanding with which to cope with new circumstances. Diversity and richness in the media are not ornaments of a democracy but essential elements for its survival.”
Viewed in this perspective, social media has given a wider dimension to ideas and thinking processes as it provides services primarily in the nature of messaging and posts. In the process, critical issues of privacy and national security have surfaced. The government therefore came out with new Information Technology Rules for Digital Media, leading the technology giants to lawsuits over privacy issues.
On May 25, Facebook’s messaging platform, WhatsApp, moved the Delhi High Court against India’s new Information Technology rules. Incidentally, May 25 happened to be the deadline for IT intermediaries to comply with the new rules.
WhatsApp plea in the court was that the new rules violate the fundamental right to privacy and the right to freedom of speech and expression. In this context, it highlighted the landmark judgment of the Supreme Court in the K. S. Puttaswamy case where it held that the right to privacy is a fundamental right.
While this was the first major tech company to challenge the new IT rules, it may be mentioned that the Delhi High Court is already seized of petitions by news portals such as The Wire, The News Minute, Quint Digital Media Limited and The Foundation for Independent Journalism, over its attempt to regulate digital news media. The petitions claimed that the new rules seek to regulate online news portals by imposing a vaguely worded ethics code. The High Court has sought a response from the Centre on these pleas.
It is true that social media has brought the world closer by democratizing debates and enabling the exchange of ideas across borders. As such, India has always welcomed social media companies to operate in the country and the people generally use these platforms freely. However, problems related to its misuse have cropped up over the past few years and, in the process, the Centre has revised the rules.
The new IT rules require social media firms to set up an effective grievance redressal mechanism for receiving and resolving complaints from the users or victims. They are mandated to appoint an India-based grievance officer, compliance office and nodal officer to deal with complaints. Complaints must to be acknowledged within 24 hours and resolved within 15 days of receipt.
The Facebook-owned chat messenger service WhatsApp believes that new rules could be misused to muzzle voices of dissent. It would be a pity if a civilised dialogue between two different points of views becomes increasingly difficult in a polarized environment. The danger of vindictive approach to the process of an open dialogue gives wrong signals at home and overseas.
Electronics and Information Technology Minister, Ravi Shankar Prasad says:
“The Government of India is committed to ensure the Right of Privacy to all its citizens, but at the same time it is also responsibility of the government to maintain law and order and ensure national security.”
WhatsApp’s issue with the new rules is one of traceability given its user base of over 300 million2. WhatsApp messaging system has, since 2015, been end-to-end encrypted, which means, in the company’s own words:
“Only you and the person you are communicating with can read what is sent, and nobody in between can access it, not even WhatsApp.”
According to Matthew Hodgson, CEO of Element, a messaging app that supports end-to-end encryption:
“Backdoors necessarily introduce a fatal weak point into encryption for everyone, which then becomes the ultimate high-value target for attackers. Anyone who can determine the secret needed to break the encryption will gain full access, and you can be absolutely sure the backdoor key will leak – whether that’s via intrusion, social engineering, brute-force attacks, or accident. And even if you unilaterally trust your current government to be responsible with the keys to the backdoor, is it wise to unilaterally trust their successors? Computer security is only ever a matter of degree, and the only safe way to keep a secret like this safe is for it not to exist in the first place.”
3
Traceability, according to WhatsApp, is a threat to privacy. The idea of end-to-end encryption, as highlighted in the above statement, is that it ensures that no one, other than the person one is communicating with, can know that a particular message has been sent. Traceability contradicts this very idea and has the potential of creating vulnerabilities with regard to security.
According to WhatsApp, it would:
“…force private companies to collect and store who-said-what and who-shared-what for billions of messages sent each day.”
Meanwhile, Google has told the Delhi High Court that the new rules do not apply to them as the company is a search engine and not a “social media intermediary” like Facebook, Twitter and Instagram. Google further added that:
“Proactive monitoring could have a chilling effect on free speech.”
4
There seems to be no meeting ground between the government and the tech giants. However, what is required from India is the spirit of amiability and accommodation in the interest of better media relations. I would like to reiterate that the 2019 Supreme Court order had cautioned the Centre from doing anything which amounts to invasions of individual privacy.
Analysing the complexities relating to privacy and related issues, the Supreme Court needs to take up the matter in totality and give a final verdict on all related matters of privacy and the law. This is the only way to end confusion and conflicting viewpoints. This will be in the interest of all concerned, including social media outfits and their end users.
June 4, 2021
Handling bureaucracy, Modi style!
It is no secret that Prime Minister Narendra Modi has a mind of his own. He loves his “Yes, PM Modiji” brand of ministers and party persons, and not those who are critical of him and his policies under the BJP-led NDA regime. Under Prime Minister Modi’s outfit, there seems to be much stress on personalised leadership, and little or none on institutions and their functional autonomy.
This has led to a sharp erosion in the effectiveness of vital segments of the state apparatus, the party system, Parliament, bureaucracy, and law & order machinery. It has also given rise to arbitrariness and partisan interventions by favourite political upstarts. Much worse, this has often led to a systematic neglect of public causes and has generated an increasing tendency to treat power as a means of personalized aggrandizement and the state as an instrument of patronage. Against this setting, the fabric of the polity often gets petrified.
I have raised these issues in the light of the Modi government’s show-cause notice to former West Bengal Chief Secretary Alapan Bandyopadhyay under the Disaster Management Act, 2005. This has led to a war of words between the Mamata Banerjee’s All India Trinamool Congress and PM Modi’s BJP.
Alapan Bandyopadhyay is known to be an erudite, competent, intelligent and experienced IAS officer. He was scheduled to retire from service on May 31, 2021. The Centre had accepted the state government’s request for extension of his service under the West Bengal government by three months.
However, the situation took a dramatic turn on May 28, when he was suddenly summoned to New Delhi, hours after he had – along with Chief Minister Mamata Banerjee – skipped a review of Cyclone Yaas with the Prime Minister. Mamata refused to release Bandyopadhyay. She described the Centre’s move as “unconstitutional” and “illegal”. She had, meanwhile, appointed Bandyopadhyay to the post of Chief Advisor to the Chief Minister for a specified period.
Against this backdrop, several former IAS bureaucrats have criticized the Centre’s move against the former West Bengal Chief Secretary. They have questioned the posting of a secretary-level officer by the Centre one day prior to retirement. The joining period for such postings is normally six days plus travelling time. Former Home Secretary Gopal Krishna Pillai is of the view that the Centre’s move sets a bad precedent and would demotivate civil services.
It would be interesting to recall that exactly 10 years ago, Narendra Modi as Chief Minister of Gujarat, had attacked the Congress-led Central government of:
“…usurping law-making powers of the states, misusing investigative agencies, exploiting statutory and constitutional bodies to undercut states and getting Governors to work as political agents.”
5
This is how India’s federal politics is conducted, whichever party might be in power at the Centre. In the present case, the UPA shoe is seen on the BJP-led NDA foot! It is obvious that the BJP-led central government’s action goes against basic principles of federalism. What a shame!
In the prevailing complexities of the system, it is desirable that the Centre needs to call a halt to hostilities directed against Chief Minister Mamata Banerjee regarding the Bandyopadhyay affair. PM Modi must not overlook the fact that Mamata had got a massive mandate from the people of West Bengal in the recent Assembly elections. Is he still sore about her brilliant poll success? Has he forgotten that as Chief Minister of Gujarat, he had insisted that the Centre respect the dignity and autonomy of the State administration? One would have expected Modi to stick to the same principle of cooperative federalism as he had once advocated.
The Centre’s action under the Disaster Management Act was first enforced during pandemic. Such a move against the ex-Bengal Chief Secretary is misplaced and appears to be laced with vindictiveness. Vengeful behavior does not fit in with the profile of a Prime Minister! It is equally regrettable that West Bengal Governor Jagdeep Dhankhar also contributed to the ever deteriorating Modi–Mamata equation with his partisan overreach. He is seen to be acting at the inducement of the BJP-run central establishment.
With 78 MLAs, the BJP has an opportunity to conduct itself as a credible opposition party in the West Bengal Assembly. However, the party seems to be more inclined to needle the Mamata Banerjee regime and make matters difficult for the elected state government.
In this context, Trinamool leader and Rajya Sabha MP Sukhendu Sekhar Roy, has rightly stated:
“The Centre seems to be guided by the logic that might is always right. This development indicates an ulterior motive to not allow the West Bengal government to function properly during a pandemic and post a natural disaster.”
6
This is a disturbing example of BJP-run politics overriding any sense of decency and decorum of federal principles of governance.
Former Finance Minister of Karnataka, M. Y. Ghorpade explains:
“The Centre in a federal structure is like the head of a joint family who inspires sufficient confidence and respect to prevent its members from going astray.”
7
The Modi establishment needs to conduct itself in the spirit of cooperative federalism, in tune with established functional norms of bureaucracy.
June 11, 2021
A meaningful dialogue for Kashmir
Whither Kashmir? Looking at the complexities of the Kashmir issue, it is rather difficult to predict the direction of future events in the Valley twenty months after the Centre ended Jammu and Kashmir’s special constitutional position. It is reported that the Centre is toying with the idea of having a dialogue with the five parties of the Gupkar alliance, headed by National Conference Chairman Dr. Farooq Abdullah. The Gupkar alliance partners met with Jammu and Kashmir People Democratic Party (PDP) Mahbooba Mufti on June 9. After the meeting, Dr. Farooq Abdullah told reporters:
“We have not closed any doors (for talks). If invited, we may look into it.”
The current situation in Kashmir is not as simple as it appears. There are wheels within wheels and one cannot be sure which political wheel moves at whose behest. Ms. Mahbooba Mufti’s position is particularly problematic. Some key functionaries of her party are still behind bars; she would like them to be released before agreeing to any dialogue with the Centre.
The overall Kashmir setting, in fact, has not shown many changes since the August 5, 2019 action by the Centre to abrogate all special provisions of Article 370 of the Constitution. It is no secret that after the Central Government’s action, the BJP leadership tried its best to discredit the traditional leaders of Kashmir and created a new set of leaders. However, their efforts have proved to be futile. This has left the BJP with no option but to go back to the established leaders of the Gupkar alliance.
Some BJP leaders are also said to be in touch with Sajjad Gani Lone of the Jammu and Kashmir’s Peoples Conference’s and Altaf Bukhari, President of the Jammu and Kashmir Apni Party. However, they have a limited political base in the Valley and hence the importance of the Gupkar alliance leaders cannot be ignored. A confidence-building exercise between the regional leaders and the Central leadership will be quite a task; how the political situation in the Valley progresses will depend on the Centre’s new political package for the Union Territory (UT) of Kashmir.
Has the Modi government done its homework in this respect? Unlikely. It has so far tried to assess the attitude of the old political guards of Kashmir. Viewed in this light, the Centre has a long way to go to break the existing political stalemate. First of all, it has to prepare and plan well, and rationally take into account the ground realities in the Valley. New Delhi’s August 5, 2019 action, which ended all special provisions under Article 370 for the Valley, should be reversed; and the primary task of the Central government should be the restoration of statehood for Kashmir. This is a matter of honour and dignity for the people of Kashmir. It is for Prime Minister Narendra Modi to view Kashmir in a larger framework of the Indian Republic and accordingly apply the requisite correctives and salvage complexities of the situation.
Prime Minister Modi’s leadership is being put to a test of history. He ought to act firmly and decisively in the interest of the country and must not his party’s vote bank politics and petty calculations guide and obscure rational thinking required to tackle the problems in the Valley.
The choice is surely grim and Modi needs to appreciate the fact that time does not solve problems. Political will, however, can. For the present, he seems to be guided by lurid partisan political colours. This has thrown questions on the quality of governance and the norms he follows in taking critical decisions on the future of Jammu and Kashmir.
The problem with the country’s ruling elite today is the tendency to work within a rigid framework. In the absence of a broad vision, it becomes difficult for them to see matters beyond today. Most of the existing problems convey their own tragic tales of non-responsiveness and the absence of a serious application of mind to tackle them.
Notwithstanding certain examples of aberrations, India, by and large, has remained a tolerant society. Looking in a larger national perspective, Kashmir is more than a strategic necessity for India. It is a symbol of secularism bound by common history, geography and traditional cultural links. Apart from being part of a Hindu centre of pilgrimage, Kashmir has also nurtured the Sufi tradition of harmony and synthesis. Militancy and Islamic fundamentalism sponsored by Pakistan have upset Kashmir’s traditional heritage.
Be that as it may, Indian Muslims should have as much stake in keeping Kashmir as a part of India as the Hindus. Silence, or the lack of assertiveness, on the part of the Muslims can give wrong signals overseas, whatever their domestic party preference.
Kashmir is not for sale. It is time Kashmiris of all shades of opinions and religious labels appreciate this simple fact. Instead of aiding and abetting the cult of the gun, they ought to obliterate its relevance in the Valley and spare a thought for the thousands of Kashmiri Pandits and Muslims who left their hearths and homes because of the tyranny and suppression of the trigger-happy militants.
Normalcy in the Kashmir Valley has to begin with the creation of proper conditions for the return of the Pandits and other victims of terrorism. Kashmir today demands a new strategy that should prompt the rise of India as a nation to save its integrity, sovereignty and honour from the concerted onslaughts of foreign interests and the enemies within.
It is equally vital to create economic opportunities in the Valley in order to generate better jobs and life for the people of Kashmir. In this onerous task, Gupkar alliance leaders should have equal stakes in creating the right conditions for a new Kashmir we talk about. Dr. Farooq Abdullah seems to have softened his stand for a meaningful dialogue with the Centre on delimitation and related matters, keeping in view the Assembly polls. For this onerous task, what is needed is a confidence-building exercise by Central leaders with regional Kashmir leaders and other key functionaries of the Valley. Over to you, Prime Minister Modi.
June 18, 2021
Delhi High Court sets the pace for citizens’ civil rights
The constitutionally guaranteed right of protest has been restored and is no longer a terrorist activity. This landmark observation by the Delhi High Court’s Bench of Justices Siddharth Mridul and Anup Jairam Bhambhani is most heartening for citizens who, in recent years, have often been politically caught in a draconian legal regime.
The Delhi Hight Court order raises citizens’ basic concerns regarding the Unlawful Activities (Prevention) Act (UAPA) jurisprudence, which can play havoc with their civil liberties. Ostensibly designed to check and address acts of terrorism, UAPA is one of the most abused laws in the country today.
Was this meant to be a deliberate act by the country’s politico-legal masters? Or, does it underline the absence of appropriate application of mind by the powers-that-be to properly assess the question of civil rights and the imperatives of anti-terror laws? Be it as it may, it is clear that citizens have often suffered because of misplaced political and legal calculations.
Terrorism has, no doubt, been a major problem faced by India for decades. It has to be fought tooth and nail and the UAPA provisions are supposed to address terror activities by outside forces, especially from across the border. For fighting terrorism along the Line of Control (LoC) and inside, the country has to make people more effective, apart from ensuring better intelligence and better coordination. It is therefore surprising that the Delhi Police should have invoked the UAPA provisions against activists, including students, who were among those organising protests against the Citizenship (Amendment) Act (CAA). The Police acted against them on the ground that they had also instigated the riots in north-east Delhi.
While granting bail to student activists (Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha), the Delhi High Court recently questioned the chargesheet filed by the Delhi policy in the alleged conspiracy case linked to the riots in north-east Delhi. It said that the charges against the student activists are based on “stretched inferences” and “alarming hyperbolic verbiage”.
Simply put, the honourable judges found no specific or factual allegations against the student activists who took part in the anti-CAA protests. To express disapproval of the CAA publicly was a legitimate activity, and therefore, they could not have been booked under the anti-terror provisions of the UAPA.
The High Curt has rightly said:
“It seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terror activity seems to be getting somewhat blurred.”
It further added:
“If this mindset gains traction, it would be a sad day for democracy.”
Recalling the Supreme Court’s stand, the Bench has referred to Anita Thakur case of 2016 in which the apex court recognised the right to protest as a fundamental right, flowing from Article 19 (1) (b) of the Constitution and said that:
“It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution.”
The High Court pointed out that the apex court has gone beyond upholding the right to protest by emphasising that the State must, in fact, aid the right to assembly of the citizens. Thus, we cannot take away the citizens’ legitimate right to protest on public issues.
The following statement by Delhi High Court comes as a big relief:
“The foundations of our nation stand on surer footing than to be likely shaken by a protest, howsoever vicious, organized by a tribe of college students in the heart of Delhi.”
The Delhi High Court made it clear that terrorist activity cannot include ordinary penal offences. Quoting sections of the UAPA, 1967 and a number of key Supreme Court ruling on terrorism and terror laws, the court has cautioned against the misuse of the Act against individuals in cases that do not necessarily fall under the category of terrorism.
UAPA provisions are known to have been used against tribals in Chhattisgarh, proxy servers in Jammu and Kashmir and journalists in Manipur. According to the Union Home Ministry data, as many as 1,126 cases were registered under UAPA in 2019, marking a 25 percent since 2015.
Referring to the allegations of causing chakka jam8 and delivering inflammatory speeches, the court has said that peaceful and non-violent protests against governmental and parliamentary actions are legitimate; it further added that it was not uncommon for protestors to push the limits permissible in law and that such acts:
“…would yet not amount to commission of a terrorist act or a conspiracy or an act preparatory to the commission of a terrorist act as understood under the UAPA.”
The Court has made it clear that UAPA is meant to deal with terrorist offences. Its verdict clearly draws a pathway forward in the quest for finding a fine balance between citizens’ civil rights and the imperatives of anti-terrorism legislation such as the UAPA. It has underlined that courts can ensure that civil rights are not left entirely at the mercy of the State.
It will now be for the Supreme Court to look at the entire issue in a larger perspective. At stake is the apex court’s reputation as savior of citizens’ basic fundamental rights. It has to live up to its image as an independent judiciary by not allowing the State to play with the citizens’ fundamental rights as enshrined in the Constitution. It needs to strictly scrutinise the case of the Delhi Police on its own terms, keeping in mind the protection of citizens’ civil rights.
June 25, 2021
Ben H. Bagdikian, The U.S. Media: Supermarket or Assembly Line?, Journal of Communication, Volume 35, Issue 3, September 1985, Pages 97–109, https://doi.org/10.1111/j.1460-2466.1985.tb02451.x
https://www.statista.com/statistics/289778/countries-with-the-most-facebook-users/
https://www.verdict.co.uk/end-to-end-encryption/
https://postofasia.com/proactive-monitoring-may-have-chilling-impact-on-free-speech-google/
https://indianexpress.com/article/india/10-yrs-ago-modi-as-cm-had-flagged-upa-threat-federal-shoe-now-on-the-other-foot-7343235/
https://www.thehindu.com/news/national/other-states/tmc-bjp-spar-over-notice-to-former-chief-secy/article34702657.ece
Jaisingh, Hari. Pitfalls of Indian Democracy: Bapu to Anna. S. Chand, 2014.
Road blockade.