By Gautam Bhatia
In Isaac Asimov’s famous Foundation novels, one of the protagonists often explains that “violence is the last refuge of the incompetent”. In India, the fallout of the #MeToo movement has recently re-emphasised what was already well-known: defamation is the first refuge of the powerful. Whether it is M.J. Akbar’s criminal defamation complaint against Priya Ramani, or Alok Nath’s criminal and civil defamation complaints against Vinta Nanda, accusations of sexual harassment have seen a predictable response: the leveraging of criminal defamation law as a way of striking back.
It is trite to say that there must exist a balance between the freedom of expression and the right to reputation. No legal system can allow false and slanderous statements to be made publicly, with impunity. Defamation law is the tool that is used to strike the balance. But it is the shape and the form of defamation law that often determines whether the balance has been struck appropriately, or whether, in the guise of protecting reputation, the freedom of speech and expression has been effectively stifled.
India’s criminal defamation law undoubtedly belongs to the latter category. A colonial relic that was introduced by the British regime to suffocate political criticism, Section 499 of the Indian Penal Code provides an ideal weapon for powerful individuals to silence critical or inconvenient speech. First, unlike many other countries, defamation in India is a criminal offence (and not just a civil wrong), and a conviction entails both social stigma and potential jail time. Second, there is a very low threshold for a prima facie case of defamation to be established by a complainant.
Simply put, he must only show that an “imputation” has been made that could reasonably be interpreted as harming his reputation. This is enough to set the wheels of the law in motion. While an accused has multiple defences open to her — such as demonstrating that her statement was true and in public interest, or that it was an opinion made in good faith, and concerning a public question — these defences are effectively available only after the trial commences. By this time, an accused individual has already been dragged to court multiple times, and must also then go through a long-drawn-out trial process, where the procedure is the punishment.
And third, even the defences open to an accused are insufficiently protective of speech, to an extent that is even less than what civil defamation allows. For example, while in a civil defamation case, a defendant need only show that her statement was true in order to escape liability, in a criminal defamation proceeding, an accused must show that her statement was true and in the public interest. This leads to the paradoxical situation where our legal system is more advantageous towards those at the receiving end of civil defamation proceedings, and harsher towards those who have to go through the criminal process!
All these — and more — arguments were made as recently as 2016, when the constitutionality of criminal defamation was challenged before a two-judge bench of the Supreme Court. Unfortunately, however, they were largely ignored by (the then) Justice Dipak Misra, who simply held that Section 499 was constitutional, as it protected individual reputation. The disproportionality of criminalising what is essentially a civil wrong, and the numerous ways in which the specific structure of Indian criminal defamation law chills and suffocates free expression, was not considered by the court.
It is important to remember, however, that the 2016 challenge to criminal defamation was driven by politicians who — at the best of times — do not make for the most sympathetic of petitioners before a court. Much has changed in the last two years. And perhaps the most significant change has been brought by the #MeToo movement.
It has seen women articulate their experiences of sexual harassment, often at the hands of powerful and well-established men. What is striking about the movement is how it has compelled all of us to confront systematic male behaviour that may sometimes be difficult to define as a legal offence, but which is nonetheless sexually predatory and abusive. Issues involving hierarchies in the workplace, differences in age and influence, the power exercised by men who are highly regarded in their professions and the abuse of that influence — issues that were long suppressed and simply not talked about — have, at last, found public utterance. It is a time of upheaval, when old pieties have been exposed as morally and ethically bankrupt, and old codes of behaviour shown to be exploitative and unacceptable. The #MeToo movement has brought submerged experiences to the surface, and given individuals a fresh vocabulary with which to express what, for all these years, seemed simply inexpressible.
With the filing of the criminal defamation cases, therefore, the stakes have been made clear. Will powerful men be allowed to use the law to silence this new mode of public expression? Will criminal defamation be weaponised to restore the old status quo, and preserve and perpetuate the hierarchies that the #MeToo movement has challenged?
It is the courts that must now confront these questions. And the courts now have a fresh opportunity: this is no longer about an abstract challenging to the constitutionality of criminal defamation, but a live issue about the relationship between our legal system and a social movement aimed at publicly redressing long-standing injustices.
More than 50 years ago, courts in another country were faced with this challenge. In the 1960s, the American civil rights movement found itself under siege: States in the deep south not only violently reacted to the movement, but also filed defamation claims against newspapers, to stop them from covering it. Small factual errors in reports were picked up, and massive defamation suits were filed to harass and bankrupt reporters and newspapers. The New York Times, for example, was found liable for the crippling sum of $50,000, for its coverage of a civil rights protest in Montgomery, Alabama. When these defamation verdicts were challenged before the Supreme Court, therefore, no less than the fate of the civil rights movement was in its hands.
The U.S. Supreme Court responded. In one of the most famous judgments in its history, New York Times Co. v. Sullivan (1964), it substantially modified defamation law to ensure that it could no longer be used as a tool of harassment and blackmail. Articulating a very high threshold of “actual malice”, the court ensured that journalists could go about their job without fear, as long as they did not intentionally or recklessly make outright false statements. Nothing less than this, the court held, was required by the constitutional right to freedom of expression, and a free press.
In 2018, our courts are now faced with a similar situation: a vitally important public movement is threatened by the heavy hand of the law of defamation. And, like the American courts at the time of the civil rights movement, our courts too have a golden opportunity. They may, for one, choose to revisit the constitutionality of criminal defamation. But even without that, there are enough ways to judicially interpret Section 499 to ensure that it no longer remains the tool of the powerful to blackmail, harass, and silence inconvenient speech. Incorporating the Sullivan standard into the law might be a start; but the interpretive possibilities are endless. All that we need is for the courts to understand what is at stake, and respond with the courage and the sensitivity that these times demand of them.
Reliving Faith in modern times
By Amir Suhail Wani
A voice lost to wilderness or the madman’s rubric, any talk of religion, God, metaphysic, values and reality suffers any of two possible consequences. Giving him the advantage of anonymity, a top notch Jamat i Islami scholar pertinently described modern epistemology with all its offsprings as the means and instruments of ensuing and securing a revolt against the God and religion. Never before was civilization so shallow in matters of faith and never before a unanimous and collective onslaught was launched against the sacred, Transcendent and divine. A mere mentions of words like “Divine”, “sacred” or “Transcendent” makes people, experiencing the opiedation of modernism, to rise their eyebrows. Any talk of worlds beyond the sensual is termed as intellectual backlog. World has seen, now and then, people rising, out of their intellectual sincerity or otherwise rising against religion and God. But historically they could never enjoy the status of metanarrative, but were always, by virtue of historical entelechy confined to margins of civilization. In post renaissance era world has succeeded, by and large, in constructing a civilisation and culture with man rather than God as its ontic reference. This man cantered civilization has paved all the possible ways for criticism and demolition of religious meta narrative.
Let’s come to philosophy first. Modern philosophy, starting with Descartian scepticism and evolving through the stages of Positivism, Naturalism, Materialism Nihilism and Existentialism, modern philosophy seems to have ultimately ended up at postmodernism. The possibilities of future development can’t be ignored nor can it be claimed that postmodernism is an all pervasive philosophical trend claiming universal adherence. But the broader picture of things has unfolded thus. Postmodernism maintains incredulity towards metanarrative and has brought with it a host of questions. Traditionally and even up to recent past man seemed to be unanimous on ontic and epistemic stability of things. But with postmodernism not only have been the institutions of religious and traditional impotence held under scrutiny but the very fundamentals of human existence like language, society and all other institutions of human importance have been deprived of their ontic reference and have been made to float freely in abyss of uncertainty. The case with science has been no better. Being a victim of excessive and inordinate empiricism, the Modern day science has surrendered its inquisitive and rational spirit to sheer scienticism.
Ibn Arabi, a classical theorizer of Islamic mysticism noted that “God is a percept, not a concept”. In this single line, the master has resolved an age old question and the problems associated with it. The notion of “conceptual scheme” as it has been adopted unquestionably alike by scientists and philosophers has brought with it an equal number of goods and ills. Man has turned obsessive to reduce everything to his conceptual categories. The human attitude of dividing a problem into subunits, though it has paid heavily in scientific realm, but has simultaneously brought irreconcilable problems in other affairs of human existence. Modern medicine treats biology disentangled from psychology and this piecemeal approach has landed us in an era where we know more and more about less and less. In a sense we know everything about nothing and nothing about everything. Traditionally things were seen associated and entangled in the cosmic Web. Coming back to human methodology of understanding things by dividing them into subcategories and then understanding things in terms of local mental categories has distorted and ruined our understanding of God, sacred and divine. We need to understand that the laws formulated by human mind are refuted within the physical realm itself. Thus the laws obeyed by matter aren’t obeyed by light and the laws applicable to fermions are completely defied by bosons. So within our physical immediacy are instances to cleave apart our ultimate trust in the laws of physics. The unending quest for unified theory in physics might bring further insights in this direction. Thus we need to be careful and watchful to the fact that the laws of matter do not apply to the realm of spirit. Coming back to God who is neither material nor spiritual, neither defined by material boundaries nor circumscribed by contours of space we need to be all the more careful. While we try to understand God in terms of mental categories derived from our physical realm we need to be very cautious that all these categories do not hold true beyond this material universe. Our conceptual schemes, which in the final analysis rest on the categories of mundane material realm are too coarse and inappropriate to conceptualise and theorise the realm of divine, sacred and godhead. At a point where despite all boasting scientific discoveries man is yet incapable of understanding his basic biology and where despite of conquering the vastness of space man is yet to gain a glimpse of his psychological depths any sweeping statements and miscalculated statements oriented towards reduction of divine to categories of psyche seems but a naive affair. The enlightened theologians, mystics and philosophers of the past have explicitly denounced the access of finite human mind to infinite cosmic intelligence. What God has informed us here and there in sacred texts is to contemplate the nature and our own selves. This unbiased contemplation is sure to bring forth some indirect aspects of divine. Though we shall be fully conscious of the fact that within the physical universe and human civilization there are instances which are heartrending, discouraging and at times they run quite contrary to the notion of divine. But the mystics and enlightened men throughout the history have been able to dissect the veil of appearance and have succeeded in looking at the essence of existence. On having this enlightened vision they bowed their heads and understood the essence of these apparent vagaries of nature. Ibrahim, the father of modern monotheism, Buddha a silent contemplator, Nanak, a socially conscious religious purgatory amply demonstrate this state of enlightenment. Modern scientific mind is highly welcome in questioning the authenticity of religion, aspects of divine and the apparent chaos that is witnessed everywhere in physical and social landscape. There can be no proper understanding in absence of questioning. Likewise doubt is an essential ingredient of faith. But while one raises questions in atheist or any such frame one must have patience, tolerance and wide sightedness to understand theistic point of view. To dub religion irrational for its simple disagreement with science seems a rather constricted opinion. Religion has been a great architect in shaping the course of human civilization and to unfasten our knots with this perennial source of wisdom, learning, inspiration and exaltation will amount to gross intellectual injustice. The need of hour is not to posit theists and atheists as antithetical but to encourage each to understand the point of other. Maybe in this collective endeavour humanity discovers a paradigm that has still not been thought of.
(The author is a freelance columnist with bachelors in Electrical Engineering and a student of comparative studies with special interests in Iqbaliyat & mystic thought. He contributes a weekly column for this newspaper that appears every Monday. He can be reached at: [email protected])
Pleasures of poetry
By Shabbir Aariz
Poetry is a refined manifestation of using language artfully, effectively and persuasively. Priest, poet and blacksmith were the three those stood before the King in ancient times. Priest and blacksmith are easily identifiable but how do we describe poet? The Greek and Latin roots of the word “poet” means “creator” describing one who demonstrates great imaginative power, insight or beauty of expression. Therefore, the poet must be more than a writer of pretty words. A poet while writing poetry, the poet means to reach his audience in the deepest part of their being and wants to make them absolutely sure that he knows what he is talking about, because they are able to understand what the poet is saying so clearly. It is unlikely that a poet seeks fame. Ideally he is just seeking one person who understands; who embraces him and acknowledges a secret that they share; a mutual agreement that they are both same. It ought to have a universal appeal. It should not be confined to a particular time or age. It matters little whether a poet had a large audience in his own time. What matters is that there should always be at least a small audience for him in every generation. One has to take the poetry into one’s heart to fan the fire there and then also light one’s own fires. One amuses oneself with the world over which one finds to have been given dominion and trust that poetry will in the same measure help one to understand and explain it. Enshrined in poetry are the pleasures of entertainment as well as the pleasures of value. Entertaining pleasure suggests mirth and relaxation while as pleasures of value indicates information and learning. Amazingly some believe that poetry with a particular social, moral, religious or political message restricts reader’s imagination but T S Eliot holds that poetry always adds more to reader’s knowledge of the subject and sharpens his/her thinking power for that particular area. According to him, the poet utilizes his own language for expressing his people’s feelings and emotions. The twofold duty is thus performed; directly promoting, preserving and improving the language with an indirect duty to his people. There should be no denying of the fact that a poet is a person of extraordinary intellect and observation with a command over human nature that allows him to versify his people’s emotions in poetry. How interesting is the fact that such expression of feelings also enriches the language and keeps it alive for ever. We are well aware that in this part of the world, Urdu language even after stepmother’s treatment, has flourished more because of its excellent treasure of poetry and its worst enemies use it to properly express themselves. One finds it appropriate to mention Khushwant Singh’s observation while he says that if you are in love, you need to understand Urdu poetry and if you want to understand Urdu poetry, you need to fall in love. No doubt the role of poetry is less certain due to distractions. Electronic boom like TV, internet and computer made it less tempting and lesser reading population. Needless to say that earlier reading was a primary activity of the population and poets represented the spiritual guide of the population, who helped reader identify their most internal emotions, intuitions and imaginations. Yet the role remains the same as a century ago. Poet captures the essence of the world and the society in a unique manner and reflects it to be understood by people. He also captures the essence of internal emotions including joy, sadness, fear, hope as well as any other feeling comprehensive real of emotions. Poetry is an art to engage, to influence and to inspire. Poetry, every time has passed the ordeal of understanding the realities of human life to its readers with an infallible test of blameless style. Poetry appears to have remained an effective medium of articulating the concrete realities with an ability to speak forth ideas ever since the creation of the universe and the man along with it. And various poets have attempted to define poetry. Someone has observed, “poetry is when an emotion has found its thought and the thought has found words”. Sigmund Freud says, “poets are masters of us ordinary men, in knowledge of the mind, because they drink at streams which we have not yet made accessible to science”. He further observes, “Everywhere I go I find that a poet has been there before me”. P B Shelly observes, “poetry lifts the veil from the hidden beauty of the world”. While John Keats says “…… a thing which enters into one’s soul…”. Samuel Taylor Coleridge centuries before has held, “…. For poetry is the blossom and fragrancy of all human knowledge, human thoughts, human passions, emotions, language.” All said, the poetry in its ultimate analyses is to call the soldier to war and a lover into the bosom.
(A leading lawyer and eminent poet, author contributes a weekly column. He can be reached at: [email protected])
Fighting the menace of corruption
By Fida Firdous
Recently J&K Governor publically said that behind the fake appointments in JK Bank there seems some back of political people and involvement of corrupted big fish will not be spared. He without wasting further time he sacked Chairman J&K Bank. Half of a month had gone, where is report? Who is investigating the case? What has been done to fake appointment? If this was not just a news stunt or a political posture, then, why action under rules is not initiated against corrupt people? These are some legitimate questions from the desired youth of J&K to be answered?
Governor in his speech said that Kashmir is the victim of politicians and corruption. The statement was widely appreciated and welcomed by all. Without naming any particular political party he denounces any relaxation on corruption belonging to any political party or person.
Pretend to mention here, why the system is corrupted? Who makes us corrupted? And what are the consequences of corruption? I’m not writing an essay but revealing what I have witnessed. Let’s talk about home? J&K is among the most corrupted states in India a study of Centre for Media Studies (CMS) in its annual corruption study – CMS 2017- has placed Jammu and Kashmir among top corrupted states.
Answers of these questions are simple, “helplessness” of giver before the corrupted system. There is evidence that corruption at the top of a bureaucratic system increases corruption at lower levels. Manipulating the social and political environment.
Paradoxically, increased corruption in JK has increased the level of frustration in the young competent youth. This is not evident in jobs only, but other sections as well. There is a well phenomenon that giving and getting bribe both is corruption. But this phenomenon is administrative in practical. Until transparent system will not be enforced by the government organs to eliminate corruption. The giver and taker will no longer be active in malpractice. So, primary duty of eliminating corruption depends on government organs.
Unemployment is the outcome of corruption. The consequence is deviation of youth and addiction of drugs and involvement in unlawful activities. Youth which is called backbone of a developing country like India and in the conflicted state like JK has its worst results seen so far.
Today if you are worth competent, merit holder and lacking approach you are at ground zero. For giving bribe you need a political or bureaucratic approach, Agents of corruption. Those who don’t fall under such category will fall prey and sick. What approach means? It doesn’t mean a transparent approach for promising justice, no, not at all. Here it means something else. My simple words may heart some of the persons who are involved in the recent backdoor appointment through political approach and get jobs in JK Bank being incompetent and undesirable that marred the merit of desirable ones. That is why I failed to qualify interviews many times due to the notorious and corrupted system.
Giving job to undesirable person for being a voter or supporter for political gain and use them for propaganda is a bumpy idea. This can’t be the subtlety of politics. Does it mean after pursuing PhD I should follow illiterate politicians for adjustment? Bear me it happens in my home, where an educated person becomes the political bedfellows for getting a job. They are habitually now? They are in a mess of materialistic world where aspirations of the desired candidates are not delivered properly. At this point of time they become the victim in hands of influential ones or bribers. In a way society is dying. Young youth getting frustrated. Those who facade corruptions are agents of evil.
Don’t take it simple. It is a curse. A curse like cancer. Frustration is due for a postgraduate unemployment youth looking a 10th class person’s in job without any merit. It notionally has bad impact on our society. Further, the more corruption, the slower the economic growth. One of the worse consequences of the corruption is to produce incompetent society. Developed countries are mainly depends upon the competent people, and developing country like India or Kashmir, incorporated incompetent people either by bribe or influence, this incompetency can never contribute to our society. Hence we are thousand years back then the developing countries.
No doubt, corruption is inevitable fact of human civilization. It is the malaise attached to the largest democracy of the world that is India. From getting a job to IAY facility or to any legal case nothing goes without giving a bribe. But it is actually we people who are promoting it; we gave bribe to skip the queues to get driving license without giving any test. There are thousands of cases (files) pending rounding from table to table in our highest office civil secretariat from years reasons best known to everyone. The disposal of our work culture is corrupted.
Corruption in J&K has becomes a national security threat. We can’t stop it, but there are ways to reduce it. It starts with the government but it includes everyone from lowliest to the highest. In short corruption has to eliminate somewhere and it stops at the ballot box and it stops in the home. Politicians are well aware about this fact, but they are not ready to take any lesson from the pages of history. PV Narasimha Roa is the worst example that history has ever met.
J&K Anti-corruption Bureau, J&K State Vigilance Commission and other agencies must eliminate corruption at a point that it doesn’t affect the whole society in a bad way. An honest man must believe in honesty, everyone is not corrupt. Coordination of young educated youth towards corruption should be voluntary and open. (The writer cam be reached at: [email protected])