Yesterday when I wrote the article saying that Arun Jaitley sending the notice to the blogger Prashant Panday was a good thing, I came across a couple of immediate condemnations regarding how Barkha Dutt got criticized for the same. It is hardly a new thing for the distinctions between free speech and slander to be erased in an attempt to defend favorites and I find myself in a lonely battle making all kinds of distinctions that perhaps we as a country are not ready for.
This post is not about the law. I'm neither a lawyer nor a judge. This post is about my interest in seeing freedoms upheld as well as accountability. And I think Arun Jaitley sending a notice to Prashant Panday cannot simply be bundled with Barkha Dutt sending notice to Chetan Kunte and one "good" or "bad" be applied to both. I don't think the law pulls such stunts either, considering that we continue to try cases individually.
There is a school of thought that appears to think that if accountability for his words can be expected from Prashant Panday, then why not from Chetan Kunte. Well, I suppose if the issue is of suing for defamation. anyone can send a notice to anyone. In fact, I don't even believe anything bad needs to have been said. If you want to send a notice, your sanity might be under question if you send it without reason, but no one is going to dispute your "right" to send it. So let us get that out of the way. Legally, I suppose both the cases are "equal" and whoever was here to only be reassured of that can quit reading at this point.
That said, I am not sure having an opinion on a person's actions rather than claiming facts is defamation. Which is essentially what Chetan Kunte had done in his article titled "Shoddy Journalism". To quote the beautiful wikileaks who preserved the statement he was forced to publish on the blog, if not the original post, he was specifically taking back the following:
- * a lack of ethics, responsibility and professionalism by Ms. Dutt and NDTV Limited;
- * that Ms. Dutt and NDTV's reporting at the scene of the Mumbai attacks during November 2008, resulted in jeopardizing the safety and lives of civilians and / or security personnel caught up in and / or involved in defending against the attacks in Mumbai in November 2008;
- * that Ms. Dutt was responsible for the death of Indian Servicemen during the Kargil Conflict.
This, being extremely specific quotes in lawereese, I assume came from the notice that told him exactly how he could get rid of the monster threat riding his back by publishing what he was told.
Now here is the interesting thing. I have no idea how Barkha Dutt and NDTV are certain the terrorists and Pakistan Army did NOT get information that allowed them to target Indian forces from either "Ms Dutt" or "NDTV Limited". It would hardly be the first time criminals used news coverage for information. Even if care was taken, Kunte is unlikely to have known that (nor has any media management to prevent information leaks in initial period been claimed, even in hindsight), so what Kunte published, he still published believing it to be true.
This cannot be called defamation. It is commentary and criticism of security risk. He saw TV and thought he was getting information that was sensitive and wrote that and criticized what he saw as a lack of judgment. I will concede that it is highly unlikely that Barkha Dutt or NDTV *wanted* to jeopardize anyone. But one cannot say what the terrorists used for information or how they interpreted it to declare so confidently that the reporting did not result in intel either.
With this logic, NDTV should not run talk shows that have people claiming that someone is guilty of something at all. This would probably include not criticizing the government, not calling Modi responsible for deaths in Gujarat and God only knows what else. So clearly there is a standard being applied specifically to the hapless blogger that they do not follow themselves. Even standard disclaimers of opinions not belonging to the channel would not make sense, since clearly the channel saw fit to broadcast them to millions of viewers - a call the speaker did not make. And channels officially cross lines too. For sensation (translates to money). For example:
In a far more serious accusation, Afzal Guru's lawyer famously wrote to NDTV:
"Your repeated news bulletins over two days reduced the issue of the hanging of Afzal and his Mercy Petition pending with the President to a very simplistic solution "Show repeatedly the video tape (an unlawful piece of evidence) of the alleged confession of Afzal recorded in police custody as breaking news, convince the viewers that it has brought out the ultimate truth, ask them to send SMS messages to NDTV conveying their opinions about the "—Phansi" (hanging) of Afzal, and then pour out the "—collective opinion" gathered in this manner to pave the way for the prompt hanging of Afzal."What a simple, quick solution of an issue involving the life and death of a citizen!"
This could actually have lost a man his life by mobilizing a lynch mob of opinion that made hanging him a security and political survival requirement rather than the merit of his petition. The tape that was broadcast was set aside by the court. Afzal Guru is on record saying that he was made to say those things by the police under threat to his family. It cannot be called a requirement of reporting, since the news was the petition and not evidence that the court had rejected. Nor could years old footage be called "news". And it was a completely deliberate set of actions aimed at influencing the result. Can't be called "collecting public opinion" if the information fed to them before they state their opinion has been struck down by the court.
Note: This is an example of how defamation with very serious consequences can look like. To have a problem with Afzal Guru, go to an older article and argue there.
To stretch the issue still further, Chetan Kunte was a nobody with a reach of maybe a few hundred people. Off the top of my head, I can think of several people whose words reach millions who have not pulled punches criticizing Barkha Dutt including some far more serious allegations related with what became troll fodder as "Barkhagate". I do not wish to reproduce them here, because the point here is not listing out criticism of Barkha Dutt, only saying that it exists and in my view, Chetan Kunte was an easy target to string up as an example.
The price he paid? His entire blog is gone. Fear. To get into legal confrontation with a top media personality and channel was likely way beyond his reach.
But going beyond all that, to some views on censorship and equality...
In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.
~ Anatole France
The law may be equal for all, but the very nature of it can be discriminatory and being written by powerful people, is usually more sensitive to their problems and insensitive to the problems of those who were not involved in the writing of the laws. For example, if you had a law against owning more than two cars, you wouldn't have too many poor people violating it.
I think it works on an intellectual level too. In a country where education does not even passingly touch important intellectual skills like logical reasoning or distinguishing between fact and opinion, there are very few with the skills to be compliant with the fine line between criticism and defamation. I would channel Katju here for a minute and claim that less than one percent of people actually have the ability to analyze and articulate themselves with the precision that can express themselves without doing wrong to another with refined nuance.
And the 99% who cannot include highly educated people and politicians too. Which is how rape after rape has people seemingly blaming women for it, when reading their words carefully makes an empathetic person realize that they are raising concerns about the inherent exploitation in the evolving stereotype of modern beauty that has women at risk because of catering to the male gaze in a highly normalized sexual objectification. They have no expression for it beyond describing the clothes, which is too broad and mangles the subject beyond sanity, but they are people who have seen it from close and they understand the danger, which has top policemen, teachers, politicians and parents ignoring all precedents of ridicule to voice it anyway.
It is no different with blogs. Boggers, tweeters... they feel. They write. They may not always have the refinement that is desirable, but in my view, inaccurate expression beats silence by a wide margin. It is primitive, undifferentiated, block like thinking that says all people who don't support X are supporters of Y. It is plain illogical to believe that everyone who agrees with us is noble and there is some evil entity going around paying people to disagree with us. Whatever. It is most certainly insulting to be called a slut for having a political view. At the same time, to make it more than it is - unrefined, clumsy expression - to me is discrimination, because there are few with the life experiences that would have brought them refinement in a world of institutionalized stupidity. To me, targeting the wrongs of their expressions while ignoring the concerns they are voicing is a bit like not hiring a low caste person for his looks or accent.
To expect the same refinement from anyone with an internet connection that frankly journaists don't always achieve in spite of it being a professional requirement, is plain discrimination, though the law will support suing anyone by strict standards. A line comes to mind from some romance nove i read:
Just because you can, doesn't mean you should.
On the other hand, it is also true that public figures, figures who introduce ideas that disturb, because they are new or cause us to question ourselves, people who take responsibility for collectives and cannot accommodate every interest.... such people also suffer extraordinary hostility expressed as criticism, accusation or slander. And surely they cannot be expected to be superhuman enough to always live thinking about the larger picture and never give in to the simple need to hit back in irritation or defense.
It is not a monolith. I think it is a world of conversations. The more we have, the better it is for us all. The less we attempt to overpower, the more diversity can thrive.
But then, that is my opinion.
It is also my opinion that everyone has the right to act with the freedoms available to them, and if such a freedom means that justice to the wrong experienced to the self needs a notice, so be it.
If you were reading with the expectation of "one right answer", sorry, but I don't have one.