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COVAI MUSINGSJune 28, 2016

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Barring Women From Religious Spaces Like Haji Ali Is Against Fundamental RightsRestricting women’s entry into religious spaces is not only against the principle of equality, as enshrined in the Indian Constitution, but also acts as a barrier to their socio-cultural development.

Haji Ali Dargah’s inner sanctum was closed to women in 2012

Dr Noorjehan Safia Niaz has paid respects at the famous Haji Ali Dargah in Mumbai since her childhood. With a separate entry to the sanctum for women, she had never faced any restrictions until 2012, when on visiting the grave of the saint she was met with the steel barricade that prevented the entry of women devotees into the inner sanctum of the Dargah.

The Haji Ali Dargah gets visitors from all over the world and is revered by people of all religions. Upon being restricted from the inner sanctum and after exhausting all possible means of an amicable solution to their request for allowing re-entry, Niaz along with Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan (Indian Muslim women’s movement), filed a public interest litigation (PIL) with the Bombay high court requesting entry of women into the sanctum sanctorum, as had always been allowed.

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The PIL clearly states how the two tried to have a dialogue with the trustees through letters. They had arranged a meeting with the intervention of the state minorities development department, which was not attended by the trustees.

In July 2012, while meeting the president of the trust, the petitioners were told that the decision was taken keeping in mind the safety of women who are not careful about their ‘Pallus’ (end of the saree that falls on the shoulder) while visiting the Dargah, and also because the Shariah did not allow the entry of women into the inner sanctum. A similar statement came from religious leader SHANKARACHARYA SWAROOPANAND earlier this year, when he said that the entry of women into the inner sanctum of the SHANI SHINGNAPUR temple in Maharashtra would result in more rapes. This comment came just a few days after the temple opened its gates to women to pray at the inner sanctum. The trustees of the temple, who earlier denied entry of women into the inner sanctum, granted them to enter and pray at the sanctum, following orders of the Bombay high court, that ruled it was the fundamental duty of the state to protect the fundamental rights of women. Thus, upholding women’s rights to worship, and to enter a temple, like her male counterpart.

“The Dargah was constructed in 1431 and the trust was registered in 1916. With an increase in restricting rights of women in every possible sphere, it is no surprise that the trust decided to open its eyes to Shariah law only in 2012. This restriction goes against the concept of equality as enshrined in the Constitution as well as against the Quranic injunctions on the same, and many Hadiths,” said Soman. The PIL also evoked India’s commitment to international human rights law, being a signatory to the Convention on the Elimination of all Forms of Discrimination Against Women among others in upholding gender justice and human rights of women.

Both of them in the petition clearly brought out how women’s fundamental right to equality as well as right to religion was being violated by the arbitrary and unreasonable conduct of the trustees. Additionally, it also stated that out of 19 Dargahs surveyed by Soman, Niaz and other activists, more than 50% (12) allowed women to access the inner sanctum. Soman and Niaz also emphasised on the fact that they were aware of the widespread discrimination against women at several other places of worship, across religious lines, but they chose this particular case to represent gender discrimination, as they were personally affected by it.



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Restricting women’s entry into public spaces, especially religious spaces, is unique to India and its South Asian neighbours.

On the one hand, women’s rights are curbed in the name of maintaining status quo and on the other, they are looked upon as sole flag bearers of community identity, often finding themselves trapped between either being loyal to their religious identity or working towards their desire to claim equal rights and freedom, both within and outside of the community. The two, however, can co-exist and there need not always be a tussle. In Islam, for instance, although women are not restricted from entering mosques, provided there is a separate space for them for prayers, barring a handful, most mosques in India do not allow women and are solely visited by men with no arrangements for women to offer prayers, even on festivals like Eid. Mosques in South East Asian countries like Thailand, or even in the West like many in London have women devotees praying in a separate spaces created for them. I personally have offered my prayers in different mosques, in both the countries, on many occasions. “In restricting entry to religious spaces among others, women’s ability to interact, move around and be involved in the social life of the community beyond the four walls of their homes is also curbed,” said Niaz.

With the judgment on the petition due on June 28, one can only hope that equality and equal access to places of worship prevails and women, from all walks and all religions are once again allowed to pay their respects to the saints, on their own will, like they had been for hundreds of years.

How Did India End Up With Over 36,000 Colleges? BY THOMAS MANUEL Since 2003, India has been adding more than 1,000 colleges a year. The peak was the period between 2007 and 2009, when the country added 7,206 colleges, about one-fifth of the total number.

In 2010, the Ministry of Human Resource Development (MHRD) constituted a task force to achieve the impossible – a national survey that would for the first time give the government a sense of India’s large, blundering education behemoth.



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The Presidency College building, ChennaiThe initiative was called the All India Survey on Higher Education (AISHE) and, like western civilisation, it was a good idea. Due to typically governmental reasons, the AISHE was made a voluntary exercise – no educational institution would be mandated to provide information to the surveying team. Getting a behemoth to do what you want is hard enough if you have a big stick but when all you have is an exam pad and the ability to say please, the feat becomes pretty much impossible.

And yet the AISHE has been going from strength to strength since its inception, and early this year, it opened up its data for the first time. It’s a diamond – albeit a flawed one. Before, we had been able to analyse universities, INIs, medical colleges and engineering colleges – each time relying on apex bodies like the UGC, the MCI and the AICTE – but there was never a hope of getting any insight into the roughly 36000 colleges that speckle the Indian landscape. Until now, of course!

Colleges form the basic building block of the higher education behemoth – they are its cells. They are where the young and the hopeful flock in search of a better life. And for a long time, we didn’t even know how many there were. We still don’t have a completely accurate number but the government never does so we’ll have to make do.

The most recent dataset from 2014, which we’ve used for all the forthcoming analysis, contains 34,000+ colleges. We plotted the approximate lat-long values of 32,500 colleges for the visualisation below.



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How to use the map above: The box on the left gives a cumulative count, a count for the particular year and a break-down by category for the year. On the right, the line graph shows the shifting scale of the education sector as India grows decade by decade. On the top right, there are options to switch between only an outline of India or the default base map layer. You can also toggle the heat map and the points on and off, depending on what you want to see. The map starts from 1947 but you can go further back if that interests you.

It becomes clear from the above data (and how slow and heavy it gets towards the end), that India’s education sector looks phenomenally different after 2000. Since 2003, India has been adding more than 1,000 colleges per year. The peak was the period between 2007 and 2009, when the country added 7,206 colleges, about one-fifth of the total number. Do play around with the visualisation and see what patterns you can find.

As per the latest data, 59% of colleges were located in rural areas. Himachal Pradesh, Kerala, Tamil Nadu and Uttar Pradesh had more than 75% of their colleges in rural areas. Madhya Pradesh, Mizoram, Meghalaya and Nagaland had more than 50% of its colleges in urban areas.



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About 12% of colleges were classified as autonomous, making them less beholden to their affiliating university in terms of curriculum among other things. In Delhi and Himachal Pradesh, almost 30% were autonomous, much higher than the national average. Telangana, Arunachal Pradesh, Nagaland and Sikkim had almost no autonomous colleges.

THE STATES

India’s federal structure means that there are always no two states that are truly alike. Our university analysis earlier already showed how the five southern states of Andhra Pradesh, Telangana, Karnataka, Kerala and Tamil Nadu dominated a lot of the statistics. A similar trend can be seen with colleges.

Despite having the most colleges by number, when looking at that number per lakh population, Uttar Pradesh comes below the national average. Jharkhand and Bihar come last with less than one college per lakh population.



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When looking at this data on a map, the negative bias towards the eastern states becomes clear.



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When looking at the line graph in the interactive map and timeline, the scale of growth of the education behemoth becomes apparent. Post-2000, that’s when things go into hyper drive. Certain states bear that out very well.

Please note that the scales are different for each graph. That’s usually a big no-no in data visualisation but I did it to show the similarity across all states in terms of a relative boom after 2000. Some states like Maharashtra, Rajasthan and Karnataka had approximately 350 colleges setup in one year which means almost one college every day! UP had 490 new colleges sprout in 2014, making it more than one college per day. But while the post-2000 boom is obvious in many states, a few of them differ drastically.



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Assam and Bihar had tepid growth post-2000 compared to some earlier decades. Assam added 140 colleges over the 1990s, which seems to be its best period in this sense. Bihar’s high growth years seem to be in the 1970s and early 1980s. Why weren’t these states participating in the national boom?

To compare one state’s growth with another, use the following comparison tool.

STATUTORY BODIES

Every college, based on the courses it teaches, comes under regulation by a statutory body charged with its oversight. Arts and Sciences colleges typically come under direct oversight of the University Grants Commission (UGC). Engineering and management is the purview of the All India Council for Technical Education (AICTE). Law, medicine, architecture – they all have their own councils. But these are the usual suspects – the first names that come to your mind when you ponder over the betrayal that is higher education. But did you know that there are 5032 colleges affiliated to the National Council for Teacher Education? That’s more than engineering and management put together.



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On the opposite end of the spectrum, the data shows National Council for Hotel Management and Catering Technology overseeing only 26 colleges. This is despite that a cursory search of the phrase ‘hotel management’ yields 93 colleges, more than half of which list the UGC or AICTE as their overseeing bodies.

The AICTE does have a constituent board called All India Board of Hospitality and Tourism Management but what separate purposes these boards have is not clear.

India’s mandarins also saw fit to have two separate councils under the Ministry of AYUSH – the Central Council of Homeopathy, in charge of homeopathy, and Central Council of Indian Medicine, which looks after Ayurveda, Unani and Siddha.



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Fun fact: The Ministry of AYUSH also has seven research councils, namely the Central Council for Research in Ayurvedic Sciences, Central Council for Research in Siddha, Central Council for Research in Unani Medicine, Central Council for Research in Homoeopathy, Central Council for Research in Yoga and Naturopathy, Pharmacopoeial Laboratory for Indian Medicine and Homoeopathic Pharmacopoeia Laboratory.

SO MANY RESEARCH COUNCILS, SO LITTLE RESEARCH

We already wrote about medical colleges and the Medical Council of India (MCI) previously using data from the MCI’s website which referenced 370 recognised medical colleges versus only 318 that appear in the AISHE database. 52 missing colleges has the potential to invalidate any learning on medical education from the AISHE data.

Some colleges listed more than one statutory body. Sri Annamalaiyar College of Paramedical Sciences in Tamil Nadu helpfully claimed to be under the oversight of every single statutory body. Tara Vivek College in Punjab meanwhile settled for only the first nine bodies.

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Compiled, Edited and Circulated by P. MADHUSUDANSeven different management types are listed in the AISHE data – central and state government, local body, university, private aided and private unaided. Government-owned colleges are obviously funded by grants from the government. Similarly, private aided colleges are owned by private parties but regularly receive maintenance grants from the government. Typically, the aid comes with restrictions such as subsidising fees till they reach government-owned college levels and so on.

The university option seems to imply that these colleges are simply constituent colleges or alternate campuses created by recognised universities. Example: St. Stephen’s or Miranda House under Delhi University are constituent colleges; the University of Madras has campuses outside the city of Chennai.

Some 7% of all colleges seem to be managed by a local body, which according to the AISHE report includes “Panchayats (as defined in Art 243 read with 243 B of the Constitution), Municipalities (as defined in Article 243 P read with 243 Q of the Constitution), cantonment boards, town-area committees and any other bodies of the local self government constituted under a law”.



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As a national pattern, most states see a roughly even divide between private aided and state government colleges. But in a few states, a bias towards one of these forms is clearly visible.



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Maharashtra has a clear pattern – it prefers to give grants to privately-owned colleges rather than be responsible for them entirely. Odisha has a similar but less pronounced bias. Chhatisgarh and Assam operate in the reverse. The state operates a large number of colleges and gives out relatively few grants, especially in the case of Assam.

One interesting anomaly came in 2007, the year Karnataka added 346 colleges. The anomaly is that out of these 346 colleges, 166 were started by the state government. This means the government was starting a new college once every two days or so. The huge boom in education has been primarily a private sector boom and there is no other instance of a government taking the initiative to increase capacity at this scale.

This post focuses on only a small part of the information available for analysis. In forthcoming posts, we will be exploring other facets of the AISHE data, combining and clarifying it using the data we’ve collected from other sources and explored previously.



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Compiled, Edited and Circulated by P. MADHUSUDANWe Complain About Brain Drain, But Are Indian Universities Prepared to Gain Brains?

So should we stay here or go abroad like everyone else?

Indian academia has for the past several decades suffered from brain drain and continues to lose smart and hard-working academics to universities and research centres in North America, Europe, rest of Asia and elsewhere. According to a recent report from the National Science Foundation’s National Centre for Science and Engineering Statistics (NCSES), India has continued its trend of being the top country of birth for immigrant scientists and engineers, with 950,000 out of Asia’s total 2.96 million. More worryingly, these numbers show an 85% increase over the last decade. Similarly, according to an OECD report, highly educated Indians are the fastest growing set of emigrants to OECD countries.

Brain drain is pronounced in areas other than the sciences and engineering. For example, there is no head count of Indian economists who work abroad but we do know that they are many. Recently, the Indian government itself recruited its top economic decision-makers – Kaushik Basu (Chief Economic Adviser under Prime Minister Manmohan Singh), Raghuram Rajan (formerly Chief Economic Adviser and now Governor, RBI), Arvind Subramanian (the current Chief Economic Adviser) and Arvind Panagariya (Vice-Chairperson, NITI Aayog) – out of American institutions.

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Compiled, Edited and Circulated by P. MADHUSUDANThere have also been reports of brain gain with many Indians returning from abroad to work at academic institutions in the country. Unfortunately, there appear to be no reliable estimates on how much brain gain is actually taking place.

During his recent visit to the US, Prime Minister Narendra Modi took up the issue and attempted to reframe it:

What people see as a brain drain, I see as a “brain deposit.” And this brain that we have put on deposit is looking for opportunities, and the day it finds an opportunity, this brain is going to be used for the benefit of Mother India with interest.

There are claims that there is “a healthy two-way flow of talent“ to and from India but, even in the absence of reasonable estimates, it’s quite evident that the current rate of brain gain is not significant in terms of numbers and/or impact to negate the large outflow of skilled Indians to Western countries and elsewhere. Further, it matters very much if India is able to retain those who return.

Several obvious and less-obvious factors which drive out academics who return to India within a few years or even sooner can be identified. The reasons don’t usually have to do with salaries since, unlike entrepreneurs, who often return to take advantage of India’s growing economy, academics know well that the compensation for teachers and researchers is fixed.

WHY DON’T FOREIGN-RETURNED PROFESSORS STAY?

There are two variables that determine India’s inability to retain academics: the readiness and willingness of academic institutions, and those who are part of them, including faculty, students and administrators, to absorb ‘outsiders’. Of course, this still leaves out other factors which influence people’s decisions to stay on or leave: living conditions in different parts of the country, personal/family reasons, political and social turmoil, etc.

The readiness refers to factors like infrastructure, whether libraries or laboratories; availability of research funding; the abilities of faculty, students and administrators; and the governance of higher education institutions – factors that make the transition worth the time. And they’re relatively the more obvious parameters that returnees bother with. However, the quality of faculty and students also matters a lot. The best teachers and researchers (and not just those who return from abroad) value the overall academic environment at an institution of which the faculty and students are an integral part.



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Compiled, Edited and Circulated by P. MADHUSUDANThe willingness refers to attitudes displayed toward outsiders at India’s universities by its administrators.

An Indian institution may be approximately comparable in some ways to the best in Asia or elsewhere in terms of infrastructure or salaries but an equally-important issue is whether it is sufficiently accommodating toward outsiders. It’s not uncommon to find that those returning from abroad with PhDs and/or work experience are either deliberately marginalised or excessively celebrated. Such extreme attitudes and reactions can be deeply unsettling for those who return. At the same time, it’s also not uncommon to see foreign-returned academics who are treated favourably at their respective institutions to misuse their exalted status to engage in the very same kinds of silly and serious misdemeanours as others. In most cases, however, foreign-returned professors tend to be treated somewhat harshly with their colleagues and university administrators determined to show them their proper place in the hierarchy.

INDIAN UNIVERSITIES ARE NEITHER READY NOR WILLING

On the readiness front, it’s beyond doubt and debate that most of our universities and other academic institutions are badly run most of the time. As a result, an overall “culture of mediocrity” has become the norm rather than an exception. Denial is an important part of this culture. Recently, Smriti Irani, the Union Minister of Human Resource Development, chose to extol the research performance of India’s universities rather than acknowledge it as a problem area:

A lot of hue and cry is raised about our higher education institutes not figuring in global ranking. The reason is not lack of high quality research work but the fact that in India, a large section of research work is done in vernacular languages, whereas global rankings only consider research in English.

The problems with readiness begin at the very top. Most appointees to positions of vice-chancellors, principals and directors are not those who are best qualified to run academic institutions but those who enjoy the confidence of the government in power. This, along with other deficiencies – whether poor infrastructure or incessant delays in processing all kinds of research-related administrative decisions and financial transactions – creates working conditions that are quite frustrating for outsiders and prompt them to seek other options in the country or abroad. On some rare occasions, when an effective administrator takes charge at the top, things do turn around but almost everything reverts to normal once the term of that vice-chancellor or director expires. As a result, many of our academic institutions are not quite ready to gain brains.



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Compiled, Edited and Circulated by P. MADHUSUDANThere are big problems regarding willingness to gain brains as well. Most university leaders, deans, heads of departments and faculty members don’t care much about the institutions they belong to and even less about gaining brains, whether from abroad or from within the country.

Their primary concern is to maximise their personal fortunes, usually by seeking and securing administrative positions at the university that allow them to flaunt their power; the wellbeing of the institution is irrelevant. University babus as well as most faculty members tend to be biased or deliberately indifferent toward outsiders and more generally toward those who appear to be committed to doing their job of teaching and research.

At the least, they demand that ordinary faculty members observe and subscribe to the same culture of subservience as them. Those who do not are made to suffer from everyday harassment of different kinds.

BLAME THOSE WHO RETURN

It would be unfair, however, to post all the blame on the doors of India’s academic institutions and its peoples.

Many of those who return, after studying and/or working at universities in the West or at better ones in Asia, develop unrealistic expectations about life and work at India’s academic institutions. Subsequently, they fail to adjust or readjust to working under ‘Indian conditions’ and become sufficiently frustrated and disillusioned to quit. Others return because they buy into exaggerated reports on how much India has changed, including its higher education sector.

They leave after discovering that ministers, bureaucrats and university leaders and others often say the right things but, like in the past, they seldom do those things. In short, they discover that not enough has changed, certainly not at our universities. Finally, in many cases, as mentioned earlier, foreign-returned academics adjust all too well to Indian conditions and become exactly like those whom they despised from afar as incompetent and unsuitable for the academic profession.

Pushkar is an assistant professor at the Department of Humanities and Social Sciences, BITS Pilani-Goa.



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Madras University

Criminal Defamation and the Supreme Court’s Loss of

Reputation

The Supreme Court of IndiaThe Supreme Court’s refusal, in Subramanian Swamy v. Union of India, to strike down the anachronistic colonial offence of criminal defamation is wrong. Criminalising defamation serves no legitimate public purpose; the vehicle of criminalisation – sections 499 and 500 of the Indian Penal Code, 1860 (IPC) – is unconstitutional; and the court’s reasoning is woolly at best.



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Compiled, Edited and Circulated by P. MADHUSUDANPolitics and censorship

Two kinds of defamation actions have emerged to capture popular attention. First, political interests have adopted defamation law to settle scores and engage in performative posturing for their constituents. And, second, powerful entities such as large corporations have exploited weaknesses in defamation law to threaten, harass, and intimidate journalists and critics.

The former phenomenon is not new. Colonial India saw an explosion of litigation as traditional legal structures were swept away and native disputes successfully migrated to the colonial courts. These included politically-motivated defamation actions that had little to do with protecting reputations. In fact, defamation litigation has long become an extension of politics, in many cases a new front for political manoeuvring.

The latter type of defamation action is far more sinister. Powerful elites, both individuals and

corporations, have cynically misused the law of defamation to silence criticism and chill the free press. By filing excessive and often unfounded complaints that are dispersed across the country, which threaten journalists with imprisonment, powerful elites frighten journalists into submission and vindictively hound those who refuse to back down. Such actions are called Strategic Lawsuits against Public Participation (SLAPPs) which Rajeev Dhavan warns have created a new system of censorship.

Petitions and politicians

Defamation originates from the concept of scandalum magnatum – the slander of great men – which protected the reputations of aristocrats. The crime was linked to sedition, so insulting a lord was akin to treason. In today’s neo-feudal India, political leaders are contemporary aristocrats. Investigating them can invite devastating consequences, even death. Most of the time, they retaliate through defamation law. Since the criminal justice system is most compromised at its base, where the police and magistrates directly interact with people, the misuse of criminal defamation law hurts ordinary citizens.



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This is different from politicians prosecuting each other since they rarely, if ever, suffer punishment.

Of all the petitions before the Supreme Court concerning the decriminalisation of defamation, the three that received the most news coverage were those of Subramanian Swamy, Rahul Gandhi, and Arvind Kejriwal. They are all politicians, their petitions were made in response to defamation complaints filed by rival politicians. On the other hand, there are numerous cases whichpoliticians have filed against private members of civil society to silence them. When presented with these concerns, the Supreme Court simply failed to seriously engage with them.

The architecture of defamation

Defamation has many species, a convoluted history, and complex defences. Defamation can be committed by the spoken word, which is slander, or the written word, which is libel. The historical distinction between these two modes of defamation is based on the permanence of written words. Before the invention of the printing press, the law was chiefly concerned with slander. But as written ideas proliferated through mass publication technologies, libel came to be viewed as more malevolent and the law visited serious punishments on writers and publishers.

Such a distinction presumes a literate readership. In largely illiterate societies, the spoken word was more potent.

This is why films and radio have long attracted censorship and state control in India. Before mass publishing forked defamation into libel and slander, there existed only the historical crime of libel. Historical libel had four species: seditious libel, blasphemous libel, obscene libel, and defamatory libel.

Seditious libel, which has been repealed in Britain, prospers in India as the offence of sedition which is criminalised bysection 124A of the IPC. Blasphemous libel, repealed in Britain, fares well in India as the offence of blasphemy undersection 295A of the IPC. Obscene libel, as the offence of obscenity, is criminalised by section 294 of the IPC. And defamatory libel, repealed in Britain, which is the offence of criminal defamation that the Subramanian Swamy case upheld, continues to exist under section 499 of the IPC.



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Compiled, Edited and Circulated by P. MADHUSUDANConfusing harms

Of the many errors that litter the Supreme Court’s May 13, 2016 judgment in the Subramanian Swamy case, perhaps the most egregious is the failure to recognise the harm that criminal defamation poses to a healthy civil society in a free democracy. At the crux of this mistake is the Supreme Court’s failure to distinguish between private injury and social harm. Two people may, in their private capacities, litigate a civil suit to recover damages if one feels the other has injured her reputation. This private action of defamation was not in issue before the court.

On the other hand, by criminalising defamation, why should the state protect the reputations of individuals while expending public resources to do so? This goes to the concept of crime. When an action is serious enough to harm society it is criminalised. Rape strikes at the root of public safety, human dignity, equality, and peace, so it is a crime. A breach of contract only injures the party who was expecting the performance of contractual duties; it does not harm society, so it is not a crime. Similarly, a loss of reputation, which is by itself difficult to quantify, does no harm to society and so it should not be a crime.

Truth and the public good

It may be argued, and the Supreme Court hints, that at its fundament, society is premised on the need for truth; so lies should be penalised. This is where defamation law wanders into moral policing. In Indian and European philosophies, truth is consecrated as a moral good. The Supreme Court quotes from the Bhagavad Gita on the virtue of truth. But while quotes like these are undoubtedly meaningful, they have no utility in a constitutional challenge.

In reality, society is composed of truth, lies, untruths, half-truths, rumour, satire, and a lot more. In fact, the more shades of opinion there are, the livelier that society is. So lies should not invite criminal liability.

If we concede the moral debate and arrive at a consensus that the law must privilege truth over lies, then truth alone should be a complete defence to defamation. If the law criminalises untruth, then it must sanctify truth. That means when tried for the crime of defamation, a journalist must be acquitted if her writing is true.



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Compiled, Edited and Circulated by P. MADHUSUDANBut the law and the Supreme Court require more. In addition to proving the truth, the journalist must prove that her writing serves the public good. So speaking truth is illegal if it does not serve the public good.

In fact, truth has only recently been recognised as a defence to defamation, albeit not a complete defence. This belies the social foundations of criminal defamation law. The purpose of the offence is not to uphold truth, it is to protect the reputations of the powerful. But what is reputation? The Supreme Court spends 25 pages trying to answer this question with no success. Instead, the court declares that reputation is protected by the right to life guaranteed by Article 21 of the Indian Constitution but it offers no sound reasoning to support this claim. The court also fails to explain why the private civil action of defamation is insufficient to protect reputation.

The constitution and constitutionalism

There are two core constitutional questions posed by the Subramanian Swamy case. They are:

• Does the crime of defamation fall within one of the nine grounds listed in Article 19(2) of the constitution; and

• Are sections 499 and 500 of the IPC which criminalise and punish defamation reasonable restrictions on the right to free speech?

Article 19(2) contains nine grounds in the interests of which a law may reasonably restrict the right to free speech. Defamation is one of the nine grounds, but the provision is silent as to which type of defamation, civil or criminal, it considers.

However, B.R. Ambedkar’s comments in the Constituent Assembly arguably indicate that criminal defamation was intended to be a ground to restrict free speech.

The answer to the second question lies in measuring the reasonableness of the restriction criminal defamation places on free speech. If the restriction is proportionate to the social harm caused by defamation, then it is reasonable.



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Compiled, Edited and Circulated by P. MADHUSUDANHowever, restating an earlier point, criminalising defamation serves no legitimate public purpose because society is unconcerned with the reputations of a few individuals. Even if society is concerned with private reputations, the private civil action of defamation is more than sufficient to protect private interests. Further, the danger that current criminal defamation law poses to India’s free speech environment is considerable. Dhavan says: “Defamation cases [are] a weapon by which the rich and powerful silence their critics and censor a democracy.”

The Subramanian Swamy case highlights several worrying trends in India’s constitutional jurisprudence. The judgment is delivered by one judge speaking for a bench of two. Such critically significant constitutional challenges cannot be left to the whims of two unelected and unaccountable men. Moreover, from its position as the guarantor of individual freedoms, the Supreme Court appears to be in retreat. This will have far-reaching and negative consequences for India’s citizenry. If the court fails to enhance individual freedoms, what is its constitutional role? The judiciary would do well to stay away from policy mundanities and focus on promoting India’s democratic project, lest it injure its own reputation.

Bhairav Acharya is a lawyer who is interested in free speech. He tweets at @notacoda. His writings are archived at his personal website www.notacoda.net.



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Judgment by ThesaurusBY TUNKU VARADARAJAN

Or, a ‘PROPONEMENT IN OPPUGNATION’ to the Supreme Court’s use of language

The Supreme Court of India ruled last week in the case of Subramanian Swamy v Union of India, on the law of criminal defamation. The aim of this short exercise is not to delve into the merits of the court’s decision. Instead, it is a simple attempt – by a flabbergasted reader – to parse the language of the court, which, in keeping with an alarming trend in Indian jurisprudence, is a hodge-podge of catastrophic syntax and overblown (sometimes laughable) vocabulary.

An arboretum of adjectives, a valley of verbosity, the Supreme Court’s language is easily

the most flowery in the world!

The judgment is 268 pages long, running to 198 imposing paragraphs. I am a former university lecturer in law who has worked in journalism for nearly 25 years as an editor and writer. In the spirit of my vocation, I decided to go through the first paragraph of Justice Dipak Misra’s judgment, taking my “red pen” to it as I would to any submission sent to me as an editor. Here are my observations.

This batch of writ petitions preferred under Article 32 of the Constitution of India exposits cavil in its quintessential conceptuality and percipient discord between [the] venerated and exalted right of freedom of speech and [the] expression of an individual, exploring manifold and multilayered, limitless, unbounded and unfettered



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Compiled, Edited and Circulated by P. MADHUSUDANspectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver and uphold one’s reputation. [words in parentheses added]

This sentence is so convoluted – and so riddled with adjectives – as to be impenetrable to lawyer and lay reader alike. It is among the worst sentences I’ve encountered in all my years of reading legal materials. As an exercise in clarity, try rewriting this long, single sentence as two or three shorter ones, using fewer adjectives and synonyms.

Here are some particular observations:

“exposits cavil”: are you sure you mean ‘cavil’? The word refers to a petty or inconsequential complaint. It is not a synonym for all forms of complaint. In any case, a person would, correctly, ‘cavil at’ something, not ‘exposit cavil.’

“its quintessential conceptuality”: I assume the possessive ‘its’ refers to the ‘batch of writ petitions’. If so, ‘at its core’ would have been a much clearer phrase. So you’d be saying ‘this batch of petitions has, at its core, the complaint that…’

‘percipient discord’: How can ‘discord’ possibly be ‘percipient’? Unless, ‘discord’ is being used here, incorrectly, as a synonym, for ‘disagreement.’ Even then, ‘percipient’ strikes the wrong note.

‘venerated and exalted right’: Why the florid repetition?

‘exploring manifold and multilayered, limitless, unbounded and unfettered spectrums’: Again, this is verbose, repetitive and highly florid. By now, the reader is stuck in a quicksand of adjectives.

‘the controls, restrictions and constrictions’: more verbosity

‘reviver’: Unpardonable typo in the first sentence of a major judgment



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Compiled, Edited and Circulated by P. MADHUSUDANThe assertion by the Union of India and the complainants is that the reasonable restrictions are based on the paradigms and parameters of the Constitution that are structured and pedestalled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates [the] duty to respect [an]other’s right and ensure mutual compatibility and conviviality of the individuals based on [the] collective harmony and conceptual grace of eventual social order; and the asseveration on the part of the petitioners is that freedom of thought and expression cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of individual reputation and of societal harmony, for the said aspects are to be treated as things of the past, a symbol of [the] colonial era where the ruler ruled over the [his] subjects and vanquished concepts of resistance; and, in any case, the individual grievances pertaining to reputation can be agitated in civil courts and thus, there is a remedy, and viewed from a prismatic perspective, there is no justification to keep the provision of defamation in criminal law alive as it creates a concavityand unreasonable restriction in individual freedom and further progressively mars [the] voice[s] of criticism and dissent which are necessitous for the growth of genuine advancement and a matured democracy. [words in parentheses added]

I was too hasty in concluding that the first sentence of this judgment was notably awful. The very next sentence is even worse, surpassing the first in verbosity, obfuscation, flabbiness, meandering length, and analytical ineptitude.

As an exercise in linguistic clarity, try writing this one giant sentence as five or six – or even seven –shorter ones instead. If a sentence contains two semi-colons, you can be sure that it is longer than it needs to be.

Here are some particular observations:

‘paradigms and parameters’: Was this double-whammy really necessary?

‘that are structured and pedestaled’: And this second double-whammy? And was it really necessary to turn ‘pedestal’ into a hideous verb?



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Compiled, Edited and Circulated by P. MADHUSUDAN‘need and feel of the time’: A surprisingly laid-back phrase in the context. But do you really want to say that the ‘paradigms and parameters of the constitution [are] structured and pedestaled on the…need and feel of the time…’? Because, that’s what you’re saying…

‘conceptual grace of eventual social order’: How is ‘social order’ both ‘conceptual’ and ‘eventual’? What do you mean by ‘conceptual grace’? Do you mean the ‘desirability’ of social order? Your meaning is entirely unclear.

‘asseveration’: Was this polysyllabic tub-thumper really necessary? What’s wrong with ‘claim’, or ‘assertion’?

‘and made paraplegic on the mercurial stance of individual reputation and of societal harmony’: This is bad writing masquerading as fancy prose. How can something be ‘made paraplegic’ on a ‘mercurial stance’? This is a massacre of metaphors. And what exactly do you mean by ‘the mercurial stance of individual reputation and societal harmony’? Do you mean that they are ever-changing? But ‘mercurial’ applies to sudden and temperamental change that results from within a person, not to changes (in, say, a reputation) that happen as a result of external circumstances and forces beyond the individual’s control.

‘for the said aspects are to be treated as things of the past’: What aspects, exactly, are the ‘said aspects’ here? And what do you mean by ‘things’?

‘viewed from a prismatic perspective’: this phrase is meaningless.

‘as it creates a concavity’: this phrase is a meaningless analogy from geometry.

‘which are necessitous for the growth of genuine advancement and a matured democracy.’: ‘Necessitous’ is an unnecessarily pompous way of saying ‘necessary.’ What do you mean by ‘genuine advancement’…advancement of what? And how can you have growth of advancement? Finally, I presume you mean ‘mature’ when you say ‘matured’…when something has ‘matured,’ it is often the case that it has come to an end.



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Compiled, Edited and Circulated by P. MADHUSUDANThere are 197 paragraphs after this one.

It would be unfair to say that all of them hit the linguistic depths to which Justice Misra plummets in the text above (though I can’t resist noting that the section where the views of those opposed to the petitioners are laid out is bombastically titled ‘Proponements in Oppugnation’). What is remarkable is that the apex court of India should be unembarrassed about putting into the public domain the sort of prose found here in the first paragraph. After all, it is the one part of the judgment that everyone is sure to read.

Tunku Varadarajan, a former lecturer in law at Oxford University, is the Virginia Hobbs Carpenter Fellow in Journalism at Stanford University’s Hoover Institution.

ON DEFAMATION, MACAULAY HAS THE LAST LAUGH ON INDIA BY RAJEEV DHAVAN

Justice Deepak Mishra’s judgment on May 13, refusing to de-criminalise defamation in the Subramanian Swamy case, is a disaster that empowers the powerful to fight each other and to oppress the press and civil society.

Subramanian Swamy

It is said “Friday” combined with the 13th of a month is inauspicious. Justice Deepak Mishra’s judgment refusing to de-criminalise defamation in the Subramanian



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http://i0.wp.com/thewire.in/wp-content/uploads/2016/06/swamy1.jpg


Compiled, Edited and Circulated by P. MADHUSUDANSwamy case was delivered on Friday, May 13. This was the second attempt to decriminalise defamation. In the first round, N. Ravi, a former editor of The Hindu, filed a writ petition in 2004 challenging the continuation of the criminal defamation provisions in the statute book. As chief minister of Tamil Nadu, J. Jayalalithaa had pulverised her critics, including The Hindu, with criminal defamation charges. In all of these cases, sanction to prosecute was quickly given. This is a requirement of the law to protect critics but is so easily granted to politicians in power or with influence. N. Ravi’s case was stifled by a statement in 2007 that all cases against The Hindu and its editor stood withdrawn except for the Junior Vikatan case. That too, Justice Sabharwal, the last great juristic judge of the Supreme Court, recorded would also “hopefully be withdrawn”. Though the court said it would still hear the decriminalising issue, this did not happen for the usual mysterious reasons. The batch of petitions from 2015 which the court finally considered included 22 cases of criminal defamation.

The present batch of cases became a cause celebre because the list included well-known politicians like Rahul Gandhi, Arvind Kejriwal, Jayalalithaa and others. We know that Nitin Gadkari is no stranger to using the law of defamation. Arun Jaitley has also joined this list with a vengeance. Jayalalithaa loves to have the power to harass even those mildly critical of her. Unfortunately, while this present batch was being heard, the media became more interested in the big names rather than the bigger issue of criminal defamation – which besets the everyday life of journalists and editors. The attorney general was, of course, less the AG and more on the side of politicians (his politicians, that is). He made the usual arguments that no right is absolute. (Question: who said it was?). There were amici appointed in this case. K. Parasaran, full of Sanskritic wisdom, invoked dharma sastric concepts of dharma to say there was a duty not to commit defamation because reputations under the life and liberty provisions in Article 21 were protected and this trumps free speech. In fact, what was required was harmonious construction. No one claimed the right to defame but the right to free speech and not to go to jail for statements branded defamatory at the instance of powerful politicians, magnates and others. Ratan Tata claimed privacy rights because he was embarrassed by the Niira Radia disclosures –inviting Open magazine into crippling legislation.

The other amicus, T. R. Andhyarujina, a former solicitor general and self-proclaimed protégé of the legendary Nani Palkhiwala, made a reference to the American New York Times Case (1964) which effectively laid down that even untrue statements may not be defamatory if the journalist had shown due diligence in investigating and



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Compiled, Edited and Circulated by P. MADHUSUDANverifying her sources. Justice Mishra avoided the implications of the New York Times case. Even the English Derbyshire case, along the same lines, which was recognised by Indian courts, was ignored in Justice Mishra’s discourse although emphatically placed before him.

Incidentally, the principle in the New York Times case is the reason why Morarji Desai lost his case in the US against Seymour Hersh, who had alleged that the former Indian prime minister had been a CIA agent. Hersh had traced all sources up to the Pentagon. He acted honestly and diligently. Curiously, apart from a casual reference to the New York Times case by an amicus, Justice Mishra did not delve into this aspect of defamation law which alone makes it constitutionally palpable. Andhyarujina did find India’s criminal defamation law wanting, including its chilling effect, because fair comment was not covered. If so, the criminal defamation provisions should have been struck down. But Andhyarujina was also a bit wishy-washy in his emphasis, knowing that judges cannot legislate. So, Justice Mishra heard what he wanted to hear and ignored the vast contours that he should have explored in his judgment of 268 pages.

The script is excessively wordy, going all over the place. I have no grouse that he did not really do justice to my comprehensive submissions. He was not to know I would weep juristic tears on reading his judgment, and, like my guru Professor J. D. M. Derrett, reacting to the Hindu Law judgment of our Supreme Court, would not eat for two days.

The verbosity of the judgment was certainly excessive, containing references to Salmond on Torts (on civil defamation), the Chambers dictionary, obscure American state rulings (obviously extracted from a Digest), the Bhagwad Gita, Holy Quran, Shakespeare, various international covenants, English courts (effectively ignoring the really relevant ones, or the fact that England had decriminalised defamation), American law (once again ignoring the relevant jurisprudence which was assiduously brought to his notice), a lot of Indian cases on free speech and the right to reputation (ignoring either the relevant cases or the relevant parts of judgments), the constituent assembly debates (ignoring the fact that his emphasis on reputation being part of Article 21, the right to life and liberty, was not considered by that august assembly), material on statutory construction, an old book by Bury History of Freedom of Thought (1913) and his own judgment in theObscenity case. Having cited all this, he came to the conclusion that “freedom of speech and expression is a highly treasured value under the Constitution [but]… it is not absolute [and]… subject to reasonable, restrictions.” It is amazing that all these pages finally result in this inane repetition of an already well-settled proposition of law.

THE RIGHT DIRECTION



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Compiled, Edited and Circulated by P. MADHUSUDANThe next roller-coaster ride is on the meaning of “reasonableness” in so far as it applies to fundamental rights. Why on earth are we referred to speeches of the radical Patrick Henry of the US and the conservative Edmund Burke of England, who were poles apart? I suppose it shows the cosmopolitan erudition of the judge. Justice Mishra concludes: “…in the name of freedom of speech and expression should one be allowed to mar others’ reputation as is understood within the ambit of defamation of criminal law [sic].”

It is not surprising that there are extensive case citations on balancing fundamental rights. The balance can be summarised as such – “The reputation of one cannot be allowed to be crucified at the altar of the other’s right to free speech”.

Who said it should be? Is that the balance? What about “free speech is not to be sacrificed to over-zealous protection of privacy on matters in the public domain and in the public interest”?

Is this latter formulation of mine not a better formulation? We are concerned with matters in the public domain and public interest. I wish the learned judge had read the New York Times case, as adopted and explained by Justice Jeevan Reddy in Auto Shankar’s case on civil defamation. He had a splendid opportunity to gauge the balance in Justice Shetty’s judgments in the Oru Oru Gramathile Case (S. Rangarajan, 1989) which says:

“The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19 (2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.” (emphasis added).

This is in the right direction. That is why Justice Nariman relied on the judgement in the Shreya Singhal case (2015).Indeed, Justice Nariman’s judgment was wholly misconstrued by Justice Mishra. We have once again lost the wood for the trees, also because criminal defamation is not about incitement to violence. It is really a private cause of action criminalising the punishment. There is a longish discussion on ‘fraternity’ and its coming to the fore in the French Revolution. Justice Mishra includes Corporates in the fraternity. Justice Mishra is clear: “a company… has its own reputation.” But material was put before him that Corporates are powerful litigants that pressure people (including journalists) to give up their just cause.



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Compiled, Edited and Circulated by P. MADHUSUDANThe court should read Paranjoy Guha Thakurta et al’s: Sue the Messenger: How Legal Arm Twisting by Corporates is Shackling Reportage and Undermining Democracy in India (2016), in addition to the material I had placed before the court on SLAPP cases (Strategic Litigations against Public Participation). The world is not flat but unequal with the powerful using litigation to silence and chill people. This is the true pathology of litigation, which V.R. Krishna Iyer so brilliantly encapsulated in his judgments.

But Justice Mishra disregards the fact that in criminal defamation, ‘truth’ is not a complete defence and requires showing public interest to the satisfaction of the magistrate or the judge in addition to truth. He also comes to the astounding conclusion that the provisions of criminal defamation are not vague. That is precisely the point. Its indeterminacy is not balanced in democracy’s favour. According to the judge, reasonableness must be judged according to the object of the legislation.

But it is precisely the object of the legislation which was challenged, namely criminalising defamation with presumptions against free speech. The judgment ends with the hope that magistrates will scrutinise complaints properly and that challenges can be made to the high court. Few except the rich can afford more, expensive litigation.

The history behind defamation

The first argument made against criminalising defamation was that this was a colonial legislation drafted by Macaulay in 1837 and included in the statute book from 1860 onwards. Its purpose was to defend the empire and its officials. Recall that Rajiv Gandhi tried to bring in the infamous Defamation Bill in 1988, which was withdrawn due to strong protest. Bihar and Orissa’s bills are still around. True, as Justice Mishra puts it, just because the legislation is old does not mean that it is bad. But Macaulay’s effort was flawed in specific ways. These design faults were placed before the court:

(i) Macaulay proceeds on the assumption that “terror… produces public good”. He also said that Indians and Europeans should be treated differently and flogging is humane. This is the theory of punishment of the Penal Code.

(ii) Criminal defamation would not be linked to breach of place but is justified because an “imputation on the courage of an officer in a private letter seen by one or two people is a venial offence.”

(iii) He also deviated from English law by making slander (oral speech) a criminal offence. This targets everyday public discourse in democratic India.



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Compiled, Edited and Circulated by P. MADHUSUDAN(iv) Truth by itself is not a defence in criminal defamation

(v) Various defences are undermined by the insufficiency of truth not being an absolute defence.

These faults were placed before the court and ignored. The point was not that the constitution-makers continued these laws. The point was: are these laws (including criminal defamation) invidious?

This leads to the second pillar of the learned judge’s argument. The constitution-makers included defamation as a possible restriction on free speech and expression. This foundation is weak for two reasons (i) civil defamation would remain as an option so that decriminalising defamation would not nullify the civil defamation option;

(ii) At the same time, by including defamation in the list of restrictions, the constituent assembly did not imply there must be a law of defamation. It implied that if a law of defamation exists or is made in future, it must meet constitutional requirements.

Invalidating criminal (or even civil) defamation per se does not amount to a constitutional infraction. The legislatures must draft proper laws. Indeed, Lalu Yadav in Bihar (1990) and Rajiv Gandhi (1988) took a cue from Macaulay’s defamation to extend it further.

Third, the learned judge traces the opposition to decriminalising defamation to the right to reputation drawn from the life and liberty provisions of Article 21. Since the judge relies so much on the intention of the constitution-makers, Article 21 as conceived by them did not include either reputation (the view of life and liberty was limited) or invocation of due process (by permitting any procedure established by law). This original intention doctrine (as done by Justice Scalia in the US) is a highly conservative approach. Indian judges rely on the constituent assembly debates, but have progressively radicalised constitutional interpretation. For the court to crawl back into any version of the original intention theory does rank injustice to the genius of judges like Subba Rao, Krishna Iyer, Bhagwati, Chandrachud, Chinnappa Reddy and others who adapted old statutes and ideas into new forms suited to contemporary democratic times.

If ‘reputation’ is a right, it is really no more than a negative right resulting from the inclusion of defamation in the table of restrictions. The right to reputation is also not an absolute right. It must also yield to free speech.



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Compiled, Edited and Circulated by P. MADHUSUDANThe compromise in civil defamation in India and elsewhere in the world is that diligent journalism acting in good faith must be allowed to speak even if its truth is not established. The idea that reputation trumps free speech that is so important to discourse in democratic India sounds more like Donald Trump than good constitutional doctrine. The remedies further suggested by the court for magistrates to be careful and allowing recourse to the high courts are problems looking for a solution. More ruinous litigation is not the answer. The judgment has shaky foundations.

A good part of the world has decriminalised defamation: Macaulay’s England and even Sri Lanka. Further, on April 16, 2012, the UN Human Rights Committee, in Adonis v Philippines Communication No.1815/08, held that criminalising libel was incompatible with Article 19 (3) of the ICCPR. On November 11-18, 2003, the UN’s special rapporteur said:

“I strongly believe that defamation should be decriminalised completely and transformed from a criminal to a civil action, considering that any criminal lawsuit, even one which does not foresee a prison sentence, may have an intimidating effect on journalists. Furthermore, criminalising defamation limits the liberty in which freedom of expression can be exercised. I would also like to draw attention to the fact that if an economic penalty is applied through criminal law, it will most likely also be followed by civil economic reparation to the victim, thus imposing a

double economic sanction.”

These are, with respect, binding on India on an elaboration of the Vishaka principle referred to in the defamation judgment. India is thus in breach of treaty obligations.

The judgment in the Subramanian Swamy (a-man-for-every-cause) case is flawed and lacks juristic rigour and imagination. Justice Deepak Mishra displays a great sense of humour in his demeanour in court. Alas! This judgment is not a joke but a disaster to empower the powerful (including politicians) to fight each other and to oppress the press and civil society. Oliver Wendell Holmes once said “the life of law is not logic but experience.”

This seems to have escaped the attention of Justices Mishra and Pant.



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