14 Mar 2014 | India, News and features, Religion and Culture
“The book, which is out of stock with us, shall not be reissued until the concerns are addressed for an acceptable resolution of the whole matter,”- says a 10 March statement from Aleph Book Company, publisher of Wendy Doniger’s “On Hinduism”.
A panel of four independent scholars will review the book, and then parley on equal terms with Dina Nath Batra, the same person who vanquished Doniger’s previous book “The Hindus: An Alternative History”.
Aleph’s optimism about some amicable solution is misplaced. Emboldened by Penguin India’s surrender the first time round, Dina Nath Batra’s second onslaught was more strident, and if examined critically, his claims, more preposterous. And nothing in his conduct permits one to hazard a guess about ceding even an inch of territory.
The legal notice slapped by Batra is a bullying rag, littered with random phrases and sentences which cannot be strung together by any stretch of logic. Parsing it, one gets to know how hurtful and offensive the “sexual thrust” of Doniger’s “titillating sexual tapestry” is. In her book which Aleph hails as a “magisterial volume”, a “scholarship of the highest order, and a compelling analysis of one of the world’s great faiths”, Doniger talks about Brahmin men’s monopolisation of Sanskrit, their oppression of women and Dalits (Untouchables), and a religious philosopher’s exhortation to overthrow the caste system and shatter the taboo against beef consumption. Then there is this limerick, whose truth many Indians would grudgingly testify to:
A Hindu who didn’t like kama
Refused to take off his pajama,
When his bride’s lustful finger
Reached out for his linga
He jumped up and ran home to Mama.
Batra and his acolytes’ litany of complaints can go on, and one can continue harping on Hinduism’s inherently pluralistic and tolerant character. But, now the crux of the problem is something different. The bigoted Hindus claim they are “law-abiding citizens” and have only sought to enforce the protection provided by the law, and even Penguin tried to hide behind the charade of “we respect the law of the land”. Which should naturally lead one to inquire -– what do the legal provisions say, and how have the courts interpreted them over the years?
Censorship mavens as “Law-abiding citizens”? Not really.
At first blush, it might seem that Sections 295A, 298, and 153A of the Indian Penal Code demonstrate excessive solicitude for hurt religious sentiments, shut out any independent critical inquiry and punish satire. However, “deliberate and malicious acts intended to outrage” remains an essential ingredient, and this remains the pivot on which freedom of expression rests. Agreed that Doniger’s telling of the scriptures does employ biting satire, and some of her statements are indeed tongue-in-cheek. Because she challenges the hegemonic interpretation of the self-appointed custodians of the faith, they accuse her of gratuitous provocation and making scurrilous statements.
Fortunately, the law takes a different view, and quite assertively so. Indian courts have a long tradition of protecting and upholding the right to express contrarian views on religion and the scriptures.
In 1924, a pamphlet titled Rangeela (“colourful”, in Hindi) Rasul, claiming to describe the real events of Prophet Mohammed’s life did the rounds in pre-Partition Punjab. Muslims were livid, a communal conflagration seemed imminent, but the Punjab High Court upheld the writer’s right to freedom of expression. Section 153-A, the court held, was intended to prevent riotous attacks against members of a particular religious community, and not to bar polemics, even if the remarks were undoubtedly satirical and scurrilous.
When in 2001 the government proscribed posters depicting the Ram Katha (an alternative narrative of the Ramayana) in the Buddhist and Jain traditions, the Delhi High Court put its foot down on not allowing free speech to be trampled by insular bigotry. Regarding the use of stray passages to demand censorship, the Delhi High Court’s 2001 judgement is illuminating. A single phrase — “that militant Ram used to stoke Hindu Muslim hatred in India today” from a documentary on the Ramayana was picked on by the censors. Not only did the court provide a judicial shield to diversity of interpretations, it asserted that random passages are insufficient to justify restrictions on free speech. Any restriction must be justified “on the anvil of necessity and not on the quicksand of convenience or expediency,” or on the unsubstantiated apprehensions of communal violence.
It would be partially speculative to single out all the real or purported reasons for Penguin’s surrender. But to exonerate bigots on the basis of their disingenuous claim of adhering to the law would set a pernicious precedent, paving the way for more books to be “pulped” and authors to be silenced.
This article was published on 14 March 2014 at indexoncensorship.org
11 Mar 2014 | Americas, News and features, United States
(Image: Free Barrett Brown)
On 7 March, a US federal judge granted the government’s motion to dismiss the majority of its criminal case against journalist Barrett Brown. The 11 dropped charges, out of 17 in total, include those related to Brown’s posting of a hyperlink that led to online files containing credit card information hacked from the private US intelligence firm Stratfor.
Brown, a 32-year old writer who has had links to sources in the hacker collective Anonymous, has been in pre-trial detention since his arrest in September 2012 – weeks before he was ever charged with a crime. Prior to the government’s most recent motion, he faced a potential sentence of over a century behind bars.
The dismissed charges have rankled journalists and free-speech advocates since Brown’s case began making headlines last year. The First Amendment issues were apparent: are journalists complicit in a crime when sharing illegally obtained information in the course of their professional duties?
“The charges against [him] for linking were flawed from the very beginning,” says Kevin M Gallagher, the administrator of Brown’s legal defense fund. “This is a massive victory for press freedom.”
At issue was a hyperlink that Brown copied from one internet relay chat (IRC) to another. Brown pioneered ProjectPM, a crowd-sourced wiki that analysed hacked emails from cybersecurity firm HBGary and its government-contracting subsidiary HBGary Federal. When Anonymous hackers breached the servers of Stratfor in December 2011 and stole reams of information, Brown sought to incorporate their bounty into ProjectPM. He posted a hyperlink to the Anonymous cache in an IRC used by ProjectPM researchers. Included within the linked archive was billing data for a number of Statfor customers. For that action, he was charged with 10 counts of “aggravated identity theft” and one count of “traffic[king] in stolen authentication features”.
On 4 March, a day before the government’s request, Brown’s defence team filed its own 48-page motion to dismiss the same set of charges. They contended that the indictment failed to properly allege how Brown trafficked in authentication features when all he ostensibly trafficked in was a publicly available hyperlink to a publicly available file. Since the hyperlink itself didn’t contain card verification values (CVVs), Brown’s lawyers asserted that it did not constitute a transfer, as mandated by the statute under which he was charged. Additionally, they argued that the hyperlink’s publication was protected free speech activity under the First Amendment, and that the application of the relevant criminal statutes was “unconstitutionally vague” and created a chilling effect on free speech.
Whether the prosecution was responding to the arguments of Brown’s defense team or making a public relations choice remains unclear. The hyperlink charges have provoked a wave of critical coverage from the likes of Reporters Without Borders, Rolling Stone, the Committee to Protect Journalists, the New York Times, and former Guardian columnist Glenn Greenwald.
Those charges were laid out in the second of three separate indictments against Brown. The first indictment alleges that Brown threatened to publicly release the personal information of an FBI agent in a YouTube video he posted in late 2012. The third claims that Brown obstructed justice by attempting to hide laptops during an FBI raid on his home in March of that year. Though he remains accused of access device fraud under the second indictment, his maximum prison sentence has been slashed from 105 years to 70 in light of the dismissed charges.
While the remaining allegations are superficially unrelated to Brown’s journalistic work, serious questions about the integrity of the prosecution persist. As indicated by the timeline of events, Brown was targeted long before he allegedly committed the crimes in question.
On 6 March 2012, the FBI conducted a series of raids across the US in search of material related to several criminal hacks conducted by Anonymous members. Brown’s apartment was targeted, but he had taken shelter at his mother’s house the night prior. FBI agents made their way to her home in search of Brown and his laptops, which she had placed in a kitchen cabinet. Brown claims that his alleged threats against a federal officer – as laid out in the first indictment, issued several months later in September – stem from personal frustration over continued FBI harassment of his mother following the raid. On 9 November 2013, Brown’s mother was sentenced to six months probation after pleading guilty to obstruction of justice for helping him hide the laptops – the same charges levelled at Brown in the third indictment.
As listed in the search warrant for the initial raid, three of the nine records to be seized related to military and intelligence contractors that ProjectPM was investigating – one of which was never the victim of a hack. Another concerned ProjectPM itself. The government has never formally asserted that Brown participated in any hacks, raising the question of whether a confidential informant was central to providing the evidence used against him for the search warrant.
“This FBI probe was all about his investigative journalism, and his sources, from the very beginning,” Gallagher says. “This cannot be in doubt.”
In related court filings, the government denies ever using information from an informant when applying for search or arrest warrants for Brown.
But on the day of the raids, the Justice Department announced that six people had been charged in connection to the crimes listed in Brown’s search warrant. One, Hector Xavier Monsegur (aka “Sabu”), had been arrested in June 2011 and subsequently pleaded guilty in exchange for cooperation with the government. According to the indictment, Sabu proved crucial to the FBI’s investigation of Anonymous.
In a speech delivered at Fordham University on 8 August 2013, FBI Director Robert Mueller gave the first official commentary on Sabu’s assistance to the bureau. “[Sabu’s] cooperation helped us to build cases that led to the arrest of six other hackers linked to groups such as Anonymous,” he stated. Presuming that the director’s remarks were accurate, was Brown the mislabeled “other hacker” caught with the help of Sabu?
Several people have implicated Sabu in attempts at entrapment during his time as an FBI informant. Under the direction of the FBI, the government has conceded that he had foreknowledge of the Stratfor hack and instructed his Anonymous colleagues to upload the pilfered data to an FBI server. Sabu then attempted to sell the information to WikiLeaks – whose editor-in-chief, Julian Assange, remains holed up in the Ecuadorian embassy in London after refusing extradition to Sweden for questioning in a sexual assault case. Assange claims he is doing so because he fears being transferred to American custody in relation to a sealed grand jury investigation of WikiLeaks that remains ongoing. Though Sabu’s offer was rebuffed, any evidence linking Assange to criminal hacks on US soil would have greatly strengthened the case for extradition. It was only then that the Stratfor data was made public on the internet.
During his sentencing hearing on 15 November 2013, convicted Stratfor hacker Jeremy Hammond stated that Sabu instigated and oversaw the majority of Anonymous hacks with which Hammond was affiliated, including Stratfor: “On 4 December, 2011, Sabu was approached by another hacker who had already broken into Stratfor’s credit card database. Sabu…then brought the hack to Antisec [an Anonymous subgroup] by inviting this hacker to our private chatroom, where he supplied download links to the full credit card database as well as the initial vulnerability access point to Stratfor’s systems.”
Hammond also asserted that, under the direction of Sabu, he was told to hack into thousands of domains belonging to foreign governments. The court redacted this portion of his statement, though copies of a nearly identical one written by Hammond months earlier surfaced online, naming the targets: “These intrusions took place in January/February of 2012 and affected over 2000 domains, including numerous foreign government websites in Brazil, Turkey, Syria, Puerto Rico, Colombia, Nigeria, Iran, Slovenia, Greece, Pakistan, and others. A few of the compromised websites that I recollect include the official website of the Governor of Puerto Rico, the Internal Affairs Division of the Military Police of Brazil, the Official Website of the Crown Prince of Kuwait, the Tax Department of Turkey, the Iranian Academic Center for Education and Cultural Research, the Polish Embassy in the UK, and the Ministry of Electricity of Iraq. Sabu also infiltrated a group of hackers that had access to hundreds of Syrian systems including government institutions, banks, and ISPs.”
Nadim Kobeissi, a developer of the secure communication software Cryptocat, has levelled similar entrapment charges against Sabu. “[He] repeatedly encouraged me to work with him,” Kobeissi wrote on Twitter following news of Sabu’s cooperation with the FBI. “Please be careful of anyone ever suggesting illegal activity.”
While Brown has never claimed that Sabu instructed him to break the law, the presence of “persons known and unknown to the Grand Jury,” and whatever information they may have provided, continue to loom over the case. Sabu’s sentencing has been delayed without explanation a handful of times, raising suspicions that his work as an informant continues in ongoing federal investigations or prosecutions. The affidavit containing the evidence for the March 2012 raid on Brown’s home remains under seal.
In comments to the media immediately following the raid, Brown seemed unfazed by the accusation that he was involved with criminal activity. “I haven’t been charged with anything at this point,” he said at the time. “I suspect that the FBI is working off of incorrect information.”
This article was posted on March 11, 2014 at indexoncensorship.org
5 Mar 2014 | India, News and features, Politics and Society
In 1993 Nancy Adajania, a 21-year-old student, published an article titled Myth and Supermyth. In it she explored the way in which newly formed nations often fostered a sense of identity by converting their historical figures into national icons. Her article provoked angry protests across the state of Maharashtra, India’s financial hub, where she was charged and arrested for insulting the memory of Shivaji, a 17 century king revered in the state as a Hindu hero. Justice Saldanha considered Adajania’s bail application and said in his judgment: values from “the dark ages” must not be allowed to “turn the clock backwards” on freedom of expression.
And yet the clock has been turned back, and this became clear once again last month when Penguin India agreed to withdraw and destroy all copies of The Hindus, a monograph by the Sanskritist Wendy Doniger. The publishers pulped the book after a four-year legal battle with the Shiksha Bachao Andolan (Save Education Movement), a fundamentalist Hindu outfit that complained the book “insulted” their religion.
In a statement released after the out-of-court settlement Penguin condemned India’s criminal laws, which it said undermined free expression. In no legal system is freedom of speech an absolute, unqualified right. Liberal jurisdictions do, however, recognise that free expression is integral to a free society, and ensure that any qualifications to the right are limited. In India the right to free speech is enshrined in Article 19 of the Constitution, but it is immediately and extensively qualified by Article 19(2) which gives the state licence to impose “reasonable restrictions” – a broad power justifying curtailments based on vague notions such as “morality” and “decency”.
The state and private petitioners have equally exploited India’s penal code to harass, censor or silence individuals. Beyond religion and folk history, politicians and big business have used criminal proceedings to muzzle activists, social workers and political commentators. In 2012 Aseem Trivedi, a satirical cartoonist, was charged with sedition – a crime against the state – for publishing cartoons criticising official corruption. Arundhati Roy, the author and essayist, was similarly threatened with sedition charges for publicly speaking in favour of the Kashmiri right to self-determination. The silencing of personal opinion now also extends to social media. In 2012 a 21-year-old was arrested for hurting religious sentiments after she criticised the decision by authorities to shutdown Mumbai to mark the death of a controversial local politician.
As Faisal Devji, a historian at the University of Oxford, notes, the agents of censorship in India have changed. The colonial-era penal code served the repressive functions of the Raj, but the state has long since been replaced by hard-line extremist groups. For many this shift occurred in 1988 when Rajiv Gandhi, a former Prime Minister, bowed down to pressure from Muslim fundamentalists and banned imports of Salman Rushdie’s Satanic Verses.
In the 2014 World Press Freedom Index, Reporters without Borders ranked India 140 out of 180 countries. India’s denial of free speech in Kashmir and other insurgency-inflicted areas is well established. In its report Reporters with Borders go further, noting journalists are “abandoned by the judicial system” and subjected to “threats and physical violence”, forcing themselves to self-censor. Security forces, criminal groups, demonstrators and members of political organisations are all implicated, the report goes on, in the erosion of freedom of speech.
The state has consistently failed in its duty to safeguard the right to free speech, and increasingly stands back to allow extremists to trample on it. As well as opportunistic politicians the courts, as Ramachandra Guha a prominent Indian historian explains, are also to blame. Before M.F. Husain, India’s most celebrated painter, fled India in self-imposed exile, courts across the country entertained spurious cases filed against him from angry Hindus offended by the artist’s portrayal of Indian gods.
Last year Salman Rushdie described the deterioration of free expression in India as a “cultural emergency”. The extent of this emergency was made shockingly clear when Hoot, a media watchdog, published its annual Free Speech report. In 2013 alone eight journalists were killed, 99 counts of official censorship were recorded and India’s surveillance infrastructure grew to include the Central Monitoring System, National Intelligence Grid and ad hoc interceptions of electronic communications.
Free speech in India is under attack on two fronts: top-down state censorship has been matched by the bottom-up moral policing of ad hoc fundamentalist groups. As Pranab Bhanu Mehta, a leading commentator, warns, “If the state gives taking offence such aid and succour, offence will be easily taken.” Indeed, the clock is at risk of being turned back much further. Emboldened by its victory the Shiksha Bachao Andolan is now determined to see Doniger’s other works destroyed. As Dinanath Batra, the organisation’s octogenarian leader said during a recent interview, “Freedom of expression cannot trample our identity, culture, religion and tradition. We cannot allow anti-national writings.”
This article was published on March 5, 2014 at indexoncensorship.org
28 Feb 2014 | India, News and features, Religion and Culture
(Image: University of Chicago)
Omair Ahmad, author of ‘Jimmy the Terrorist’ and ‘The Storyteller’s Tale’ has written to his publisher, Penguin India, to cancel his contracts so that he does not feel hypocritical criticizing them. Ahmad’s statement follows closely behind a strongly worded letter by author and Booker Prize winner Arundhati Roy, who asked, “You must tell us what happened. What terrified you?”
The reactions by Ahmad, Roy and other Indian authors and columnists have been prompted by Penguin India’s decision to pulp all remaining copies of American author Wendy Doniger’s controversial book – The Hindus: An Alternative History. This decision came after pressure put on the publisher from a lawsuit filed in 2010 by Hindu group Shiksha Bachao Andolan Committee (The Movement to Save Education) which claimed the book contained heresies and factual inaccuracies.
For its part, Penguin India claimed that it settled the four-year suit in part due to the Indian Penal Code that makes it “increasingly difficult for any Indian publisher to uphold international standards of free expression.” It went onto cite section 295A which threatens up to three years imprisonment against those who “with deliberate and malicious intention of outraging the religious feelings of any class of citizens in India, by words, either spoken or written … insults or attempts to insult the religion or the religious beliefs of that class.” International copies of the book are still available. And, predictably, the book can be illegally downloaded over the internet.
Reactions in India have been mixed. There are those who support Penguin’s decision, as there is a worry that the book places forward a highly sexually charged version of Hinduism, offensive to many devout Hindus. Offensive enough for a group to move the Court against such a book, as is their legal right. However, what has shocked many is that Penguin succumbed to pressure to remove the book from the Indian market without their even being a court order forcing them to do so. As a reaction, the Bangalore based Alternative Law Forum has issued a legal notice to Penguin India claiming the publisher has violated freedom of speech laws and its readers’ rights. The Hindustan Times carried an article criticizing Chiki Sarkar, the publisher of Penguin India, for not keeping her word of October 2012 to “take the next injunction we are faced with and really fight it out.” This, to many, is just another case of self-censorship by so-called liberals because of pressure from right-wing fringe groups who “morally police” Indian society. This is indeed a rising trend in India, as is evident by the growing numbers of reports in the news highlighting cases of exhibitions being cancelled and more famously, stopping authors like Salman Rushdie to appear at literary book festivals.
In a passionate editorial, commentator Pratap Bhanu Mehta has hit out at liberals, so called defenders of free speech for failing themselves. As he writes: “Liberal India has been silenced because it never understood that toleration does not, to use Govind Ranade’s phrase, come in halves. You cannot pick and choose when to be tolerant. You cannot choose to be tolerant along partisan lines. Neither can you choose to be tolerant based on what you think are distinctions between good and bad scholarship, serious and scurrilous books. These distinctions are a good basis for criticism; they are not the best basis for deciding whom the law will protect. And R.V. Bhasin, author of a banned book on Islam, will be protected as much as Wendy Doniger. And so it should be. If you want a hundred flowers to bloom, a few weeds will grow as well.”
Bhanu is right. Attacks on freedom of speech aren’t always prompted only by religious groups. It was only in January 2014 that the media reported that ex-bureaucrat Jintender Bhargava’s book India’s national airline, Air India, was being withdrawn by publisher Bloomsbury, with leftover stocks being destroyed, as well as an apology to former civil aviation minister Praful Patel, who has been pilloried in the book as the man who caused the downfall of the airline. Bhargava found that television discussions about his book were cancelled for reasons unknown to him, and despite an ensuing legal battle – ex-minister Patel has filed defamation cases against him which are yet to be settled — the publisher chose to settle the matter with Patel.
In an article on the matter, Medianama reported that the author, Bhargava, chose to keep the rights of the book for himself and is now looking for another publisher or to release the book online. This, the site reports, is possibly “a sign of things to come.”
Could this also be yet another sign of things to come: What it is now being described as the phenomenon of “libel chill” in India. This means using money to start libel suits the moment someone criticizes them. The Hoot reports of yet another case towards the end of 2013, where giant group Sahara India filed a case against Tamal Bandopadhyay, journalist and author and his publisher Jaico India, for damages of a whopping Rs 2 billion and a perpetual injunction restraining them from publishing or circulating or releasing the book, Sahara : The Untold $tory, in any form.
In these cases, what is the role of the publisher? Can Penguin India be held to a higher standard – one that would involve years of costly litigation – or can they be forgiven for taking a business decision that means they give up on their authors who are left to fend for themselves? Should writers of sensitive subjects look to retaining the rights to their books lest they need a new publisher, or explore digital publishing because the trend seems to indicate publishers might not wait for a court order to stop publishing certain books.
The final answer, then perhaps, lies in the solving of “blatant abuse of libel and defamation laws by corporations and individuals in positions of power, to silence critical voices”, as described by Gautam Bhatia in Outlook magazine. He offers a solution: In the interest of free speech the court must protect journalists and authors who do not wilfully or with reckless regard publish what they know to be wrong. As he writes, “it is possible that the pendulum will swing the other way, and the threat of an unrestrained and irresponsible media can never be discounted… undesirable though the prospect of an unaccountable media is, the prospect of a silenced media is far worse.”
The courts must stand up for freedom of expression in India, and publishers and authors need to know that principles of free speech are worth fighting for, and self-censorship isn’t the new order of business. It is absolutely no coincidence that India has been ranked among the worst countries (140 of 180 countries) on the World Press Freedom Index in 2014.
This article was published on 28 February 2014 at indexoncensorship.org
