December 13, 2001


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Arvind Lavakare

The climbdown

In November 1946, India suffered an unbelievable orgy of arson and violence let loose by the horrific jihad in Noakhali. The whole country was in a state of siege, so to say. History has it that it was then that an extraordinary man made an appeal to Delhi editors and members of the Central Press Advisory Committee, saying, "I want you to think out some agreed measures of restraint and discretion in publishing news and offering comments... but if there is no agreement, Government will unwillingly be driven to the necessity of taking action, however unpalatable it might seem to the Press, public and Government alike." And to show that he was in earnest, the government passed an ordinance in February 1947 restricting the freedom of the press. Sardar Patel was indeed a resolute and ruthless nationalist.

By agreeing to delete entirely the POTO provision making journalists responsible for giving the government any information they may have on terrorists, Lal Kishenchand Advani and Atal Bihari Vajpayee have proved unworthy heirs to the great man they never fail to revere for what he did to rebuild the Somnath temple and for the way he, not Nehru, created the astonishing amalgam called the Union of India.

At the root of this deletion was the Editors' Guild. It had expressed concern over certain provisions that, it believed, were aimed at inhibiting the free functioning of editors, journalists and media organisations. The guild had demanded that they be deleted or changed.

It's a commentary on the guild's legal insight that, as a matter of fact, there was no single provision covering the media exclusively. In fact, the word "journalist" did not even occur in POTO's text. The provisions were not specific, but applied to all. And what did they try to do?

Section 3(8) placed responsibility on all persons to disclose to the police, as soon as reasonably practicable, information that the person knows or believes to be of material assistance in preventing any terrorist activity. Lawyers preparing the defence of the accused were exempted from this provision.

Section 14 made it obligatory to make available to the police such information in respect of terrorist offences, with failure to do so or deliberately furnishing wrong information resulting in imprisonment of up to three years and/or fine.

Clearly, the guild was being hyper-imaginative. Worse, it was hypocritical. It had, for instance, never been known to oppose sections 39 and 40 of the Criminal Procedure Code. Under those two provisions, any citizen having any material information about the actual commission of any offence or anybody's plans to commit a penal offence is under legal obligation to report the matter to the nearest police station or the office of the judicial magistrate as soon as possible. Section 39 of the CrPC, in fact, lists an array of offences while legally binding the citizen to convey to the authorities his information pertaining to the actual commission or likely occurrence of those offences.

Now, if the Criminal Procedure Code is acceptable to the guild, why object to POTO, which is specifically aimed at terrorism? Honest professionals have no answer to that one. Yet, the Vajpayee Cabinet condescended to delete it. Was that blackmail or was it timidity in facing media power? Or was it a crude attempt to win over the media?

In contrast, consider the position in England and the USA -- traditionally believed to be the biggest guardians of a free media. There is on record a decision of the House of Lords where it is laid down that "...journalists as such have no absolute immunity from the obligation of disclosure of the sources of their information when public interest so requires...". In America, the Supreme Court held in 1972 that "journalists like other citizens are bound to render assistance to an investigation of offences, eg, by disclosing [the] source of information in their possession".

Here one recalls how, not long ago, Veerappan, the smuggling brigand, gave an interview to a journalist that was later telecast all over the country by a private TV network after prior notice and publicity. Isn't there something quixotic about the whole event? The most wanted, most notorious criminal eludes the police over the years, but is "caught" by an individual with the media label? And then left free to smuggle sandalwood and kill innocents? It's certainly a macabre module made possible with media freedom unlimited.

Truly has Tehelka first and POTO's dilution now proved that the media in India wants to be an elite and exclusive class, not to be touched by any power except its owners. Contrary to the truth of our Constitution's guarantee of "freedom of speech and expression" being every Indian citizen's right, but subject to reasonable restrictions in the interests of the nation's integrity and sovereignty, the media wants to create the myth that its status is a big ladder above the commoner's.

One hopes, therefore, that embarrassment simply oozes from the recent arrest of Sivasubramianian, of Veerappan's favourite magazine, Nakkeeran, and the interrogation of Gopal, the mag's editor, over the monies allegedly paid to secure actor Rajakumar's release last year. As it is, the Maharashtra home minister's allegation that pressmen at the chief minister's conference keep their mobiles active indicates that our journalists are not pure angels even as they maintain 'contacts' with terrorists abroad.

It is the media that joined the opposition chorus of opposition to POTO because of the possibility of its misuse. Of course it can be misused -- just as anything else can, from a kitchen knife to nuclear power. Does that mean you ban the manufacture of knives and the study of atomic physics?

Again, the study of pathogens and chemicals has led to anthrax and other weapons. Should one then get the United Nations to adopt a mandatory resolution banning the pursuit of chemistry? By this "logic", one should stop the Nobel Peace Prize too because it was founded by Alfred Nobel, the inventor of dynamite -- the ingredient of all explosives that have killed millions!

Allied to possible misuse, Mulayam Singh Yadav asserted on television that POTO is meant to target Muslims. What in the name of Ram and Sita make the wrestler "moulana" so pompously presumptuous? Nobody has asked him to explain -- nobody, because the media at large does not want to shed its fundamentally "secular" image. Everybody it seems wants to be merely free without the accountability of freedom.

Which takes one back to Sardar Patel. Veteran journalist M V Kamath tells us that while introducing an interim report on "fundamental rights" in the Constituent Assembly -- which was framing the Constitution of India -- Patel said there were people in India who think that "there should be no police, there should be no jail, there should be no restrictions on the Press and that everybody should be free in a free India to do what he likes".

The Sardar must have truly had an extraordinary insight into the future of the Indian elite's psyche. Imagine visualising, 50 years ago, an anti-POTO kaleidoscope of human rights activists, Editors' Guild, a Congresswoman from Italy, "moulanas", commies and others.

Lacking the great man's fiery patriotism and spine, Advani and Vajpayee have, alas, succumbed to the mesmerism of that kaleidoscope.

Arvind Lavakare

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