Editorial - PUCL Bulletin: November 2023 Edition
By PUCL Bulletin Editorial Board
The actions of the Indian government over the last month has severely endangered journalism and press freedom. Over 46 journalists associated with web portal NewsClick were raided, their electronic devices were seized. Prabir Purkayastha and Amit Chakravarty of NewsClick were arrested and charged with UAPA. This raid carried out in the early hours of October 3, 2023, is one of the most extensive crackdowns on press freedom in the country in recent times. Newsclick was well known for its coverage of the year long farmers protest as well as the anti-CAA protest. The worrying question all journalists need to ponder is whether in the new India, UAPA can be invoked against journalists who report on dissenters? Can investigative journalism, which covers subjects which the government may not like, be equated with terrorism?
It was not just Newsclick which was in the cross hairs of a raid but also civil liberties and peoples organisations in Andhra Pradesh and Telangana including HRF, CLC – AP & Telangana, CMS, Veerasam and KMPS. What is becoming a trend in such raids is the seizure of all electronic devices including mobile phones and laptops without providing them with cloned copies or hash values. By not providing at the least a cloned copy, the NIA is compromising a gamut of fundamental rights which a person is constitutionally guaranteed. At a time when one’s devices are extensions of their lives itself, arbitrary confiscation of all devices can compromise many rights. It threatens one’s right against self incrimination, right to profession, right to freedom of expression, right to live with dignity and right to privacy. The seizing of all electronic equipment as the default option by the authorities is a development with serious constitutional implications as it impacts both the right to profession and potentially the right to a fair trial.
One way in which the integrity of the data confiscated by the authorities can be guaranteed is by providing the hash value of a device during the time of its seizure. A hash value is a unique numerical value that identifies the contents of the file. If the contents are modified in any way, the value of the hash will also reflect a change. Without providing a hash value, one cannot guarantee the integrity of the data after a device is confiscated. If data is inserted, or if the device is tampered with, it would be difficult to prove the same without a hash value recorded during seizure. This can potentially impact the right to a fair trial guaranteed under Article 21.
There is a pending petition in the Supreme Court filed by Ram Ramaswamy (retired JNU Professor) and others seeking guidelines with regards to seizure, examination and preservation of personal digital and electronic devices and their contents. The petition focuses on the right to privacy, right against self-incrimination, protection of privileged communication, integrity of electronic material and the return of copies of seized material to the person under investigation. Going by the dictatorial and tyrannical manner in which the NIA is confiscating electronic devices, posing a serious threat to the entire regime of constitutional rights, there is an urgent need for an authoritative pronouncement by the Supreme Court.
Closely following on this assault on journalism in the form of the attack on Newclick, comes the assault on artists and writers in the form of the LG of Delhi government giving the sanction to prosecute Arundhati Roy (writer) and Sheikh Showkat Hussain (former professor of International Law at Central University of Kashmir) for remarks they made in a seminar on Kashmir, ‘Azadi: The Only Way’, way back in 2010. It is shocking that a mature constitutional democracy is prosecuting speech, which has no direct causal connection to violence or disorder. Arundhati Roy is being prosecuted for ‘worrying the edges of the human Imagination’ for writing as if ‘the only thing worth globalizing is dissent’ and believing that dissent is ‘India’s best export’. This is a tragedy for a country which prides itself as being the ‘mother of democracy’.
Human rights seems to be in a greater crisis than ever before following the Hamas attack within Israeli which resulted in Israeli casualties including civilians and the taking of hostages by Hamas. However the Hamas attack itself was preceded by a seventeen year blockade of Gaza which was itself a violation of international law. On October 24, the UN Secretary General remarked to the Security Council, “It is important to also recognize the attacks by Hamas did not happen in a vacuum. The Palestinian people have been subjected to 56 years of suffocating occupation. They have seen their land steadily devoured by settlements and plagued by violence; their economy stifled; their people displaced and their homes demolished. Their hopes for a political solution to their plight have been vanishing. But the grievances of the Palestinian people cannot justify the appalling attacks by Hamas. And those appalling attacks cannot justify the collective punishment of the Palestinian people.”
It bears noting that the rules of war are not a reciprocal arrangement between nation states, but rather a common obligation towards humanity. A crime by Hamas does not justify a war without limits, which is what Israel is now waging. The fact that Israel had no compunctions about attacking civilians and the very basis of civilian life by cutting of water and electricity renders this a form of all out war without adhering to the limits mandated by international humanitarian law. The crime which is being visited on the people of Gaza could well amount to a ‘crime against humanity’ or even genocide. Genocide in known as the ‘crime of crimes’ and Israel’s blockade of Gaza, the indiscriminate and heavy bombing, the targeting of civilians, the denial of water, the ethnic cleansing from Northern Gaza all together seem to indicate an intention to destroy the right to exist of the Palestinians of Gaza. This could amount to genocide as genocide is a crime which aims at the deliberate and intentional infliction of ‘conditions of life calculated to bring about the ‘physical destruction in whole or in part’ of a ‘group’. In fact the first prosecutor of the International Criminal Court, Luis Mareno Ocampo has tweeted that a ‘full blockade of Gaza could be considered a crime against humanity and a genocide. It could be investigated by the International Criminal Court.’
This international issue has also had domestic ramifications as the Indian government has declared that it stands with Israel, thereby ignoring the crimes being committed on the Palestinian people. Protestors in different parts of the country right from Delhi, Bengaluru, Mumbai and Uttar Pradesh have been detained for raising the issue of the crimes being committed by Israel. This amounts to an unconstitutional infringement of the right to freedom of speech and expression and the right to dissent.
It is troubling that when the Prime Minister was quick to express his one sided support for Israel while ignoring Palestinian suffering, there is still a painful silence on Manipur. It bears repeating that, Manipur which is a state of the Indian union, the constitutional machinery has totally broken down and there is a de facto ethnic segregation between the hill and the valley, the Kuki and the Meitei population. The Supreme Court, which is seized of the matter is striving to tackle the humanitarian dimensions of the crisis by giving multiple directions based on reports submitted by the expert committee in Manipur. The Expert Committee was set up by the Supreme Court to oversee humanitarian aspects in Manipur. However as we enter the sixth month of the crisis in Manipur, the impunity enjoyed by the perpetrators is having serious consequences. Babloo Loitongbam who is a human rights defender from Manipur who had called for the resignation of the Chief Minister, had his household attacked for speaking his mind. The attack only shows that the Biren Singh Government has failed to fulfil the basic constitutional responsibility of a government, to protect the lives and liberties of all citizens. The PUCL has filed a complaint to the NHRC in this regard urging the NHRC to intervene and ensure protection to Babloo Loitongbam and his family members.
As PUCL’s statement on the marriage equality judgement says, the Supreme Court in Supriyo v Union of India, delivered a landmark verdict, refusing to recognize the right of the LGBTQ community to exercise the right to marry. The judgment is an implicit victory for conservative forces which privilege social morality over constitutional morality with implications for the wider human rights movement. However we are confident that the justice of this cause , rooted as it is in constitutional morality, can’t be denied.