Social Media Hub… Was the Supreme Court mislead by the political canvas

The Supreme Court is the ultimate hope for justice in India and deserves to be respected and supported.

But in recent days, it appears that Supreme Court is spending a disproportionate share of  its time in resolving political issues and policy issues rather than addressing the citizen’s needs. The special treatment shown to the petition against the arrest of the Naxal sympathisers  of the Bhima Koregao agitation who were allegedly plotting the assassination of the Prime Minister of India, has attracted criticism of a differential soft treatment to Naxal sympathizers and unless this trend is checked, the Supreme Court  is in the danger of losing  some of its respect in the eyes of the common citizens.

Sometimes, the comments made by judges during the hearings get blown up in the media and projected as if it is the final judgement. The Court does not seem to exercise proper control over such motivated reporting of the proceedings creating misconceptions in the public posing a challenge to Governance.

After the unprecedented Press Conference by four senior judges commenting that “Democracy was in danger”  the judges have by their own actions painted themselves as having a political leaning of their own. Now with the change in the Chief Justice with one of these judges taking over as the Chief Justice just before the next election, there will be a higher level of public scrutiny of the actions of the Court. After all, the same judges justified the press conference stating that Citizens need to be aware of certain goings on within the Supreme Court management in the interest of democracy and now they should also be open to the scrutiny of  the fairness of their decisions.

If the Supreme Court has to retain its respect amongst the citizens, it is necessary that the judges display an extraordinary sense of restraint when admitting petitions against normal Government actions filed by the political opponents and also passing adverse comments before hearing out the evidence.

The case of the “Social Media Hub” proposed by the Ministry of Information and Broadcasting which was withdrawn by the Government was an example of how the Supreme Court can interfere in the normal functioning of the Government by just passing strong adverse comment during preliminary hearings at the time of admission of a petition.

In the case of the proposal for setting up of the Social Media Hub which was challenged by a TMC MLA, the comment passed during the hearing by one of the Judges was reported to be “the proposal will be like creating a surveillance state”

If we look at the Financial Express report, it clearly indicates that “Supreme Court Says..” and calls the proposal “E Spying”. Has the Supreme Court taken any objection to this type of reporting? …which is more or less repeated in many other media publications also?

Should not the Supreme Court have asked the Journalist to clarify that it is not the statement of the Supreme Court but only an observation or a question put to one side such as “Is it not amounting to surveillance”?..etc. Has the Supreme Court at this stage gone through the RFP in detail and heard the explanation of the Government?…

Without giving an opportunity to the Government to explain its stand for which the Court is bound, the Court should have avoided jumping into conclusion and not allow the Press to report the matter as if the Court has made up its mind.

If this is allowed, why should there be any trial at all? and in what way this “Expression through Comments” different from “Media Trial”?

It is necessary for the Supreme Court to seriously think about its own conduct in such cases and if any journalist has mis-reported, it should be objected to by the Court itself.

However, this requires the Court to monitor what the media is saying about itself  and on specific matters under trial.  Such monitoring means, scanning the public media vehicles to observe what comments have been made. This is not “Surveillance” of the Citizens of the country.

The Supreme Court failed to recognize that there is a difference between “Surveillance over people” and “Scanning of media” before arriving at the conclusions on the social media hub and its objectives.

The Social Media hub proposal was nothing but creating a set up which could scan the online media including Twitter kind of social media to know what is being published. If such publications are subject to legal action in terms of defamation etc., then there is nothing wrong in the Government or any individual or a company monitoring them.

The business calls it as “Reputation Management”. It is necessary for Supreme Court to understand the term “Reputation Management” and how it is done by the industry. If the means used is unethical or in violation of privacy, objection can be taken to the specific methods used. But it was not prudent on the part of the Supreme Court to flag the “Media Monitoring Exercise” as “E-Spying or Surveillance”.

The petitioner was Mahua Moitra, of TMC and neither the party nor the person has an immaculate reputation themselves and the advocate representing them was a Congress leader Mr A.M.Singhvi. The Supreme Court  ought to have considered the background of the petitioner before making judgemental comments and allowing it to be carried by the media as if it is the final view of the Court.

It is possible that political persons make unsubstantiated allegations as part of their political agenda but the Court should stick to evidences and not accept political allegations and pass comments to be reported in the media.

Going by the report of the Financial Express, it is quoted that the bench said “ The Government wants to tap Citizen’s WhatsApp messages”. I wonder where from they got this idea that the Government wants to tap WhatsApp messages from out of the evidence available before it.

I suppose that the petition was filed on the basis of an RFP a copy of which is here.

If we look at the scope of work in the RFP, the following media vehicles have been indicated.

Twitter, You Tube, Google+, Instagram, LinkedIn, Flickr,Tumblr, Pinterest, Playstore, eMail, News, Blogs, Forums, Complaint Websites.

There is no “WhatsApp” in this RFP at all and if the Supreme Court just took the petitioner’s word for it, then it has let itself be mislead by the politically motivated petitioner.

Out of the social media vehicles indicated in the RFP, the only questionable inclusion is eMail. A clarification could have been asked on what it means and the Court could have ordered its removal. Some of the other media mentioned here have “Private” and “Public Settings” and what a user indicates as “Public” is what a media monitoring agency can monitor.

If there is any attempt to break into “Private” messages or eMail, then it would amount to an offence under Section 66 of ITA 2000/8 as “Unauthorized Access” and neither the Government can ask for it nor the service provider can give it. Any prudent service provider responding to the RFP would have pointed out that “EMail and Private messages are out of scope of the service provided”.

Once the information is in public domain and is collected, what software is used to monitor them is left to the intelligence of the service provider. As long as the data analysis is restricted to “Profiling of the general trend on public response to various Government initiatives” and not “Profiling the behaviour of individuals”, the proposal would even go through the current Personal Data Protection Act 2018 (Draft). Privacy infringement would arise if there is profiling of individuals and not otherwise.

One disclaimer that “Monitoring would be restricted to only such circumstances where there is no violation of law or privacy of an individual”, would have taken care of all the concerns which the Supreme Court would have on the matter.

Instead of showing patience to get the views of the Government, the members of the bench appeared to have been unduly influenced by the weight of the counsel representing the MLA and made harsh comments which were not warranted.

It is tragic that Government did not want to contest the observations of the Court and yielded to the wishes of the political opponents by withdrawing the proposal. Perhaps the Government was not confident that a fair and unbiased view could not be taken by the Court in a surcharged  political atmosphere which had left a threat on the judiciary in the form of impeachment motion and softened the judiciary.

In the process, Government expressed its own no-confidence on the highest court of the land and this should be actually considered as an undesirable offshoot of this incident.

In many of the matters concerning the Internet activities, even the senior counsels on either side are not necessarily well informed and hence they are unable to take a principled stand. In this case also as in the earlier incident of Section 66A scrapping, the Government Counsel did not have the self confidence to argue with the Court that their observations were wrong and contested the case to the logical end with an assurance that if the Court wanted any modifications to meet some concerns, it could be accommodated.

Unless the Supreme Court as well as the Attorney General are able to have a reasoned debate based on the points of law and not get swayed by the media reports and the politically motivated advocates and petitioners, and come to practical solutions of Governance, the Citizens of the Country will consider that there is a fight going on between the Supreme Court and the Government .

When cases like National Herald take endless time, Cases against Jayalalitha are shelved until the death of the accused, while cases against terrorists are taken up in the middle of the night, the general perception of the common man is to consider that the Court has some concerns of its own in discharging its duties.

This is not a good perception for the Court to build.

We anticipate more such instances in future as the election day approaches. We appeal to the Supreme Court to take suitable steps to ensure that such a perception is avoided.

Naavi