“Supreme Court Slams UIDAI”.. Is it a fake news created by Economic times?

• There are “Mischievous journalists” around today in the media. Some of them are considered senior journalists and include the likes of Shekhar Gupta who try to pick up wrong narratives only with a view to discredit the Government. Mr Shekhar Guta was also seen as the brain behind the Four Supreme Court judges going to the public with the “Democracy in Danger” press release.

There are also few senior advocates of Supreme Court who are active members of political parties some with dubious reputation in meddling with judicial appointments. Some of them are also members of the Parliament who threaten the Chief justice with “Impeachment” and try to create an atmosphere of fear for the judiciary to go soft on the cases in which opposition parties like Congress are involved.

It is a matter of fact that the Supreme Court takes an unreasonably long time to even hear cases like National Herald case against the Congress leaders where as is in a hurry to hold mid night hearings if the cases are against terrorists and urban Naxalites because influential advocates are moving the petitions. I will not be surprised if the Supreme Court does not hear the National herald case until the 2019 elections are over despite Dr Subramanya Swamy trying his best.

The public are confused on why the Supreme Court is more concerned on the rights of the people who belong to the Tukde Tukde Gang rather than those who are on the otherside of the political divide.

We are concerned that Supreme Court should preserve it’s reputation as the last resort for justice in India acting without bias and within the parameters of the role assigned to it under our constitution.

In the recent days, two instances related to the “Social Media hub” have come before the Supreme Court and in both cases, it appears that the members on the bench have passed some comments which have been picked up by the mischievous journalists to create a narrative as if the Government is making a blunder and Supreme Court is trying to save the country’s democracy by intervening.

We would like to highlight why this narrative is wrong and request that Supreme Court to avoid them being used as a tool to adversely affect the Governance of the country by the political opponents.

In our previous article on the “Social Media Hub” proposed to have been created by the I & B Ministry, we had indicated how the comment made by one of the judges at the time of admission led to the Government to withdraw the proposal itself.

The result was neither to the credit of the Government nor to the credit of the Supreme Court because it showed that both the Government and the Supreme Court could be blackmailed into taking decisions without a proper trial.

In this case, even the Attorney General should be considered as having failed in his duty to properly explain the issue and remove the misconceptions of the Judges which were further compounded by the Government withdrawing the proposal itself.

Mr Ravi Shankar Prasad, the honourable minister also seems to have erred in this case. The team of advisors available to the MeiTy seems to be incapable of putting across the Techno Legal issues properly for the executive to take the right decisions.

As we have pointed out, the purpose for which such “Social media Hubs” can be created and perhaps are needed to be created is for “Monitoring the Media for information” and not for “Arm twisting the media”.  Just as the Police and the intelligence gather information, a corporate (in this case the Government) has to also keep watching the Cyber space for information that is floating around itself so that its own reputation is not damaged and its own name is not used to commit frauds.

It is possible to argue that availability of information can be misused but this cannot be the speculation under which the Supreme Court can pass its judgements.

In the last month we have also highlighted how the names of a former Chief Justice of India, along with the Current President of India and an Union Minister in the PMO have been used for a suspected scam and despite this being brought to the attention of the relevant persons, no action seems to have been taken to prevent the public from being mislead through such an exercise.

It is a standard practice in the Corporate sector that their public relation cells monitor the print publications, the TV media as well as the social media to find out what is the positive and negative reporting about their activities that is getting published. In case of stock market sensitive companies, if any report is published, it is even necessary to respond both to the public as well as to the regulatory agencies whether the news is correct or wrong.

As part of the “Due Diligence” under Section 79 of ITA 2000/8, we normally recommend companies to undertake such activities particularly when  similar looking domain names are registered for committing frauds.

This is called “Reputation management Exercise” and the Supreme Court needs to be aware of this.

I donot credit the petitioners like Mahua Moitra who are political workers of parties like TMC whose objectives are well known to understand the difference between “Media Monitoring” and “Media Control”.

But senior advocates like Mr Abhishek Manu Sighvi or Ranjeet Rohtgi should be more intelligent and informed and if they are arguing with the Supreme Court that the I&B ministry’s social media hub and now the UIDAI proposal to monitor the media are attempts to gag the media, then they are dishonest and are misleading the Supreme Court.  If they are really thinking that the measures of UIDAI or I&B ministry are for media control, then they should produce evidence of misuse and make a case out of it.

If information available on Google search, on platforms like Twitter or Facebook (with public view settings) or on open blogs or online news papers are monitored with a specific search engine, then that does not amount to “Curbing the freedom of speech”. It is perfectly legitimate for the Government or UIDAI to monitor the content which are in public domain and in fact as a citizen of India I consider that it is a part of the necessary duties of the Government.

Any judicial interference in this space would amount to interference in the law and order preservation responsibility of the Government of India.

In the case of the I&B ministry, the petitioners projected that “WhatsApp” will be monitored. I did not find evidence of this in the scope of work described in the RFP document.

Now emboldened by  the media effect of comments passed by Judges during admission stage in the presence of the Press which are twisted and  published  with wrong headlines to create “Fake News”, Madam Mohua Moitra has filed another petition, this time against UIDAI taking objection to their releasing a tender proposal for setting up a Social media hub to monitor the online media about what is being written about UIDAI.

I draw attention to the RFP released by UIDAI which is the subject matter of the petition filed by Mahua Moitra  S/D/W/ Thru:- Dwipendra lal Moitra, 74, Judges Court Road, District Alipore, Kolkata, West Bengal, naming the Union of India through the Secretary of the MEITY and the UIDAI as respondents. The petition has been filed by advocate Ranjeeta Rohatgi under Case No W.P. (C) No 000916/2018 dated 02/08/2018.

Last Friday the 7th September 2018, the petition came up for hearing before a bench comprising of CJI Dipak Mishra, AM Khanwilkar and DY Chandrachud.

Economic Times reporting on the hearing reported with a head line “SC Slams UIDAI tender to conduct online surveillance”.  The report is shown below.

The report is attributed to a comment made by Justice Dy Chandrachud who is quoted as saying “You are trying to do indirectly what we told you cannot do directly”.

In the earlier case against I&B ministry, the same bench is quoted as commenting “The Government wants to tap Citizen’s WhatsApp messages”. It is not clear where from the judges got this information because it was not part of the RFC under question. Either the Judge was making a personal unsubstantiated and unrelated comment or the publication was publishing a fake news. It is for the Bench to check with Financial Express why the bench was reported to have made such a statement.

Similarly, in the current case, Economic Times says “Supreme Court Slams UIDAI”

Has Judge Chandrachud “Slammed UIDAI?”  or

“Is it a fake news created by Economic times”

is a point that needs to be sorted out. If Judge Chandrachud had raised a question to UIDAI to clarify, the report should have been clear in representing the context and tone. But by using strong words like “Slamming” and attributing it to the Supreme Court itself, Economic Times has created fake news and there is a need to flag such headlines and bring the persons responsible to book.

Mr Abhishek Manu Sighvi who is more a servant of the Congress party rather than the servant of the Court  (who he is supposed to be) made a reference to the previous case of the I&B ministry and has sought to draw a parallel perhaps suggesting that in the earlier case since the Government withdrew like a coward, it has admitted guilt and hence even in this case the Government should withdraw.

The Attorney General who meekly surrendered the ground in the last instance Mr K.K.Venugopal perhaps has no clue on what he should do and will run back to the Minister Mr Ravi Shankar Prasad who also seems to be confused on what action is to be taken.

Had the AG and the Minister responded properly in the earlier instance, today it would not have put them on a spot.

Now it is necessary for them to defend both the current instance (UIDAI) as well as the earlier instance. (I&B Ministry)

Judge Chandrachud and CJI Dipak Mishra are also part of the bench which has reserved the judgement on the main Aadhaar case and the Government is afraid that if they rub them on the wrong side, the larger battle will be lost. We are therefore seeing that the Supreme Court has created a “Chilling Effect” on the functioning of the Government and even before the Election is to be announced and code of conduct has to come into play, the Supreme Court is imposing its influence in paralyzing the Government into inaction.

For the Government, there may be political reasons to lie low and let the Supreme Court act in whatever manner it deems fit so that Government is not adversely impacted by an adverse judiciary.

But it is a well known principle that if you give into an extortionist once, you will be hounded again and again. Because the Government withdrew from the battle  in the I&B instance , Government will now have to face this complaint against UIDAI  and later they may also face a complaint against the I& B ministry itself.

Hence this trend has to be checked and it is in the interests of the citizens of India to ensure that the Supreme Court realizes where it is going wrong.

I therefore request the Supreme Court to appreciate

“Monitoring what is being published in different media vehicles is a legitimate activity for any individual, corporate or Government. This should not be faulted and not adversely commented to force the Government to change its administrative actions under threat.”

If there is any evidence that the Government is indulging in any illegal activities, the Court can very well intervene, post the occurrence of such an event. Court should not intervene in routine tenders of the Government on a speculative basis with a wrong reading of the tender document or worse still not reading the tender document.

I now draw the attention of Mr K.K. Venugopal and Mr Ravishankar Prasad to kindly refer the Court’s attention to the “Scope of Work” indicated in the tender which is reproduced here:

a. The Agency shall conduct a comprehensive media search on daily basis and present an update report within prescribed time limits in soft copies on appropriate news reports and content with regards to UIDAI, Aadhaar and other related issues as per the requirements of UIDAI. Hard copies of specific news reports/clippings/tracks/content should be provided on demand to UIDAI within the time period specified.

b. The Agency shall also conduct a comprehensive media search on daily basis and present an update report within prescribed time limits in soft copies on UIDAI’S campaign through print, audio video mediums.

c. The summary of daily reportage with regard to print media along with the published clippings should be sent in .jpeg/.pdf format.

d. The Agency shall provide daily update on electronic/web/digital/ Media Monitoring tracks/clips and pendrive of the same shall be provided on demand within the specified time.
e. The update must be a detailed report covering the entire gamut of media that will includes but not limited to, as per UIDAI’s specifications:

i. Print:

a) All DAVP empanelled national, regional and vernaculars dailies (English, Hindi and regional languages).
b) All magazines including news magazines: weekly, fortnightly and monthly/bi-monthly issues.

ii. Electronic: all National and Regional TV news channels.
iii. Digital/Online/Media Monitoring: Online news & magazines, facebook, twitter, blogs,micro sites, social network sites, etc

I would like the  Government to highlight  that by no stretch of imagination, this activity indicated in the scope of work can be considered as “Media Surveillance”. If some corrupt political minds think so and raise objections, it is not possible for the Government to take cognizance of such objections nor the Supreme Court should take cognizance.

The background of the petitioners and the advocates arguing the case is well indicative of their motive and the Supreme Court has to be objective in its evaluation of the petition and dismiss it in the first place. By admitting such flimsy petitions, the precious time of the Court is being wasted.

Additionally by letting media create fake news based on the innocuous comments and questions raised during the conversation in the Court which is a perfectly legitimate exchange of thoughts between the Court and the Servant of the Court (if the role is being played honestly).

If the Government does not defend its position in this case, it will have an adverse impact on the Corporates also since any Public Relation exercise involving systematic monitoring of news by any Company would be termed as a violation of Privacy of citizens and should be considered punishable under the Personal Data Protection Act 2018 (proposed).

I therefore request Mr K K Venugopal and Mr Ravi Shankar Prasad not to succumb to political doubts about what media will write if the RFP is justified. Media consists of motivated writers like Shekhar Gupta and Sagarika Ghosh and will write negatively whatever the Government does. Kindly Ignore and proceed.

Naavi