Free Speech and its Discontents in India

[Excerpt] The irony of Subramanian Swamy’s newest challenge to India’s hate speech and blasphemy laws is lost on many of his supporters. The same laws were used to prosecute Wendy Doniger and harass Maqbool F. Hussain, as well as Shirin Dalvi and others who published images depicting the Prophet Muhammad.

The Four Parts of Privacy in India

[Summary] Because privacy enjoys an abundance of meanings, it is claimed in diverse situations every day by everyone against other people, society, and the state. Traditionally traced to classical liberalism’s public/private divide, there are now several theoretical conceptions of privacy that collaborate and sometimes contend. Indian privacy law is evolving in response to four types of privacy claims: against the press, against state surveillance, for decisional autonomy, and in relation to personal information. The Indian Supreme Court has selectively borrowed competing foreign privacy norms, primarily American, to create an unconvincing pastiche of privacy law in India. These developments are undermined by a lack of theoretical clarity and the continuing tension between individual freedoms and communitarian values.

Mastering the Art of Keeping Indians Under Surveillance

[Excerpt] The Central Monitoring System (CMS) is an attempt to co-opt the interface between government and the purveyors of communications; because if the state cannot control communications, it cannot control society. It represents the natural culmination of the progression of Indian surveillance. However, in its present state, Indian surveillance law is unable to bear the weight of the CMS project, and must be vastly strengthened to protect privacy and accountability before the state is given direct access to communications.

Anvar v. Basheer and the new (old) law of electronic evidence

[Abstract] Last week, the Supreme Court of India delivered its judgment in the case of Anvar v. Basheer to declare new law in respect of the evidentiary admissibility of electronic records. Before the enactment of the IT Act, electronic evidence was offered in the same manner as secondary evidence of documents. In 2000, the IT Act created a special evidentiary procedure for electronic records. But, in the Parliament Attacks case, the Supreme Court ignored this special procedure and continued to admit flawed wiretap transcripts as if they were simple documents, this upheld a death penalty conviction. Subsequently, this wrong, but simpler, evidence standard has enabled the admission of leaked wiretap tapes of corruption and other iniquity to promote transparency. The Anvar case returns the law to its correct interpretation but will discourage public interest disclosures.