The web can be a powerful instrument not just in gathering evidence, support and funds for the undertrials but also in defending the ‘innocent, until proven guilty’. RADHIKA SACHDEV interviews APAR GUPTA. Pix: Apar Gupta
 Sunday, Nov 25 20:28:25, 2012,

Online media, especially social networking sites, have been in the news in India for all the wrong reasons – demand for censorship (such as the Indian government’s controversial proposal to set up a United Nations committee for regulating the net); both left and right wing politicians selectively invoking provisions of the IT Act (Section 66A) and sedition laws that hark back to the Raj days and other means of repressing free expression.

However missing in this piece of action is the creative use of the online medium for individual empowerment, protecting the rights of the common man and lately, crime investigation and evidence gathering by a more progressive clutch of defense lawyers.

Three cases are worth citing here:
  • The Aarushi murder trial, in which friends of the accused parents of the murdered girl have of late started using social media to ward off hostile media attack and its “guilty until proven innocent” stand,
  • The Delhi University-OUP Copyright Case – that started receiving widespread publicity as soon as soon as the campaigning for the University’s photocoping outlet got viral with the setting up of a few independent Facebook groups, along with the publication of letters from eminent DSE alumni such as Amartya Sen, although surprisingly, there is nothing on the case on the official Delhi University Press site.
  • The Guwahati Molestation of a young girl outside a club, where the YouTube video was prominently circulated to raise public angst against the accused.
While abroad, defense attorneys in high profile cases have routinely begun to use their Facebook and Twitter accounts to post legal documents, react to court developments and even raise funds for their clients, in India, the practice is still young. The Hoot caught up with Apar Gupta, a Partner with Advani & Co. to understand how the medium is being used to support the criminal defense system in India.
Q. The evidence collected from the dramatic personae’s emails, or social media accounts in a trial case – are they admissible in courts?
Yes, such evidence is admissible in court. Sections 65A and 65B of the Indian Evidence Act clearly allow for such evidence to be used. Even in cases where the alleged illegality does not stem directly from the social media account itself such evidence can be used. For instance in some matrimonial cases spouses have utilised such evidence to support claims of infidelity.
Q. You mention that “courts have not officially sanctioned the use of social media in such cases which remain beyond the bounds of the proceedings” – what does it mean?
There are no pronouncements or court decisions which comment on the use of evidence which is gathered through social media websites or even parties to a litigation utilizing them during the course of litigation. However there are precedents of parties resorting to the use of websites and social media to generate public sentiment in their favor. A dispute which generated tremendous interest amongst the financial press was the invocation of an arbitration under a clause in a Bilateral Investment Treaty by the Children’s Investment Fund. Children’s Investment Fund which is a minority shareholder in Coal India had objected to the pricing of coal and made a detailed website which contained the correspondence as well as a brief on the dispute.
Beyond this, even in a few high profile cases, parties have made Facebook pages and Twitter accounts. The most visible example of this is the “Justice for Arushi” campaign, currently being run by Dr. Rajesh Talwar and Dr. Nupur Talwar.
In my view such social media campaigns may run into problems with the Contempt of Court Act as they may be termed to be attempts to influence the decision of courts.
Q. Before stepping down as the Chief Justice of India, S H Kapadia had tried his best to get a constitutional bench to pass a gag order against media establishments reporting on legal issues. When there is so little tolerance for “excesses” in the print medium, do you think, the online medium, which by virtue is non-controllable can at all be policed in the manner suggested by the Indian government to the UN Assembly? Will this not curb the one democratic tool of free expression that the common man has? What is your personal opinion on this issue?
Firstly the UN proposals made by India are not proposals to police the internet. The reasons I shirk away from the term, “policing” is that it automatically conjures up the worst aspects of a totalitarian state. The UN proposals are more or less proposals which are under the consideration of the International Telecommunications Union (ITU) which is primarily considering that whether internet communications, like voice communications should be brought within its regulatory umbrella. The Internet at present is run through servers based in the United States which does not reflect its international character. However, at the same time, such regulatory proposals do have the potential to place regulatory regimes for censorship by countries which should be opposed.
Secondly, I cannot agree with the statement that Justice S.H. Kapadia tried his best to pass a gag order against media establishments, even though the ultimate decision in the Sahara case did end up creating a gag writ. It is not my place to attribute motives to Chief Justice of India especially when there is a legitimate concern that press reporting does effect adjudication. For instance take Suresh Kalmadi’s bail application which when was initially rejected, the order quoted a Times of India article which stated that people were losing faith in government due to corruption. While by all means the corrupt should be jailed, we should be careful in keeping under trails locked up for long periods just because we feel that they will not be convicted eventually. A man is presumed to be innocent till conviction and let’s try to maintain that. Here the relevant conditions for grant of bail should be the ones prescribed by law rather than by public sentiment generated by the media.
Also coming to your point on the low tolerance for excesses by the print media, I think that’s a colonial heritage in part the mystique of law and in part the contempt power of the courts. When I think of this problem, a quote which is used in many contempt judgments when the contemptor is pardoned comes to my mind, “the court should have broad shoulders to shrug of such criticism.”
I think this problem will be great given how social media operates. The Delhi High Court has already seen one contempt case, where a practicing advocate has been accused of contempt on the basis of a blog post. I would also like to add that court reporting is often poor and sometimes contemptuous. However the way out for this is more transparency and information flows from the Judiciary itself. Here court transcriptions of proceedings will go a long way in dispelling corridor gossip on corruption and nepotism.
Q. On the flip side, will non-censorship of online medium lead to more ‘media trials” and “miscarriage of justice”? Can you think of an instance in the criminal justice system, where there was a very specific need for curbing the use of this medium? What went wrong?
Yes, however I think that’s a burden that has to be borne. The important point is that specific laws should not be made to target online communications solely and a principal of equivalence should be adopted. Till date, I have to see a case which has caused tremendous outrage online or lead to a court acknowledging the effects of social media. However at the same time, the way people cheered the conviction of Ajmal Kasab was quite disheartening. Even before the sentence was given many people were calling him to be hanged, lynched or shot. Even during the process of appeals many people were mocking the entire process stating the expenses the State had incurred on keeping him safe without realising that the appeals represented the best of aspects of due process which are available in our country.
Q. As a lawyer, what do you think could be the implicit dangers in the free and democratic use of online media, and can this control not come through self-regulation, as is mooted for the other, more traditional mediums, such as print and television? What are the gains of not controlling?
As a lawyer, I believe that there are adequate laws on the books to prosecute online speech. These are the conventional statutes which apply irrespective of the medium and the Information Technology Act and some other provisions which specifically target online communication. Here the real danger is not through courts but through private notices and executive actions which are permitted under the medium specific laws for internet. Such actions often do not have the adequate safeguards which often censor speech which may be permitted under our right to speech and expression under the Indian Constitution.
Q. What’s your stand on the Indian government’s proposal for internet control made to the UN Assembly? Is that feasible or desirable?
My opinion is that India should strongly object to the present proposal on the grounds of sovereignty, as well as, the ITU being an organisation that is ill-suited to regulate internet communications. The grounds of sovereignty are consistent with our earlier representations where we have argued that criminal laws are local in nature and reflect the social mores of a specific country. In such cases, prescribing international content controls encroaches upon state sovereignty. As I have previously stated, the ITU as an organisation is ill-equipped to handle internet communication. To bring it under the present ITR would be putting in place a system which would damage how it works.