26/11: My Take On Certain Aspects Of SC Judgement – OpEd

I have been in receipt of feed-back from some of my friends, Tweeter followers and readers raising certain questions in the wake of the judgement delivered by the Supreme Court on August 29, 2012, dismissing the appeal of Ajmal Kasab, the Pakistani accused in the 26/11 terrorist strikes, against the death sentence passed against him. The judgement has confirmed the death sentence as justified and warranted.

The first set of questions relates to how soon the death sentence will be carried out. There are legal and administrative procedures to be followed before the sentence is executed. I would not like to comment on them.

The second set of questions relates to what is seen by many Netizens as an attempted cover-up by our private TV channels of the very critical observations made by the court as an obiter regarding the live coverage of the 26/11 strikes by our private channels.

As pointed out by me in an earlier article, the devastatingly critical observations made by the court relate to the Indian private channels AS A WHOLE and not to any particular channel. It is important to keep this in view so that one doesn’t go on a witch-hunt.

Having said that, I have to underline that in my over 20 years of experience in dealing with and analysing terrorism I have not come across any instance anywhere in the world where the judiciary has on its own come out with such a devastating criticism of the role of the TV media in live coverage of acts of terrorism.

I do not have as yet access to an authenticated copy of the observations of the court relating to the role of the media. The extracts cited by me below have been taken from some web sites believed to be accurate.

The Supreme Court, inter alia, said:

“405. Any attempt to justify the conduct of the TV channels by citing the right to freedom of speech and expression would be totally wrong and unacceptable in such a situation. The freedom of expression, like all other freedoms under Article 19, is subject to reasonable restrictions. An action tending to violate another person’s right to life guaranteed under Article 21 or putting the national security in jeopardy can never be justified by taking the plea of freedom of speech and expression.

“406. The shots and visuals that were shown live by the TV channels could have also been shown after all the terrorists were neutralized and the security operations were over. But, in that case the TV programmes would not have had the same shrill, scintillating and chilling effect and would not have shot up the TRP ratings of the channels. It must, therefore, be held that by covering live the terrorists attack on Mumbai in the way it was done, the Indian TV channels were not serving any national interest or social cause. On the contrary they were acting in their own commercial interests putting the national security in jeopardy.

“407. It is in such extreme cases that the credibility of an institution is tested. The coverage of the Mumbai terror attack by the mainstream electronic media has done much harm to the argument that any regulatory mechanism for the media must only come from within.” —Citation ends

The Supreme Court’s observations, in my view, are of such far-reaching significance in the history of terrorism in India that one would have expected that this would be one of the main themes of the various TV debates that one saw on the night of August 29. I did not see all the TV debates and, as such, am not in a position to make any authoritative comments on this. However, many of the feed-back received by me allege that there was an attempt by the TV channels to cover up or play down this significant aspect of the judgement.

The reputation and credibility of our TV channels has already taken a beating as a result of the critical observations of the Supreme Court. Their credibility would be further weakened if the general impression of a cover-up by the TV channels is further strengthened.

The third set of questions relates to the case between NDTV and Barkha Dutt on the one side and Shri Chaitanya Kunte, a private blogger, on the other. He had to withdraw certain observations made by him in his blog post regarding the way Barkha covered the terrorist strikes in Mumbai. Both NDTV and Barkha felt that Shri Kunte’s observations tended to be criminally defamatory and tarnish her professional reputation by seeking to disseminate an insinuation that some of the deaths in the strikes could be attributed to the way Barkha covered the incident from the spot.

Many Netizens feel that the SC’s observations have vindicated those of Shri Kunte and hence the NDTV and Barkha now owe an apology to him for insisting on the deletion of his blog post. I do not agree with this contention on the basis of my reading of the SC’s observations. As already pointed out by me, the observations relate to the coverage by the TV channels as a whole and not to the specific coverage of any individual channel or reporter.

It would be untenable to project the observations as amounting to an exoneration of the alleged criminal defamation by Shri Kunte. Some of the criticisms made by Shri Kunte in his blog post were also made by some of us, including this writer, but we voiced our criticism in a professionally objective manner without trying to use it as a stick to beat any TV channel or reporter with.

The last set of questions relate to the relatives of the victims of the terrorist strikes. In other democratic countries, after a historic judgement of this nature in a terrorism-related case, the immediate focus of the channels would have been on the relatives of the victims— How do they feel? Do they think justice has been done? What is their attitude towards the terrorist who contributed to the brutal deaths of their relatives? These are some of the questions that would have been addressed abroad and should have been addressed in our TV debates.

Ever since my participation on behalf of the Government of India in the International Summit on Terrorism in Madrid in March, 2005, I have written a number of articles and delivered speeches drawing attention to the lack of victim activism in India which, in my view, has contributed to the way terrorism is handled by the Government and the media.

I will give three instances of the difference that victim activism can make to the quality and effectiveness of counter-terrorism:

a. In 1988, a Pan Am aircraft from the US carrying US passengers going to Europe for spending the Christmas with their families was blown up off Lockerbie on the Irish coast. During the enquiries, it came out that one of the US agencies had been in receipt of information warning of the likelihood of a terrorist strike against US nationals travelling to Europe for Christmas. The agency alerted all airline companies, but it did not share the information with the public. The relatives of the victims took up the stand that if they had known that such an information existed, they would have advised their relatives not to travel to Europe for X’Mas. The US Government practice of issuing terrorism advisories to the public came into vogue since then.

b. After the 9/11 terrorist strikes in the US, the relatives of many of the victims joined together, attended the hearings of the Congressional enquiry and saw to it that the recommendations for strengthening the intelligence and counter-terrorism capabilities were implemented.

c. After the 26/11 terrorist strikes in Mumbai, the relatives of the US and Israeli nationals killed filed a suit for damages against Pakistan’s Inter-Services Intelligence in a US court.

It is important for the relatives of the victims of the 26/11 strikes to activate themselves in order to see whether the sins of commission and omission pointed out by the SC could be linked to the coverage of any individual channel and if so, whether, it could be sued for damages. They should also agitate against politicians who stand in the way of strengthening our counter-terrorism capabilities due to their political agenda.

Unless and until the media is made to realise that it may have to pay heavily for any irresponsible coverage and unless and until the politicians are made to realise that their political future will depend on the interest evinced by them in strengthening our counter-terrorism capabilities, things will not improve. Activism by relatives of victims has an important role to play in this.