It’s not just the weather that’s hotting up in India. It’s also the season of salacious video-watching and angry high-decibel television debates over the people’s right to satiate their eye-balls with such stuff.
Late April, the cable channel Sony TV scheduled the telecast of the award-winning Vidya Balan-starrer The Dirty Picture, Bollywood’s self-consciously sexy take on the real-life story of South Indian actress Silk Smitha whose death in 1996 left behind an archive of sultry dance cameos and a longer trail of bedroom gossip. Then, in a classic example of bureaucratic bungling, the federal ministry for Information & Broadcasting notified the channel a day prior to the telecast that an “advice” from the government’s Censor Board (which had earlier cleared the movie for unrestricted viewing) would permit only a late-night telecast of the film. Probably having promised its high-paying advertisers a prime-time audience, Sony opted to scrap the program.
But viewers who might have felt let down were somewhat compensated by an alleged real-life video replacement. Viewers on YouTube were greeted the morning after by a four-part, 22-minute-long “uncut” video of a middle-aged man looking remarkably like Congress Party spokesperson and Supreme Court lawyer Abhishek Manu Singhvi — complete with bald pate, protruding upper lip and those trademark rimless glasses — indulging in a lot of talk and what could be reasonably construed as a rather insipid bout of oral and vaginal sexual intercourse with a woman who had earlier entered the video clipping dressed in lawyer robes.
The episode has severely dented — if not fatally bruised — Singhvi’s career in politics as well as his professional and personal reputation.
Let’s begin with the bare, largely undisputed facts. A disgruntled former employee of Singhvi — chauffeur Mukesh Kumar Lal — approached a media house (which owns and runs the cable TV channel Aaj Tak, Headlines Today and the India Today group of publications) with a CD purportedly containing the audio-visual representation of Singhvi having sex in his chambers with a woman. On learning of this development — either through other sources or because of threatening calls or SMSes from Lal himself — Singhvi moved court for an ex-parte injunction against the dissemination of the seedy information contained in the CD. This was accompanied by an affidavit from Lal as well as an oral statement to the court admitting that his actions were motivated by animus against his former employer. In return, Singhvi seems to have agreed to not pursue criminal charges or investigations against Lal. The media house appears to have deferred readily to the court order.
The matter did not end there. While no mainstream television channel aired the actual contents of the CD, the court order could not stop the media frenzy that followed. Many Indian newspapers front-paged the Singhvi CD story and television talk-shows dissected its fallout with breathless urgency and in hair-splitting detail.
But the final straw was the video’s “uncut” appearance on YouTube. Within hours of the video going viral, Singhvi relinquished two of his public-office assignments — as Congress Party spokesperson and as Chairperson of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. He continues however as a parliamentarian — a Rajya Sabha MP representing his native Rajasthan state. For a high-profile and articulate public speaker, Singhvi’s exit was uncharacteristically tame: eschewing a personal appearance, he had his resignation statement released quietly to the media. It is available verbatim on the Net.
The statement, a masterpiece of lawyer-speak, hides more than it reveals. It reflects the kind of phraseology that would have got Singhvi, a graduate of Cambridge University and Harvard University, the very jobs he has now quit. His powers of persuasive obfuscation stood the Congress Party in good stead when it came to deflecting attention from its numerous scams. And when it needed to blunt the sharp impact of Anna Hazare’s anti-corruption movement with a party loyalist who could be trusted to steer the Lokpal Bill into a legislative logjam that would render it toothless, the services of a legal-eagle — particularly someone with an aggressive and argumentative bent of mind like Singhvi — as committee chairperson were seen as invaluable.
Paradoxical though it may seem, these same traits have now come to haunt Singhvi as his resignation statement undergoes public scrutiny. In his statement, Singhvi complained: “It is lamentable such canards are being spread about a CD which has, in fact, been accepted thrice over to be fabricated and morphed. The driver’s disclosure statement to the police, his detailed written statement (i.e. written pleading) in the High Court and his oral statement recorded on oath physically in the presence of the judge, all explain how and why he created this fabrication.”
As one blogger wrote: “This is infinitely richer than what I might have come out with: ‘It’s sad that such lies are spread about a photoshopped CD. The driver has told the police why he lied.’ Thank you, Mr.Singhvi, for bringing a bit of sunshine into a dull existence.”
Among the more debatable parts of the resignation statement are Singhvi’s claim that as “a disciplined soldier of the party” he’s quitting to spare Congress “any inconvenience on this account,” as well as this concluding paragraph: “Either the CD is morphed or it is not. In either event it raises no public interest issue, yet evokes salacious private and prurient interest and contumacious internet violation of a flagrant kind. As a political or a professional class, instead of gleefully watching, promoting or participating in a person’s natural and understandable discomfiture, we must respect privacy issues.”
To put it mildly, Singhvi’s willingness to fall on his sword is tantamount to making a colorable virtue out of a dire necessity. Of course, the party wanted him out soonest, wanting no more odorous drafts of bad publicity over sexual impropriety, so close on the heels of a sex scandal involving another worthy from Rajasthan, state minister Mahipal Maderna whose explicit romp video with his married lover Bhanwari Devi featured on Youtube, and who is now being questioned over her disappearance and possible murder.
But an innocent and forthright Singhvi could well have held his ground and refused to quit. A resignation is not in and of itself a pointer to guilt or even a confession of any wrongdoing. The circumstances however are oftentimes quite telling. And it was open to Singhvi — in fact, even imperative in the light of the unfolding events — to bring the CD under a forensic lens and come clean. What better way to prove his innocence, and thus truly spare his party any “inconvenience” in the long term?
Which brings us to the concluding part of his statement, which bears the seeds of at least three controversial facets of the Singhvi CD episode whose ends remain intriguingly loose: the alleged morphing of the CD, the debate over a litmus test for determining public or national interest, and the issue of privacy as a legal right in these days of rampant sting operations and social media networks. Together, they highlight other ancillary areas of deliberation: such as the roles and responsibilities of the media and the judiciary in framing and adjudicating on these issues.
The paragraph begins with an amazing sentence: “Either the CD is morphed or it is not.” Why this either/or uncertainty over the so-called morphed CD? And more pertinently, who gains from this smokescreen of uncertainty?
Let’s bring in the experts. There is a general consensus of opinion among them that while morphing of faces and body parts between still photographs is a relatively easy and inexpensive task accomplished even by computer-graphics amateurs, a similar morphing job for a movie or video clipping calls for extremely hi-end technical skills available only among a few professionals working with state-of-the-art equipment. It can therefore be prohibitively expensive. The billing is done on a per-second basis and could, without an exaggeration, run into several million rupees for a 22-minute clip.
Realistically therefore, could Singhvi’s chauffeur — smarting, as he was, for being underpaid, among other things — have afforded this steep cost? And, if Singhvi would like us to believe that the chauffeur’s dirty tricks may have been underwritten by Singhvi’s political enemies and/or professional rivals, what stops Singhvi from ordering a hi-tech computer facility to ascertain the CD’s authenticity in order to expose and shut up his rivals and enemies for good? Certainly not the cost involved, given that this job costs far less than the actual morphing and given Singhvi’s lucrative legal practice.
What Singhvi — or anybody else in his place — would of course find unacceptably high is the price of a dreaded eventuality: the CD turning out to be genuine and authentic. It would taint him not just as a two-timing cheat, but as an outright liar as well. Such a report would, at the very least, cast a long enduring shadow on Singhvi's public life — if not terminate it — not to speak of the havoc it would wreak on his family relationships and the ignominy of being rendered liable for “taking gratification to influence a public servant” under Sections 8 and 9 of the Prevention of Corruption Act, 1988, and for the offence of “adultery” under Section 497 of the Indian Penal Code.
Whereas Singhvi’s contention about the morphed CD may well have a straightforward, binary answer in technology, his other assertion on the question of public interest associated with the sexual act is less simple. In plain English, Singhvi is saying: ‘It’s not me in that video clipping, and even if it’s me (which it’s not), there is no other favor being traded for the sex.’
That’s precisely where the red flag of public interest raises itself. People at one end of the debate spectrum argue that Singhvi’s status as a public figure and the location of his chambers in the Supreme Court annexe (so, going strictly by the book, a public building) would prima facie make him culpable in this matter, regardless of whether or not any deal was made by way of promising his partner a public office in consideration for the sexual favour. At the other corner are those among Singhvi’s lawyer buddies and Congress party men who dismiss the whole episode as his “private affair” into which nobody else need pry.
The truth, as usual, probably lies somewhere between these two extremes. It is a long-established truism that a private affair of sexual intimacy even between two consenting adults cannot — and should not — stay under wraps if it’s linked to or conceals transgressions of public or national interest. And curiously, it may again fall on a technological expert to decipher what was said by the lovers before, during and after the act — assuming, of course, that the CD is not a fabricated one.
As it runs on YouTube today, the video clipping, apart being visually grainy and awkwardly angled, is hamstrung by an almost indecipherable — if barely audible — sound track. That, however, has not prevented speculations and even assertions about who said what to whom. For instance, Meenakshi Lekhi, a Supreme Court lawyer and a high-ranking functionary of the women’s wing of the opposition Bharatiya Janata Party, claimed on national television that the audio track began with this question from the lady lawyer to Singhvi: “Judge kab bana rahe ho?” (When will you make [me] a judge?) Other lawyers, preferring anonymity, say they have heard the words “Attorney General,” “Rajasthan” and “U.P. Cadre” at various points in the noisy clipping.
Knowledgeable observers are wary of rejecting Lekhi’s claim in particular. Not necessarily on account of any reputation for credibility, but because of some peculiar events and circumstances surrounding the appointment of Delhi High Court judges in the recent past. In 2010, a collegium (panel) of judges from that court sent a list to the chief justice of India recommending the names of five lawyers to be appointed as judges. The chief justice returned the list, asking that it should be reconsidered by a newly constituted collegium of the same court. The matter reportedly has not moved since then, and the name of the lady lawyer depicted in the CD — easily identified by colleagues — figures in the 2010 list.
In which case, the obvious question: Was Singhvi sealing a quid pro quo pact with the lady lawyer during his long conversation with her in the prelude (or should we say, build-up) to the act, promising to use his considerable clout to further her chances for judgeship in return for a romp in his chambers? To unravel this mystery, a Right-to-Information query addressed to the Supreme Court registrar was filed by an SC litigant on April 23, seeking information “in the larger public interest concerning certain scandalous statements and obscene videos being circulated in the online media concerning appointment of Judges…”
Till the court responds to the RTI query, we would do well to ponder the conflicting imperatives of individual rights to privacy on the one hand and freedom of expression on the other. The debate is old, but the newest fly in the ointment is the proliferation of electronic and digital media. The Singhvi video going viral despite a court order demonstrated the utter futility of injunctions in restricting the spread of sensational material on the internet. But even if such a restriction were technologically feasible, the court would need to apply its mind to the desirability of an injunction when other remedies in the form of a civil suit or criminal prosecution against libel and slander are available. And although the Indian Constitution cites “defamation” or the threat to personal reputation among the reasons for restricting the fundamental right to speech and expression, personal reputation — as BJP parliamentarian and SC lawyer Arun Jaitley correctly pointed out in a recent opinion-piece on the Singhvi injunction — is a matter of private, not public, interest. It is therefore reasonable to argue that there should be a presumption in favor of free speech and against granting such injunctions. The unfettered exchange of ideas is the bulwark of democracy, even at the occasional risk of potential injury to personal reputation.
Until media houses face the courts and their orders with greater spine and gumption and until the selection and appointment of judges in our courts becomes a more rational and transparent process, the public may be forgiven for suspecting that the casting couch syndrome is not restricted to Bollywood.
Online activity in India is governed by the Information Technology Act, 2000. It was enacted primarily to facilitate e-commerce transactions, but was amended in 2008 to enlarge its scope to include Information Security and Data Protection, as well as to counter Cyber Terrorism.
Under the law, watching the Singhvi CD on YouTube is not illegal. However, you fall afoul of the law — and invite a five-year prison term — if you share the CD’s contents directly. In other words, distributing “obscene” material electronically — and that includes uploading or embedding it — amounts to an offence under this Act.
But what if you simply forwarded a link to the video to a like-minded friend or associate? Experts interpret the relevant provisions to mean that the mere forwarding of a link does not constitute “distributing” the actual material because the text you forward is not per se obscene.
Delhi High Court Order Censoring Singhvi Sex Video
IN THE HIGH COURT OF DELHI AT NEW DELHI
ABHIMANYU BHANDARI and ANR. ..... Plaintiffs
Through: Mr. Parag P. Tripathi, Sr. Advocate with
Mrs. Sangeeta Sharma, Ms. Swati Sharma and Mr. A. Ganguli, Advocates
MUKESH KUMAR LAL and ORS. ..... Defendants
HON’BLE MS. JUSTICE REVA KHETRAPAL
Having heard the learned senior counsel for the plaintiffs and scrutinized the plaint, the application and the complaint filed along with the plaint, the Court is of the opinion that the plaintiffs have made out a prima facie case for the grant of an ex parte ad interim injunction in their favour. The balance of convenience is also tilted in favour of the plaintiffs and against the defendants. Irreparable injury is likely to be caused to the reputation and goodwill of the plaintiff No.2 in case the defendants are not restrained from disseminating the information allegedly in their possession in the form of a CD. Accordingly, issue notice of this application to the defendants No.1 to 4, returnable for the date fixed.
Till the next date, the defendants, their agents and all others acting for and/or on their behalf are restrained from publishing, broadcasting, disseminating or distributing in any form or manner the contents of any alleged CD or any other material as described in the plaint in relation to the plaintiff No.2.
The provisions of Order XXXIX Rule 3 of the Code of Civil Procedure shall be complied with by the plaintiffs within three days from today.
A copy of this order be given dasti to the counsel for the plaintiffs under the signatures of the Court Master, as prayed.....
REVA KHETRAPAL, J.
APRIL 13, 2012