Reading Francis Cody's The News Event in the time of Unmindfulness
Shahrukh Alam
“Technopolitics of the Global South" is a modest proposal for naming an aggregator site of new and relevant research that can easily be lost in one disciplinary silo or other. This occasional series on Borderlines inaugurates an effort to connect questions regarding contemporary political forms and practice with numerous other intellectual vectors, of data and digital colonialism, computing from the South, platform imperialism, and mass mediation.
This inaugural dossier begins with introductory framings by Arvind Rajagopal and Francis Cody. This is followed by a set of reflections from Shahrukh Alam, Kajri Jain, Shubhangi Heda and Ishita Tiwary, Anustup Basu, Joyojeet Pal, and Mehak Sawhney.
Francis Cody’s thoughtful new book, The News Event opens with a description of the “midnight arrest” of M. Karunanidhi, an important leader from the state of Tamil Nadu in India. It was an overtly political arrest, and the spectacle of his arrest was recorded on somebody’s camera, and then that recorded clip went viral. It was in circulation, and widely seen and then that circulation in itself became an “event.” The popular event of replaying the clip, as if on a collective public loop, put the state’s chief minister, and Karunanidhi’s political rival, who had engineered the arrest into a difficult position. Karunanidhi had to be released after five days in detention as a result of the adverse public opinion that formed from the circulation of the recording.
This seemed to suggest that even in the year 2001, visual circulation of an act of excess by the state was recognized as injustice and it evoked a political reaction. I sighed when I read this description. I sighed in wistfulness for so much has changed. Everything has changed.
There are egregious images in and of the present. There is text and there is imagery around arrests of political dissenters, young students and old farmers. There are images of public lynchings and degrading assaults. These are in constant circulation at a quotidian level and also at specially organized events to speak about injustices and excesses, yet they do not seem to evoke any sort of public sentiment. They do not cause even a flutter, much less any effective change. In Cody’s contribution to this forum, he discusses the images from Gaza and their seeming inability to arouse an intuitively humane response; their lack of influence on popular politics, or on the rule of law even, as it were. In fact, these violent images often have their own constituencies where they apparently repair wounded masculinities, or perceptions of “historical injustices,” and consequently reiterate a sense of the self. The event of their circulation seems to validate and legitimize actions. Reading Cody’s book, I have been thinking what it is that has changed between 2001 and now. What triggered the “event” of a single circulated image, which caused a political response, and why is it that similar images of jailed dissenters have no impact at all in 2024?
I would argue that even as social media has become much more pervasive, the state deploys more definitive ways to abruptly block circulation, or discredit content. First, there is wide and expansive use of already vague laws that allow for blocking of digital content. But still more pervasive is the organized discursive attack on certain individuals on the basis of their identity, or political positions, aimed at delegitimizing their narratives. This social, cultural, and political delegitimizing through discourse has a cumulative effect over time, where no explicit attack on content is required, mere dog-whistling suffices. There are labels, and tags that signal an immediate dismissal of certain content: “anti-national” (is a label easily attached to anyone who challenges government or corporate policies), “urban naxal” (which is a dog whistle usually for leftist intellectuals, seen as supporters of violent mass agitations), “andolanjeevi” (a paid perpetual protestor), “the syndicate” , “the ecosystem” , and also those based on religious identities: “Jihadi” (a short form for a Muslim dissenter), or “Rice-bag converts” (a slur for Indian Christians, who have purportedly converted to Christianity for material comforts). There is such quick delegitimizing of content, that had the same video of the midnight arrest been in circulation today, and had the authorities so wished, they would have unleashed a counter campaign on social media, bracketing the source of the video as belonging to one of the categories above and therefore not worthy of being taken seriously.
There is no media, or narrative, that is not intersected by the dynamic of state power, often enough manifested in the arbitrary application of law. In the event, certain narratives are also encouraged and escape all legal scrutiny. To be clear, there is still political “viral content” that may slip through the cracks, but more often such content, which showcases a spectacle like the “midnight arrest” is devoid of any immediate political implications. It would typically involve middle class municipal issues, or outrage at petty corruption, which is increasingly described as “citizen action.” Also, because of its discursive heft, the government finds it easy to quickly label content as “national security risk,” and then criminalize and block it. There is a constant suspicion of certain journalists, fact checkers and of course dissenters, and because of the general climate of suspicion, it is relatively easy to bring down the force of “national security laws” upon people. There is certainly an attempt to create a monologous public sphere, with the right of reply to hegemonic politics being denied to “anti-nationals.”
Cody has spoken of the harassment of reporters back in the day, too. However, the harassment was more in the nature of an abuse or misuse of law; what seems different now is the use of overbroad and vague “national security laws,” both by the executive and by the judiciary to establish a jurisprudence of permanent suspicion. It is not a case of simple abuse of process, but a much more substantive weaponization of law in the service of power. Law is not so much ‘misused’ as it is moulded to reiterate state power.It reconstitutes law in the name of national security, to be able to easily obstruct circulation of dissenting or challenging content. Any challenge to authority may be framed in law as a conspiracy to destabilize; reporting on incidents of communal or caste violence may be reconstituted in law as an attempt to overawe the government by ‘broadcasting news with an intent to create disharmony and panic’.
The apparent inversion of meaning is disorienting, sometimes.
I wish to talk about a series of cases filed against a journalist and social media fact checker in 2022. Mohammad Zubair was arrested for having caused “disharmony” and “hurt religious sentiments” through his tweets that reported on incidents of hate speech by Hindu religious preachers, whom he called “hatemongers.” Curiously the complaints did not deny the incident of the said speeches, nor claim that any serious action had already been taken against those who made those speeches. The criminal cases and subsequent action of arrest were novel in that they did not just abuse the process, as happened earlier, by detaining the fact-checker and showing formal arrest belatedly, so that he spends more time in detention, without being produced before a magistrate. Nor did the police attempt to build some exaggerated or false case. Rather, the prosecution sought to completely invert meanings and constitute new jurisprudence that is nebulous, vague and definitely not on the side of the underdog.
The prosecution’s case, on record, is not operating in the shadow of the law, but seeks to be recognized as law. LiveLaw, a premiere law reporter in India, was live tweeting the case as it was being argued in the Supreme Court. The prosecutor said of the accused person:
“He is not a journalist. He calls himself a fact-checker. Under the guise of fact-checking, he is promoting malicious and provocative content. […] There was a speech [made] by Bajrang Muni, where he has a lot of followers. On April 2, [Bajrang Muni] made objectionable speeches. Nobody comes forward [to file a ] complaint. On April 7th, the accused made it viral. He does not tag Sitapur police. He makes it viral. Speech was about raping women of particular community. [….]there was major communal tension in the Sitapur area.”
This was the prosecution's case before the Supreme Court of India. It is now part of the archives. This is not informal harassment. This is not based on some off the cuff, indiscreet remark, but rather it is the state’s framing of the offence. It is not done under the “grey areas” of the law, but is sought to be recognized as a proper interpretation of the law. The prosecution case admits that a local priest in Sitapur was advocating rape as a technique of domination over another community. However, no overt act happened in the aftermath of his speech. The journalist/fact-checker should have let it pass. The fact that he chose to tweet about it is prima facie evidence that it was a motivated tweet and that he wanted to spread disharmony in society. It helped the prosecution’s case that the accused in this case was Muslim, and apparently prone to hurting the religious sentiments of the Hindus by calling the local priest a “hatemonger.”
In the 2022 series of cases, the Supreme Court granted bail and directed him to go to the High Court to apply for formal quashing of the multiple complaints. The same journalist was again booked in 2024; this time for having performed “acts endangering the sovereignty, unity and integrity of India.” The act in question once again involved posting a complaint about a hate speech made by a habitual offender and also reproducing an extract from the vile speech. It was the accused’s case that he was merely reporting on the hateful speeches and wished to urge the police to take strict action against the offender. On the other hand, the complaint against him alleged that he was trying to escalate the matter of the hate speeches by further broadcasting them; that his “intentions” for so doing seemed suspect and warranted criminal investigation. In the meanwhile, no action was initiated against the original and habitual hate speaker and radically majoritarian mobilizer. The journalist moved the constitutional court asking for the absurd criminal complaint to be quashed. The police informed the court that the “investigation against Alt News Co-founder Mohammad Zubair is currently underway and being conducted with utmost sincerity and due diligence.” In the event, the constitutional court refused to quash the complaint stating that although it seemed prima facie that the journalist was only reporting an admitted speech, whether such reportage might give rise to disaffection amongst people is a matter for the criminal investigators to determine, and thus the investigation shall continue.
Here are some extracts from the judgment denying quashing of the criminal complaint:
“The Court is of the view that the statements which were made by the petitioner though apparently were such that they were not in any manner violating the freedom of expression and speech but what inputs the State had one does not know and whether an offence was being made out, only an investigation could reveal.”
"If a person felt that police was not taking action and was expressing disapprobation of the measures taken by the administration then definitely he could express the same but whether those expressions excited secession or armed rebellion or could encourage feelings of separatist activities and as a result endanger sovereignty or unity of the country, could be looked into and judged by the investigating agencies alone…The investigating agencies would be better equipped in these days with modern technologies to look into the allegations made.”
“Investigation in this case is to be done both subjectively and objectively. A lot many psychological angles would have to be looked into. Not only that, the sociological build of the country would also have to be looked into.”
The State is arguing here that the systemic and cumulative hate and incitement does not by itself seriously endanger the unity, integrity and sovereignty of India; it is only when it is reported over digital media does it have the potential to cause such a threat. I am trying to suggest that the constitution of offences, and the framing of the prosecution’s case in law (alarmingly, increasingly endorsed by the courts), whereby the state seeks to block circulation of dissent is of a different order from 2001.
Such inverted jurisprudence of presumed criminality for the politically marginalized has made some strides in recent years. Very recently, Ali Khan Mahmudabad, a well-respected professor at one of India’s liberal arts universities was arrested early on a Sunday morning, which meant that he could not immediately move the courts for bail, or to ask for quashing of the criminal complaints, which formed the basis of his arrest. In the course of the day it turned out that there were two separate complaints filed against him, both assailing his public views in the aftermath of heightened tensions and subsequent military confrontation between India and Pakistan. In a social media post, he had appreciated the restraint shown by the Indian armed forces, and spoken of the futility of war. He had recognized that the daily press briefings on the situation included a Muslim women officer, which spoke to India’s diversity and the promise of equality of all citizens, but he also warned that some of it could be seen to be eroding in incidents of majoritarian violence and state indifference in the recent past. He was making an argument for more substantive responses to Muslim marginalization, in addition to symbolic ones.
When his case finally went to the Supreme Court (by then he had spent a few days in detention), it was reasonably expected that he would be immediately released, but also that the constitutional court would speak to the mala fide nature of his arrest and prosecution. The constitutional court was pleased to grant him bail, but not pleased by his criticism of government inactions, “especially at such a difficult time.” “Everybody talks about rights. As if the country for the last 75 years was distributing rights!" Said the Court. Moreover, the court felt that although there seemed nothing prima facie illegal about his comment, he “may” have been “dog whistling,” possibly trying to mobilize [heretofore unknown entities] against the state.
"Although everybody has the right to freedom of expression, statements by Mahmudabad are what is called dog whistling in law,” said the court. Curiously, “dog whistling” is not a term defined in law. This statement, which constituted a legal offence in the moment, relying on vague impressions of what the term might mean, and which the court may have learnt from recent references in the media, also speaks to the transient nature of criminalization itself, and of how it is embedded in power.
The court refused to quash the facetious complaints and ordered the formation of a special investigation team to investigate and to “holistically understand the complexity of the phraseology employed and for proper appreciation of some of the expressions used in these two online posts.” The investigating team was evidently directed to undertake a literary analysis of the social media posts. In the process they were apparently free to confiscate his electronic devices, mediums for having put out the offending material. The court also confiscated his passport and barred him from travelling during the course of his investigation. The court obviously took the view that to comment on violence, or to question the government at difficult times might excite passions and was therefore suggestive of subversive intent.
It has become the practice for courts and also for defending counsel, to ask for and be granted physical liberty simpliciter, almost as a humanitarian concession and not as right in law, and thus often accompanied by sermons, punitive conditions and bad jurisprudence. Counsel often, and perhaps understandably, only aim for release from prison at the cost of broader concessions on jurisprudence. In this case too, the defence repeatedly reiterated the fact that the writings were “highly patriotic,” and also that the post ended with “Jai Hind” [literally “victory to Hindustan/India,” but also used as a form of salutation]. It naturally restricted the limits of material worthy of public circulation; for one, it had to be “patriotic”. Courts too consider it quite enough to grant release from custody, but having given that liberty, they are hesitant to quash criminal complaints, even when filed in obvious bad faith. In the present case too, criminal proceedings have not been stopped, although in a later hearing the same court did direct the authorities to ‘not enlarge the scope of the investigation and to restrict it to the two complaints on record’, and also to not ‘confiscate devices’. The court streamlined its earlier overbroad order barring him from public writing or speaking. Investigations were finally concluded and the police report exonerated him in one of the complaints and recommended prosecution in the other. As a footnote, interestingly, the National Human Rights Commission sent a show cause notice to police authorities stating that the Sunday morning arrest appeared to be an excessive use of powers, which may have breached certain freedoms. There has been no formal response to the notice yet.
The attribution of blame, and the lingering suspicion around certain groups and individuals in the present speaks to another case that Cody describes in his book. Pavitra was a Dalit woman who eloped with a Muslim man thus enacting a social transgression that resulted in “communal tension,” a term we use in India to describe social tensions between two religious communities, typically between Muslims and Hindus, which often result in majoritarian, lop-sidedly violent riots. In Cody’s records, in the aftermath of the communal tension, when Pavitra appears in court one day, seemingly having fought with the new husband and seeking refuge and protection, yet refusing to return to either her family, or her husband, the court summarily shuts her up, unwilling to listen to her perspective, and blaming her for having caused disharmony by acting irresponsibly. The apportioning of blame leaves more in the share of the more marginalized. It would seem that outside the strict letters of the law, there is still a social code, always mediated by power that courts like to apply to certain cases. It is not law, but still carries the “signature of the state” in that it carries a certain weight and the prosecution, the defense and the courts come together to perform the iterations: speech should be patriotic in order to be defensible, it should be mindful of social niceties, women should fall in love more responsibly and having once made a decision, most certainly stick to it.
In December 2024, Nadeem Khan who is a community leader and civil rights activist was booked by Delhi Police for “criminal conspiracy to promote enmity between communities.” The criminal complaint against him was filed by a police inspector citing “secret sources” who pointed him to a month-old video on social media, where Khan was shown speaking at an event in another city, Hyderabad, about the legal interventions made by his organization against incidents of hate speech, lynchings and illegal, punitive demolitions. The video had also recorded a walk-through by Khan, where he is taking his listeners at the event through a poster exhibition showing instances of hate speech by very senior leaders in government. Unlike in Zubair’s case, here law chose not to go after the “messenger, the secret source, or indeed the author of the video post on social media, which evidently broadcast the speech.” Earlier the prosecution’s thinking had been that to post information about what was said in a public meeting was the actual act of provocation, as opposed to the public speech itself. Here law went to the heart of the matter and sought to prosecute Khan. The prosecution argued that Khan has “sought to create a narrative portraying members of a ‘particular community’ as victims of systematic oppression by the incumbent government.” It was not their case that Khan had attempted a violent insurrection, or advocated violence, or even civil disorder in any form, but rather that he had chosen to highlight instances where the government could be imagined to have been less than exemplary in its actions towards its minorities. The prosecution submitted in court that:
“This selective portrayal is not only factually distorted but appears to be calculated to evoke feelings of victimization and persecution within that community. Such actions suggest a deliberate attempt to provoke discontent and unrest, amounting to a larger conspiracy aimed at undermining communal harmony and public order.”
and also that
“By disseminating such information, the petitioner has acted in a manner that not only contravenes the statutory provisions but also poses a serious threat to the foundational values of peace and unity enshrined in the Constitution of India.”
Pertinently, the prosecution did not question the truth of Khan’s presentation. It was the dissemination of his views that it was criminalizing.
The court kindly protected him from arrest, but refused to quash the complaint in the first instance, asking that more relevant material be brought by the prosecuti, before it takes a final decision. It also barred Khan from leaving the city, and allowed the investigators to seize his electronic devices. Orally, the court remarked, “it is not so simple. What if he had been motivated [to create this narrative]?” If this allegation were to be tested against constitutional freedoms, it would probably not survive. Yet the court allowed Prosecution’s preliminary case, and a roving enquiry, which speaks to the “illegibility of the law” (Das, 2004), of how law is interpreted and constantly constituted in the moment, even in inconsistent ways,, where power has to be exerted.
Cody raises another very important issue in the book about the points of intersection between media and the law. There is the more obvious regulatory relationship between law and mass media, on display in the blocking of circulation of “harmful content.” The state tries to enforce rather broad takedown powers at times. Cody speaks of the older regulatory regimes that centered on laws of defamation, or contempt of court, etc. In the present, the gate-keeping function of law is anchored more in the securitized state, such that the most mundane speech acts can easily slip into an allegation of an act of terror. The News Event also speaks of the depiction of courts in the media, which has a bearing on how courts, if even subconsciously, wish to be perceived in popular culture. Can law ever claim autonomy? Cody describes it as the pressure of mass mediation in legal reasoning, when the latter includes a response to how it is perceived in the mass media.
The performative nature of courts, as well as the constant scrutiny has been intensely amplified ever since Indian courts allowed virtual appearances and arguments. It started in the aftermath of COVID lockdowns, but has now been included as common practice across Indian courts. Litigants can (and often do) record their counsel’s performance. Additionally, certain court hearings are live streamed and are available for viewing on the net. Some hearings are very widely circulated, watched and dissected. The courtroom and the law have entered popular imagination in new ways; hearings in more newsworthy cases have also become more performative, served for popular consumption, and received with delight in the form of “short reels.” Most of the scrutiny is seen as a step towards greater transparency in courts, but it has indeed caused more obvious convergences between populism and the law. Judges take on populist meanings of events and constitute an offence in the moment, in turn sending it back down with an endorsement, or a “signature of the state.”
Cody speaks of the subjectivities of individual judges that mediate sovereign justice. Judges’ own social, political locations, their identities based on caste, class, gender and religion, or their impressions about other groups and communities: about Muslims, or Dalits, or queer people. Of course, all of it came through during court hearings, and it had a bearing on how law was interpreted. I would urge that perhaps there has been a further systemic shift towards reliance on meanings outside of law. There is a populist strain in circulation, both through text and imagery that even formally informs the law. Populist politics seem transcendental in the way that it constantly informs the law through mass mediation.
In late 2019, the Citizenship Amendment Bill (CAB) first came into public focus. As the Bill made its way through Parliament garnering easy majoritarian votes and eventually being endorsed as valid law (Citizenship Amendment Act, CAA), there were huge agitations in opposition on campuses and on the streets. The dissenters believed that the new law was unconstitutional in secular India, for it made religion a basis for grant of citizenship to the country. Jamia Millia Islamia is a Central University in the capital city of Delhi; its campus was also at the centre of student-led anti-CAA protests. On December 15th 2019, armed police entered the University campus and from all accounts carried on a violent and brutal assault on students. It resulted in grievous injuries, where one student permanently lost an eye.
The next day some activists attempted to move the constitutional court pleading serious violation of student-protestors’ rights and claiming that the police attack was malevolent and also hugely disproportionate in use of force. On the first day, the court said that it will hear the case only once [the students] stop rioting and get off the streets. “Just because they happen to be students, it doesn’t mean they can take law and order in their hands. This is not the frame of mind when we can decide anything. Let the rioting stop.”
The petitioners before the court reiterated that there was nothing on record to show that the students had indulged in rioting. In fact the grievance was that the police had responded violently to peaceful protests, but the court refused to ‘go into questions of fact’. In the process, however, it already gave an informal, oral finding, which percolated down and constituted the narrative of anti-CAA related student hooliganism. In that moment, the court relied on unverified and stereotypical imagery of the Muslim student stone-pelter, then endorsed it giving it an undeserved legitimacy. The off-the-cuff, oral remarks confirmed that the anti-CAA protestors were violent, and operating outside of law, and therefore they deserved to be stripped of basic constitutional protections. The narrative was disseminated far and wide through mass media. Discursively, the protestors were already at the threshold of being declared terrorists, or those unworthy of engagement, or of constitutional guarantees. Soon enough some of them were booked under terror laws for conspiracy to cause violence and destabilize the country.
The courts seem to be accepting populist categorizations of actions too, which are quite distinct from legal offences. The anti-CAA protestors, particularly, were painted in broad strokes as anti-national, communal troublemakers; it was almost a mass mediatized avalanche. Additionally, there is outright and quite awful propaganda that seeks to construct the terrorist in the image of the Muslim. Aided by the cultural production of the Muslim as disloyal, and as a pampered minority, there is also a certain legal production that simultaneously takes place. The constitutional courts are reassured by the fact that they protect personal liberties in‘suitable cases’, but the shift towards populist construction of law, of long detentions and trials on manifestly political grounds has neither been stopped, not even acknowledged.
The Citizenship Amendment Act sought to reconfigure the citizenship status of certain groups of people. However, in the aftermath of the protests, criminal law, mediated by public opinion, text and images has possibly managed to actually reconfigure the citizenship status of Muslim protestors. The criminal complaints that accuse the protestors of ‘terror acts’ also lay down permissible limits for participatory citizenship, evidently drawing new lines for Muslim dissenters.
The first criminal complaint that was registered in the aftermath of the protests was one by a police official citing ‘unnamed police informers’ and making the following allegations: speeches were given that encouraged people to protest in the streets. This was done to embarrass the government of India internationally, by causing disturbances during a state visit (President Trump was visiting Delhi at the time) and also by furthering the propaganda that minorities in India were being oppressed. Thus, the criminal complaint frames alleged propaganda as a terror offence. There is no allegation that the protestors were directly inciting violence, but the insinuation is that by mobilizing around issues of discrimination and ostensibly minority oppression, they sought to politicise a group of people and violence was always going to be a byproduct.
Violence is not directly attributed to the accused, but the act of political mobilization is framed as a reckless act aimed as an attack on the nation. Also, it suggests that such mobilization, and the inconvenience caused due to blockages and protests provoked others into “retaliatory” violence, the burden of which rests with the original protest organizers. Gautam Bhatia, lawyer and jurist has described the courts’ conduct as “the prosecution’s stenographer,” suggesting that the courts have not been applying their judicial minds, but accepting the prosecution’s case as gospel truth. The court judgments only read like a transcription of the prosecution case. During the bail hearing for one of the accused persons, the court merely records in its order that the accused was “deliberately mobilizing Muslims by suggesting that certain policies of the present government were discriminatory.” The accused was apparently “conspiring to provide Muslims a vocabulary for the articulation of their grievances.” The terrorist is now constructed in court records as a political organiser who is now providing Muslims an outlet for the articulation of their grievances. Mass mediatization has managed to resurrect the ghost of Pakistan, to suggest that Muslims, mobilizing politically, is inherently dangerous to the integrity and the sovereignty of India and “Muslim critical mass.” as it was described by the prosecution case and recorded in the court's order, is in itself a dangerous thing.
There was a time when the courts were more circumspect about describing violence as a terror act, and relied on meanings as laid down in law.
In State of Tamil Nadu through Superintendent of Police, CBI/SIT vs. Nalini & 25 Ors. (1999) 5 SCC 253, a three-judge bench of the Supreme Court of India gave a concurring finding on whether the assassination of former Prime Minister Rajiv Gandhi amounted to a terrorist act. The court ruled that the assassination was an instance of political violence but did not constitute terrorism. The act could only be captured under the criminal offence of “murder.” For it to be prosecuted as a “terror offence” the state would have to bring additional material to cross the evidentiary threshold. One might argue that the judgement did recognize how politically loaded the term “terrorism” is, and kept the state from classifying violence as such, at will. The Court said that even spectacular acts of violence would need to be tested against actual evidence before being prosecuted as acts of terror. That crucial space for actual material evidence seems to have now been ceded to narrative hegemony through mass mediatization.
Cody argues that law is transcendental in the way that it iterates sovereign power. When influenced by a discursive heft, it also starts to iterate hegemony of thought. It is curious how despite the narrative noise amidst the proliferating digital media, only certain content assumes the “signature of the state.” These are the ideas that are loosely endorsed by the courts, if even informally. The convergence between mass mediatized narratives and the law is the visible shift from the time that Cody did his research.
Shahrukh Alam read Law and Sociology. She now practices law at the Supreme Court of India and likes to write about law, society, and politics. She is interested in constitutionalism, and in criminal law and its intersections with power, identity, and class.
Thumbnail Image: by the author