As FIRs Against Media Pile Up, Inconsistent SC Response Points to Judicial Incoherence

Four recent cases involving the media – Vinod Dua and Arnab Goswami, Amish Devgan and 'OpIndia' – bring out the apex court's inconsistent orders on staying FIRs.

New Delhi: Observers of the Indian judiciary have often complained about there being 15 Supreme Courts instead of one. They cannot be blamed for alluding to the 15 benches of the Supreme Court as 15 independent courts, each not bound by the other’s orders in similar cases.

On Friday, the Supreme Court’s vacation bench of Justices A.M. Khanwilkar and Dinesh Maheshwari stayed further proceedings in first information reports registered against the TV journalist Amish Devgan in Ajmer and Kota (Rajasthan), Hyderabad (Telangana), Nanded (Maharashtra) and Mumbai, and any other FIRs or criminal complaint which have been or may be filed hereafter, relating to a telecast on June 15. The bench also granted him interim protection against any coercive process arising out of these FIRs.

Devgan had tendered a public apology for using the term ‘Lootera Chishti’ for the revered Sufi medieval saint Moinuddin Chishti, claiming he had meant to say ‘Alauddin Khilji’. Devgan’s comment was made during a televised debate on a public interest litigation about the Places of Worship (Special Provisions) Act, inviting criminal complaints from aggrieved persons who accused him of hurting religious sentiments. The comment was an inadvertent error, committed during a heated debate segment, he told the court.

In another case,  another vacation bench comprising Justices Sanjay Kishan Kaul and B.R. Gavai on Friday stayed the proceedings in FIRs registered by the West Bengal police against the ‘OpIndia web portal’s English editor Nupur J. Sharma, Hindi editor Ajeet Bharti, CEO Rahul Roushan and Nupur’s husband Vaibhav Sharma, who the portal claimed is not associated with it. The FIRs were filed in relation to three different articles related to West Bengal on the portal.

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In their petition, the OpIndia staffers allege that the state police used FIRs to scuttle free speech and intimidate and harass journalists. OpIndia Hindi allegedly reported an exchange of words between Bharatiya Janata Party leader and Union minister Debasree Chaudhuri, and Trinamool Congress leaders. Chaudhuri, OpIndia said, had alleged that chief minister Mamata Banerjee was planning to convert West Bengal into an Islamic state and merge it with Bangladesh.

The FIR against OpIndia sought the removal of a post which claimed that the state government was secretly disposing of bodies of deceased coronavirus patients and was hiding data on COVID-19 deaths. OpIndia also invited another FIR for an old report on the azaan allegedly being played at a Durga Puja pandal in Kolkata in October last year.

The OpIndia staff claimed in their petition before the Supreme Court that action against them can only be taken by the Centre under Section 69A of the Information Technology Act, and that the state government has no jurisdiction. They also claimed that the state police has no powers to demand the removal of content from the internet. Issuing notice to the West Bengal government, the bench has stayed further proceedings in pursuance to the FIRs.

Contrast with Vinod Dua case

The stay granted on the FIRs in the Devgan and OpIndia cases stands in contrast to the decision by a three judge-bench of the Supreme Court earlier this month in which Justices U.U. Lalit, Mohan M. Shantanagoudar and Vineet Saran refused to stay proceedings filed against journalist Vinod Dua by the Himachal Pradesh police, even while granting him interim protection from coercive action arising out of it.

On June 14, Dua cited the notice issued by the Station House Officer, Police Station, Kumarsain, Shimla district, Himachal Pradesh in connection with an FIR filed against him alleging offences under sections 124A (sedition), 268 (public nuisance) 501 (defamation) and 505 (public mischief) of the Indian Penal Code on the complaint of a local BJP leader, Ajay Shyam.

Dua, in his response to the notice by the Himachal Pradesh police, offered to join the investigation through email or any other online mechanism. On the basis of this offer, the bench directed Dua to extend full cooperation through video conferencing or other online modes. The Himachal Pradesh police shall be entitled to carry on the investigation including interrogating Dua at his residence after giving 24 hour notice and complying with social distancing norms prescribed during the COVID-19 pandemic, the bench directed.

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The Himachal Pradesh police’s FIR against Dua relates to his telecast on the state’s handling of the COVID-19 crisis. Dua sought the quashing of the FIR, besides guidelines on lodging FIRs against persons belonging to the media of a particular standing, as was done for medical professionals by the Supreme Court’s judgment in Jacob Mathew vs State of Punjab (2005), and affirmed by a constitution bench judgment in Lalita Kumari vs Government of Uttar Pradesh (2014).

Dua pointed to the disturbing trend of state governments – which do not find a particular telecast or report to be in sync with their political ideologies – registering FIRs against journalists, primarily to harass and intimidate them and get them to succumb to the line of the state or else face the music at the hands of the police.

At last count, over 55 journalists have been charged or harassed by the police across the country since the onset of the coronavirus pandemic.

Although Dua’s counsel, Vikas Singh, orally sought a stay of the FIR, Dua’s petition does not make a specific prayer for the same. Apart from seeking exemplary damages to him for the harassment he has been subjected to, Dua requested the bench to pass any order or direction it might deem fit and proper in the facts and circumstances of his petition. However, in his application for interim directions filed in the same case on June 12, Dua specifically prayed for an interim order staying the operation of FIR. But the Justice Lalit-led bench appears to have placed greater reliance on his “readiness to cooperate with the investigation” which he had conveyed to the Himachal Police earlier, than on his plea for stay filed on June 12.

The Supreme Court’s refusal to stay the FIR against Dua is all the more surprising because the Delhi high court had stayed a Delhi police FIR against him, after finding the allegations in the FIR (on a different programme) prima facie hollow.

As one seeks to make sense of the different relief granted by the Supreme Court in similar cases of journalists seeking its intervention to protect them from harassment through FIRs by the police, one thing becomes clear: If a journalist offers his readiness to cooperate with the legal process of investigation to prove his innocence, the Supreme Court is unlikely to come to his or her rescue, and stay the investigation itself.

It is clear that in the absence of a similar offer to cooperate with the investigation, the Supreme Court found merit in staying the FIRs against Devgan and the OpIndia staff  – relief which another bench of the court believed Dua did not require because of his “offer of cooperation with [the] investigation”.

File photo of Supreme Court. Photo: Shome Basu

The lesson from this may appear bizarre, but true: the court is likely to consider a journalist whose conduct or action appears law-abiding to be unworthy of securing a stay on an investigation, even if this means the journalist is unnecessarily harassed by the police for discharging her or his professional duties.

Supreme Court and Arnab Goswami

This conclusion on how and why the Supreme Court may stay an FIR is fortified by the facts in the recent Arnab Goswami case.

Goswami, an anchor with Republic TV, faced multiple FIRs for making remarks in the course of a television discussion on the Palghar lynching which allegedly had the potential to create communal disharmony. Goswami sought the Supreme Court’s intervention to quash all the FIRs against him in multiple states and union territories.

A bench of  Justices D.Y. Chandrachud and M.R. Shah, on May 19, quashed all the FIRs except one filed in Nagpur, and transferred the matter to Mumbai on the basis of Goswami’s own request. The bench held:

“India’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal. The exercise of that fundamental right is not absolute and is answerable to the legal regime with reference to the provisions of Article 19(2). But to allow a journalist to be subjected to multiple complaints and to the pursuit of remedies traversing multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation has a stifling effect on the exercise of that freedom. This will effectively destroy the freedom of the citizen to know of the affairs of governance in the nation and the right of the journalist to ensure an informed society.

The right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express. But we must as a society never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position. The intervention of the Supreme Court is necessary to protect Goswami’s rights as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views. Multiplicity of proceedings before different High courts mean unnecessary harassment to the petitioner, who is a journalist.”

At the same time, the bench made it clear that Goswami would not be shielded from an investigation into Nagpur FIR which has been transferred from to Mumbai on his own request. Goswami, like Dua, did not make a specific prayer for stay of the FIR against him which stood transferred from Nagpur to Mumbai, indicating perhaps a readiness to cooperate with the investigation. Does this make their cases in any way different from that of Devgan and the OpIndia staff? One can only speculate.

Making sense of the incoherence

The Chandrachud-Shah bench held that an accused person does not have a choice on the mode or manner in which an investigation should be carried out or on the investigating agency. In P. Chidambaram vs Directorate of Enforcement, Justice R. Banumathi held that it must be left to the discretion of the investigating agency to decide the course of investigation. The bench in the Arnab Goswami case relied on that in rejecting his plea to transfer the investigation from the state police to the CBI.

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Do Devgan and the OpIndia staffers have a convincing case for stay of investigation in the FIRs filed against them? The precedents set by the benches presided by Justices Banumathi (in the Chidambaram case) and Chandrachud (in the Goswami case) do not suggest so.

The Chandrachud-Shah bench held that so long as the investigation does not violate any provision of the law, the investigation agency can direct its course, which includes determining the nature of the questions and the manner of interrogation.

The bench refused to quash the FIR against Goswami in Mumbai, because the checks and balances to ensure the protection of his liberty are governed by Code of Criminal Procedure (CrPC). The bench had reasoned:

“He is free to pursue available remedies in law. The Supreme Court cannot quash the FIR under Article 32. He has an equally efficacious remedy before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482 (CrPC), there is no reason to by-pass the procedure under the CrPC. We see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained.”

It is not without reason that Scroll.in editors Supriya Sharma and Naresh Fernandes have thought it appropriate to knock at the doors of the Allahabad high court first, rather than rush to the Supreme Court, to quash the FIR filed by the UP police against them.

The Supreme Court’s decision to stay the FIRs against Devgan and OpIndia when it cannot entertain their petitions to quash them is all the more curious. In the case of the Delhi high court’s stay of the FIR against Dua, the high court considered the allegations against him prima facie not valid, and therefore, justified the stay in terms of a reasoned order. The absence of reasoned orders from the Supreme Court while staying the FIRs against Devgan and OpIndia, therefore, makes journalistic explanations for these decisions all the more challenging.

Note: An earlier version of the story said Dua did not make a specific prayer in his petition for stay of his FIR before the Supreme Court.  However, in his application for interim directions filed in the same case on June 12, Dua specifically prayed for an interim order staying the operation of FIR No.53 of 2020 dated May 6, 2020. The story has been corrected to reflect this.