Why the SC's Vinod Dua Verdict May Still Not Guarantee Sufficient Protection to Journalists

While the judgment says every journalist is entitled to protection, it may still fail to deter authorities from misusing the law.

There were two ironies which marked the Supreme Court’s judgment quashing the FIR against well-known television anchor, Vinod Dua on Thursday. Although the bench comprising Justices Uday Umesh Lalit and Vineet Saran had found all the allegations in the FIR baseless, it devoted considerable space in its judgment to the discourse on sedition. Therefore, it is likely to have a lasting influence on our jurisprudence on free speech.

The first irony is that it relied on a Supreme Court judgment delivered in 1962, which had found the accused in that case guilty of sedition. The Constitution bench in Kedar Nath Singh v State of Bihar found the impugned speech of the appellant, Kedar Nath Singh – against the then Congress government – taken as a whole, as seditious. Singh had challenged the constitutionality of Section 124A IPC, which makes sedition an offence. The bench, while upholding the constitutionality of the provision on the ground of maintaining public order, laid down the principles which ought to govern the application of the law. The Lalit-Saran bench borrowed those principles in order to quash the FIR against Dua.

In Kedar Nath Singh, the bench did not have to consider the impact of Section 124A for journalists as a special category, but nevertheless limited it to “intention or tendency to create public disorder”. One reason why the judgment in Kedar Nath Singh continued to be misunderstood in the subsequent years is that it gave leeway to the executive to invoke the law against the vague offence of “intention or tendency to create public disorder”.

The five-judge bench in that case had ignored a previous judgment of another five-judge constitution bench of the court in The Superintendent, Central Prison, Fatehgarh vs Dr.Ram Manohar Lohia (1960), which dealt with the expression “public order” appearing in Article 19(2) of the constitution.

In Lohia, the Supreme Court had rejected the contention that encouraging people to break one law could eventually lead to conflagration and revolution. Lohia faced prosecution for violating a provision of the United Provinces Special Powers Act of 1932, which criminalised instigating people against paying taxes or other liabilities. The Supreme Court struck down this provision as unconstitutional. It held that only a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order could be upheld under Article 19(2). The constitution bench in Kedar Nath Singh ignored Lohia, and upheld Section 124A IPC on the same reasoning which was rejected in Lohia.

Supreme Court of India. Photo: Pinakpani/CC BY-SA 4.0

A missed opportunity

On Thursday, the Lalit-Saran bench recalled Lohia briefly to discuss public order, but didn’t mention that Kedar Nath Singh had missed it. Although it gave relief to Vinod Dua, it could have still narrowed the definition of “tendency to create public disorder” in the light of Lohia. This was a missed opportunity.

Vinod Dua’s second prayer was a direction from the bench that henceforth, FIRs against mediapersons with at least 10 years’ standing should be not registered unless cleared by a committee to be constituted by every state government, the composition of which should comprise of the chief justice of the high court or a judge designated by him, the leader of the opposition and the home minister of the state.

The second prayer helped Dua to buttress his Article 32 petition in the Supreme Court, as the Lalit-Saran bench clearly hinted that in its absence, it would have asked him to approach the high court first. “Going by the nature of the second prayer, relegating the petitioner to file a petition under Article 226 of the constitution, may not be appropriate,” the bench held.

The bench did not grant the second prayer because it felt it was beyond its jurisdiction, and would amount to encroachment upon the legislative field. But journalists at the receiving end of frivolous FIRs against them are likely to ask why did Dua feel that those with 10 years’ standing deserved to be treated differently from the rest. It is not just that the 10 year cut-off is arbitrary, but to deprive those with less than 10 years standing in the profession of similar protection makes no sense. Are those with less than 10 years of standing in the profession more prone to commit the offence of sedition than those with 10+ years? Or does Dua believe that those journalists with less than 10 years in the profession can withstand the procedural harassment, as a result of FIRs against them, whereas those with 10+ years can’t?  The second prayer, therefore, deserved to be dismissed in any case. As if it disagrees with the second prayer on this ground, the bench clarified that every journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under sections 124A and 505 of the IPC must be in strict conformity with the scope and ambit of said sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh. To enhance such protection, the bench could have added here that every prosecution under these provisions should also comply with the definition of “tendency to create public disorder” as discussed in Lohia.

Analysing the allegations against Dua, the bench underlined that the journalist did say in his programme that the airstrikes by India on Balakot and attacks on Pathankot and Pulwama were used as political events to garner votes, but no allegations were made against the prime minister, as was stated in the FIR. But this begs the question, whether it would be an offence if there were allegations in the media against the prime minister?

The bench held that Dua’s comments were merely in the nature of critical appraisal of the performance of the government and not designed to create unrest amongst the public. While this is indeed the correct reading of Dua’s comments, one wonders whether the Lalit-Saran bench, like the five judges in Kedar Nath Singh, also missed the significance of the binding decision in Lohia. In other words, if the test applied in Lohia were to be considered to the facts in Dua case, an inference that Dua’s comments might have a tendency to lead to public disorder could not have withstood legal scrutiny.

Representative image.

Comments on adequacy of preparations to meet the COVID-19 threat cannot be anything other than appraisal of the situation then obtaining, the bench rightly held. “The testing facilities to gauge and check the spread and effect of the pandemic, at least in the initial stages of the surge, were not exactly adequate,” the bench reminded the respondents.

Dua cited the interview of the former chief statistician, reported on March 28, 2020, that if food requirements of migrant workers were not fulfilled amid the countrywide lockdown, food riots could be a real possibility. By the time the talk show was uploaded on March 30, 2020, the movement of migrant workers had already started and was at its peak.

There was naturally some apprehension about the shelter and food to be provided to them en-route to their homes. Dua was within his rights to say that as a journalist, he was touching upon issues of great concern so that adequate attention could be bestowed to the prevailing problems; it cannot be said that he was spreading any false information or rumours, the bench held.

The movement of migrant workers had begun long before Dua’s programme. Therefore, it is neither an attempt to incite migrant workers to move towards their hometowns nor an incitement to cause food riots, the bench held. It is only when the words or expressions have a pernicious tendency or intention of creating public disorder or disturbance of law and order that sections 124A and 505 of the IPC must step in, the bench clarified. It is clear that the bench attaches significance to the timing of Dua’s programme to give him the benefit of doubt. What if the programme coincided, or was telecast before the migration of workers to their hometowns? It is not clear whether the bench would then have held Dua responsible for the events which followed his programme, even though there would not have been a clear causal relationship between them.

A citizen has the right to criticise or comment upon the measures undertaken by the government and its functionaries, so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder, the bench added. While it is easy to contend that a criticism or comment did not incite people to violence, it is not equally easy to prove that there was no “intention of creating public disorder”, as the phrase suffers from considerable vagueness and overbreadth. It is here the judgment in Lohia could have helped the Lalit-Saran bench to further clarify the law.

The bench found that Dua was clearly within the permissible limits laid down in the decision of the Supreme Court in Kedar Nath Singh. Dua was lucky enough to be within those limits. But other journalists may not be so lucky. For them, a reiteration of the law as laid down in Lohia could have helped.