We Must Prevent Further De-Legitimisation of the Media: Fali Nariman on NDTV-CBI Raids

In a speech on Friday, the senior Supreme Court advocate pointed out that the press and an independent judiciary were the only safeguards to an open democracy, especially during times of single-party majoritarian government rule.

Note: On Friday, Fali S. Nariman, senior advocate in the Supreme Court, addressed a press conference on ‘NDTV Raids and Press Freedom’ at the Press Club of India, New Delhi on Friday, June 9. His speech is reproduced below.

I am a stranger here, I neither own a newspaper or channel. I come here on invitation to say a few words to you not only because I fervently believe in our constitutionally guaranteed press or media freedom, but more importantly and more significantly because I also believe in the independence, integrity and honesty of Prannoy Roy of NDTV – a friend of more than 30 years – on whose invitation I attend this meeting.

As to the topic – press freedom – we are here speaking amongst the already converted. We citizens enjoy freedoms that are not enjoyed in most places in the continent of Asia.

I did not realise this until a few years ago when my wife and I attended the Commonwealth Law Conference in Kuala Lumpur: one of the delegates was a retired judge of Malaysia’s court of appeal, and he told a crowded hall of over 1,000 delegates in the presence of the then prime minister, Mr Mahathir, who as you all know was not exactly a liberal.

The retired judge said in a loud voice – “Our written constitution guarantees freedom of speech”; loud applause. Then after a long pause he added – looking towards his prime minister –“But it does not guarantee freedom after speech!”

Freedom after speech – that is really what freedom of speech is all about. Never forget this. You are allowed to speak, speak as much as you like, but there is a fellow waiting there to nab you and out you in so you can’t speak again. That is the protection we are asking for.

Let me make one thing clear. No one is immune from being prosecuted for a criminal offence – not any of you, not I, not Prannoy Roy, not NDTV. We can all be prosecuted.

But the manner and circumstances and the so called justification of the CBI raids on NDTV (much publicised thereafter) do give me reason to believe that all this (these raids and the FIR filed by the CBI) are definitely an unjustified attack on press and media freedom.

Let me tell you why.

On June 2, 2017, an FIR was lodged by the CBI alleging criminal conspiracy, cheating and criminal misconduct on the part of NDTV, Prannoy Roy and his wife Radhika Roy and unknown officials of ICICI Bank about something that took place during the financial year 2008-2009. Mark that please, seven years later, an FIR is lodged.

The FIR was lodged by CBI in the CBI court on the basis not of any discovery by the CBI on its own but only and solely on the basis of information supplied by one Sanjay Dutt, director, Quantum Securities Pvt. Ltd. to the director CBI in his letter of complaint dated April 28, 2017 (marked confidential).

Although the criminal misconduct was said to have occurred in the year 2008-2009 – as to why it was not brought to light earlier was neither mentioned nor explained in the complaint letter of April 28, 2017 addressed by Sanjay Dutt to the CBI.  Nor did the CBI bother to find out why something that happened in the year 2008-2009 was not brought to the notice of the CBI court or of any other criminal court or any other person before April 28, 2017.

The entire FIR filed by the CBI before the CBI court is based only on information supplied in the complaint of Sanjay Dutt dated April 28, 2017.

What is of great significance is that prior to filing his complaint with the CBI, Sanjay Dutt (although he had sent more than 200 emails to NDTV on various matters) had not addressed any communication to NDTV making the specific allegations mentioned in his complaint to the CBI nor does he explain why he did not file an FIR in a criminal court himself alleging breaches of criminal law on the part of NDTV.

I do not know whether on any other occasion the CBI has filed an FIR directly on the basis of information supplied in a private complaint addressed to it without the complainant being required to make his case before a criminal court – this must be inquired into. I should have thought.

A private individual having some grouse against a particular channel does not himself file a complaint but goes to the CBI, that you please have this investigated, and the CBI obliges by promptly filing this particular FIR, followed by raids which are carried out and widely publicised.

But more importantly on receiving such a complaint, what is the obligation of a reputed investigative agency of the state setup by law such as the CBI?

Obviously to my mind the first thing the CBI)would do, in fairness would be to ask the persons against whom allegations are made – NDTV and ICICI Bank – as to what they have to say in the matter – particularly since the allegations now made in 2017 are in respect of events of the year 2008-2009.

But no such inquiry was made by the CBI before conducting the raids on June 5, 2017,  or before filing the FIR on June 2 – not a single letter of the CBI to NDTV with regard to the allegations made in Sanjay Dutt’s letter of April 28, 2017.

My legal submission is that in the case of an allegation by any government or governmental agency including the CBI of criminal wrong-doing against the press or the media (which enjoys constitutionally guaranteed press freedom), whenever the CBI files a criminal complaint (an FIR) not of its own but only on the basis of information supplied by a third party, it must in furtherance of press freedom guaranteed under Article 19(1)(a), first inquire from the owners/promoters of the company running the press or the media concerned what it has to say in the matter before conducing raids on its premises and on premises of those in charge of the press or media and before filing a criminal complaint on the basis of such information. This it must do, not as a matter of courtesy or favour, but as a matter of constitutional obligation.

In the present case, Prannoy Roy assures me that he and NDTV have a complete answer to each and every statement made in the letter of April 28, 2017 (headed “confidential and privileged”) addressed by Sanjay Dutt to the CBI and which is a letter reproduced in full in the FIR filed by the CBI on June 2, 2017, and that he Prannoy Roy has never had an opportunity to deal with its contents.

However, this is not the place or occasion to debate whether NDTV has or has not committed an offence as alleged in the complaint letter dated April 28, 2017 of Sanjay Dutt to the CBI.

But the events immediately preceding the latter, on the much publicised raids on NDTV, are the more significant:

(a) On June 1, 2017 on a television programme of NDTV when Sanjoy Hazarika was speaking and the official BJP spokesperson Mr Sambit Patra interrupted him and Sanjoy Hazarika asked whether Sambit Patra had the right to interrupt, the response by: Sambit Patra was: “I interrupt people only on NDTV and I do that because NDTV has an agenda and I need to do that.”

(b) At this the anchor asked Mr Patra to leave or apologise.

(c) Mr Patra: “Why should I leave? I will expose the NDTV agenda. I should expose you and your TV’s agenda.”

(d) The anchor replied that to use such kind of language and make that kind of an accusation was unacceptable.

(e)  But Mr Patra persisted and said, “I will expose it till the end of this debate” at which the anchor said, “I am not continuing this debate with you any longer.”

(f)  It was after BJP party spokesman Mr Patra’s accusation on live TV on June 1, 2017 that the CBI raids took place on June 5, 2007 at Prannoy Roy’s residence in Delhi, at his home in Dehradun and Mussorie and at the NDTV office in Delhi and financial and accounts offices of NDTV.

I urge you to consider this sequence of events – they must worry you as they have worried me. Pratap Bhanu Mehta, in an article in the Indian Express two days ago, said “Once the Press called all politicians cheats, the political class simply turns the table on them by calling them all ‘Presstitutes’.  And the result has been a wholesale de-legitimisation of the Media.”

We are meeting here to prevent further de-legitimisation of the media by condemning the unexplained raid on NDTV and the filing of an FIR by the CBI only on the basis solely of information given in a complaint dated 28th April, 2017 by Sanjay Dutt, Director, Quantum Securities Pvt. Ltd., in a confidential and privileged communication to the CBI as to events that are said to have taken place in 2008-2009 on the basis of which CBI had filed an FIR before the CBI Court on 2.6.2017 for Adjudication – admittedly without ascertaining from NDTV the truth or otherwise of the facts alleged in the complaint letter dated 28-04-2007.

But all this pertains to the NDTV case.

When there is a single-party majoritarian government as there is in the present time and in the present day (as there was it must be remembered in the years when Mrs. Indira Gandhi was Prime Minister and for a while when Mr. Rajiv Gandhi was also Prime Minister) – a similar situation had prevailed and there were similar attacks on the freedom of the Press.

The press and the media supported by an independent judiciary are the only safeguards to an open democracy.

Again the question as to what has all this to do with the Press generally – it all pertains only to NDTV? – is the sort of query to which one of the most effective answers was given long long ago.

It was in a poem written by a German priest Martin Niemoller (12892 to 1984) and it was about the cowardice of German intellectuals following the Nazis rise to power and subsequent purging of chosen targets group by group.  This poem is now enshrined in the Holocuast Memorial Museum in New York:

“First they came for the Communists, and I did not speak out –
Because I was not a Communist.

Then they came for the Trade Unionists, and I did not speak out–

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out–
Because I was not a Jew.

Then they came for me

and there was no one left to speak for me.”

NDTV apart, we may contemplate today whether the blessings of a free press are really worthwhile?

There are several views on this but those I like best are:

First the sophisticated one, given by our own Supreme Court way back in 1950 – the year of birth of our Constitution (when electronic media was not thought of) – Justice Patanjali Sastri, for five Justices: himself and Chief Justices Kania, and Justices Mahajan, B.K. Mukherjee and Das in a Constitution Bench decision in Romesh Thapar’s case, spoke eloquently about the right of free speech and expression in our Constitution and then added:

A freedom of such amplitude might involves risks of abuse.  But the framers of the Constitution may well have reflected, with Madison who was the leading spirit in the preparation of the First Amendment of the US Constitution that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits” (Quoted in Near v. Minnesotta, 233 U.S. 607 at 717-8).

The other answer is not so sophisticated.  It was given by an experienced political figure – a man who later became our president: it is a story of long ago but bears repetition.

It was at the time when my good friend Arun Shourie, was the Editor of the Indian Express.  He had written an article critical of some action of President Zail Singh, and Gianiji was so upset that he had Shourie summoned to Rashtrapati Bhawan for a dressing-down.  Shourie went meekly (Arun, when he writes, roars like a tiger, but when he speaks he is the most soft-spoken, almost like a lamb).

Arun went and called on Gianiji and to his surprise, the Rashtrapati showing all his pearly white teeth, simply smiled, and embraced him and began exchanging pleasantries.

“Shourie Sahib Hal Chal Kya hai?” – (‘how are you’, and the like.

The secretary, who it was that had curtly summoned Shourie, then whispered anxiously into the Presidential ear: “Sir, you are supposed to get angry with him.”

At which Zail Singh responded – typical of the man – “Arre unko likhne do – padta kaun?” (‘Let him write, who reads him anyway?’)

That is perhaps a more pragmatic answer to the occasional abuses by the press of its privileges.

But let me conclude with a message conveyed in one final story. Mario Cuomo, was a governor of New York for many years – he was a wily politician like Gianiji. He once addressed a prestigious body the New York Press Club, soon after the New York Times in an editorial had accused him, of exercising political patronage as Governor through his law firm run by his son.

Cuomo spoke about Press Freedom and this is what he said when speaking of the First Amendment in the Constitution to the United States:

“The Founding Fathers knew precisely what they were dealing with.  They had a press.  And the press of their time was not only guilty of bad taste and inaccuracy, it was partisan, reckless, sometimes vicious.  Indeed, the founding fathers were themselves often at the point end of the press sword They knew the dangers. They knew that broad freedoms would be inevitably accompanied by some abuse and even harm to innocent people. Knowing all the odds, they chose to gamble on liberty. And the gamble has made us all rich and happy. Overall, the press has been a force for good – educating our people, guarding our freedom, watching our government – challenging it, goading it, revealing it, forcing it into the open”.

I suggest then that on this day we adopt Governor Cuomo’s message and “gamble on liberty”. There is no other democratic way.

Fali Nariman is a senior lawyer