Multiple FIRs will muzzle free speech

Arnab Ranjan Goswamy's petition on 24th April 2020, has contributed a legal principle of media law that multiple FIRs mean muzzling of free speech and abuse of authority and hence invalid. There should be only one investigation at the location of accused journalist, in case of Arnab, Mumbai.

Lawyers of the Congress pointed out to the court that aggressive and violent expressions by Arnab at high pitch would disturb peace, harmony and pit one religion against the other. They opposed privilege status to journalist on the ground of political bias, saying it could be "misuse of broadcasting licence", vitiating the atmosphere during the lockdown and instigating enmity, and "people like him should be stopped from saying things to protect the integrity of the country". Justice Chandrachud rightly expressed his disinclination towards placing curbs on the media.

Defending the editor of Republic TV, the advocate argued that the idea behind multiple FIRs is to "muzzle the press" and said that a defamation complaint can only be filed by defamed. The SC bench of Justices D Y Chandrachud and M R Shah clarified that complaints will be investigated clubbing all FIRs into one in Mumbai. Court has found the need to ensure that the criminal process does not assume the character of a vexatious exercise by the institution of multifarious complaints founded on the same cause in multiple States; the need for the law to protect journalistic freedom within the ambit of Article 19(1)(a) of the Constitution; and the requirement that recourse be taken to the remedies available to every citizen in accordance with the Code of Criminal Procedure 1973.

Several FIRs alleging offences under Sections 153, 153A, 153B, 295A, 298, 500, 504 and 506 of the Indian Penal Code 1860 will be investigated together. Ministers and other Congress leaders have filed criminal cases in States where either the Congress or non-BJP parties are ruling, including Maharashtra, Jharkhand, Telangana, Rajasthan and Chhattisgarh as well as Jammu and Kashmir. The future FIRs on the same episode are also stayed. Relying on three of its judgments, the Supreme Court agreed that filing FIRs at several places amounted to abuse of power.

In TT Antony vs State of Kerala [(2001) 6 SCC 181], the Supreme Court said that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the code because an investigation would have already started and further complaint would amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the code.

While in majority of democracies globally decriminalising the defamation, our Supreme Court upheld its constitutionality in Subramanian Swamy vs Union of India [(2016) 7 SCC 221] saying it was a reasonable restriction. Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal, who had been charged with criminal defamation challenged validity of criminal defamation.

In Satinder Singh Bhasin vs Government of NCT of Delhi & Ors [(2019) 10 SCC 800] Supreme Court granted interim relief holding against multiple filing of FIRs on same cause of action.

Cleared Investigation

Though multiple FIRs are clubbed, SC refused to quash investigation through single FIR at one place. While Arnab can claim it as his win with 'protection' from arrest for three weeks, the other side has a reason to celebrate as the investigation sustained leaving no scope for any further challenge. It can be called Arnab's self-goal. Now he has to run for anticipatory bail and wait for charges. As the disputed statement is already on 'record' the investigators may not need to toil much to collect evidence, the facts or documents about lynching in Palghar and August 21 episode's video clips can form the basis of charge-sheet.

The anger filled words of Arnab Goswamy may now turn into legal allegations challenging 'freedom' of his high pitch expression. The (s)words used by him against the Congress Party president are potential enough to culminate into charges. He shouted:

"In India, being a Hindu and wearing the orange colour has become a sin. I ask that if a Maulavi had been killed, would people be silent? Would Sonia Gandhi, who hails from Italy, be quiet? Today, she is silent … I think she is happy in her heart that saints are being attacked in a State where she has formed the government. She will send a report to Italy saying that 'Where I formed government, I am getting saints killed,"… "Could she remain silent had they been "Muslim preachers or Christian saints".

It is now Sonia's silence versus Arnab's verbal violence, police and prosecutors need to answer: "Is it a fair criticism or crime of defamation?"

A very relevant factor is that, both the attackers and victims in Palghar lynching are from same religion. It is officially stated by Maharashtra government that the attackers are neither from Muslims nor Christians. Giving communal colour and provoking hatred based on religion of the parties in such lynching attacks is complained as dangerous abuse of freedom of expression. It cannot also be considered professional, to castigate persons without waiting for truth about the religion of attackers.

The Constitutional guarantee under Article 19(1)(a) is available to all citizens, and journalists, whether they are biased, paid by rulers or corporates with political lenience or run campaign in favour of one party or against another. Bias or hate or campaign or trumpeting is no ground for attacking the freedom of press. Whether Arnab, who exhibits his favour for BJP or Siddharth Varadarajan, who strongly condemn the polices of BJP government, their freedom has to be protected by the State, if not, by the courts. Press Council also must come to the rescue of freedom of journalists irrespective of their stand towards the government.

It is fundamental right of a person not to be harassed by double jeopardy, i.e., more than one prosecution for one offence, under Article 20(2) of Indian Constitution. Political parties should realise that multiple FIRs are futile and indicate abuse of legal process. Physical threats or attacks on journalists reflect lumpen character, and equally useless besides being counter-productive. A journalist should be defended on points of multiple FIRs and physical attacks.

Though it looks like a paradox that the courts are being asked to give unbiased judgment on such unethical consequences of one-sided media campaigns, freedom of press should be protected, because it makes democracy functional and facilitates communication of ideas of all kinds.

(The writer is former Central Information Commissioner and Professor at Bennett University)