May 20, 2020 4:43:47 am
“India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal” and “free citizens cannot exist when the news media is chained to adhere to one position,” the Supreme Court said on Tuesday.
The court confirmed its interim order quashing all but one FIR against Republic TV Editor-in-Chief Arnab Goswami over a TV show on April 21, wherein he questioned Congress president Sonia Gandhi over the lynching of two sadhus and their driver in Palghar in Maharashtra.
Ruling on a clutch of petitions, a Bench of Justices D Y Chandrachud and M R Shah said “all other FIRs in respect of the same incident constitute a clear abuse of process and must be quashed”.
The SC said Goswami could approach the High Court to avail of further remedies, and extended the protection from arrest for three more weeks.
The court said that “Article 32 of the Constitution constitutes a recognition of the constitutional duty entrusted” in it “to protect the fundamental rights of citizens” and added that “the exercise of journalistic freedom lies at the core of speech and expression protected by Article 19(1)(a)”.
“The petitioner is a media journalist. The airing of views on television shows which he hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a)”, the Bench said.
The Bench, however, added that “the exercise of that fundamental right is not absolute and is answerable to the legal regime enacted 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”, it said “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 court recalled Israeli historian Yuval Noah Harari’s words that “questions you cannot answer are usually far better for you than answers you cannot question”.
The court said that any reasonable restriction on fundamental rights “must comport with the proportionality standard, of which one component is that the measure adopted must be the least restrictive measure to effectively achieve the legitimate state aim”.
“Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method…”, it said. The Bench flagged the fact that in the various complaints filed in relation to the April 21 incident “the language, content and sequencing of paragraphs and their numbering is identical”.
The court turned down Goswami’s plea to quash a subsequent FIR in connection with another TV show on April 29, regarding his comments on the migrant commotion outside Bandra station on April 14.
Goswami had sought transfer of the probe to CBI stating he was interrogated for nearly 12 hours, that the CFO of the channel was also questioned, and that irrelevant questions were put to them. He also contended that since he had levelled allegations against the state government’s failure to adequately probe the Palghar case, there was a conflict of interest in allowing Mumbai Police to investigate the case.
But the court said that the “power” to transfer an investigation to CBI is “extraordinary”, and is to be used “sparingly…in exceptional circumstances”.
The Bench noted that it had earlier transferred the FIR regarding the April 21 show in Nagpur to Mumbai with Goswami’s consent, and added “the petitioner now seeks to pre-empt an investigation by the Mumbai Police. The basis on which the petitioner seeks to achieve this is untenable. An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in regard to the investigating agency”.
“The line of interrogation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under investigation/interrogation… The contention of the petitioner that the length of the investigation or the nature of the questions addressed to him and the CFO during the interrogation must weigh in transferring the investigation cannot be accepted. The investigating agency is entitled to determine the nature of the questions and the period of questioning,” the court said.
Solicitor General Tushar Mehta had referred to a plea by the Mumbai Police seeking to restrain Goswami, and backed the request to transfer the probe to CBI.
The SC dismissed the Mumbai Police’s plea, but added “we are unable to accede” that the plea would make it necessary to transfer the investigation to CBI.
“The investigating agency has placed on the record what it believes is an attempt by the petitioner to discredit the investigation by taking recourse to the social media and by utilising the news channels which he operates,” the Bench said.
“Social media has become an overarching presence in society. To accept the tweets by the petitioner and the interview by the complainant as a justification to displace a lawfully constituted investigation agency of its jurisdiction and duty to investigate would have far-reaching consequences for the federal structure.”
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