Press in Chains :- A legal analysis of Arnab Goswami v Union Of India

Author- Adv. Anchal Agarwal

A journalist has to be the voice that acts as a mediator between the People and the Government. But journalism has fallen victim to economical pressures and in many cases death threats to stalwart journalists who have become victims to power ideologies, political battles and ideology gimmicks.    

        In this regard let us analyse the judgement of the Hon’ble Supreme Court pronounced on May 19,2020; bench headed by Justice D Y Chandrachud and order of Bombay High Court in the case of  Republic TV Editor-in-Chief, Arnab Goswami who was booked under Sections 153, 153 A, 153 B, 295 A, 298, 500, 504, 505(2), 506, 120 B and 117 of the Indian Penal Code, accused of making provocative comments on the Palghar lynching incident during his news show on April 21, 2020.

On 16th April, a vigilante group lynched three persons including two Hindu Sadhus in Gadchinchle village, Palghar district, Maharashtra. It was alleged that the incident took place in the presence of numerous police officials (which fact was initially suppressed).

A news telecast of the same incident took place on Arnab Goswami’s channel, Republic Bharat on 21st April 2020 where he reprehended Congress President Sonia Gandhi and questioned her silence over the incident and whether she or the Congress party would have kept quiet if Maulvi or Padri was killed. He also referred Smt.Sonia Gandhi as Antonia Maino multiple times. This broadcast led to the lodging of multiples FIRs and criminal complaints against Mr. Goswami (the petitioner) in different States of India as well as in the Union Territories of Jammu and Kashmir for alleged communalization of Palghar lynching incident.

Subsequently, Goswami moved the Apex Court invoking it’s jurisdiction under Article 32 of The Constitution. The Apex Court quashed all the other identical FIRs against Goswami in different States and Union Territories except for the one lodged in Nagpur (which stood transferred to Mumbai by the earlier order of Supreme Court with the consent and on the request of Goswami). The court considering the views in it’s judgement of TT Antony v State of Kerala, observed that:

• A second FIR or a fresh investigation on the basis of the same cause of action and against the same accused would constitute an “abuse of the statutory power of investigation”. Rather in such cases High court’s power can be invoked under Section 482 of Criminal Procedure Code or under Articles 226,227 of the Constitution.
• All other information made orally or in writing after the commencement of the investigation disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Criminal Procedure Code.

The Apex Court is entrusted with a constitutional duty to protect the fundamental rights of citizens (enshrined under Article 32 of the Constitution). The articulation of views on Goswami’s television shows which he anchors is in the exercise of his fundamental right to speech and expression under Article 19(1) (a). But this fundamental right is not unfettered and comes with reasonable restrictions provided under Article 19(2) of the Constitution. However, the right of a journalist under Article 19(1)(a) is no higher rights than right of a citizen to express and speak. But, journalistic freedom cannot be chained by allowing a journalist to be subjected to multiple complaints traversing multiple States and jurisdictions.

It is quite clear that the target of Goswami’s attack was primarily Smt.Sonia Gandhi and the Congress party. His language was also quite acerbic and vicious and it may be construed as an act of defaming the Congress party and it’s President. But the Apex Court taking it’s view of the law laid down in case of Subramanian Swamy v Union of India, rightly excluded the offence of defamation from the purview of investigation of the present FIR because as per settled law, in case of criminal defamation neither can any FIR be filed nor can any direction be issued under Section 156(3) of Criminal Procedure Code. It is only a complaint which can be instituted with the Magistrate by a person aggrieved (in this case by Ms.Gandhi) under Sections 499 and 500 of Indian Penal Code. Neither of these conditions were satisfied.

Subsequently, Goswami urged the Apex court for transfer of the probe to Central Bureau of Investigation, raising doubts on the impartiality of Mumbai police. The contention of Goswami that the length of the investigation and the nature of the questions addressed to him and the CFO during the interrogation must weigh in transferring the investigation is untenable. Thus, the Court rejected the plea seeking transfer to CBI.

• The Court relied upon it’s ruling in Romila Thapar v Union of India, wherein it was held that “accused does not have a say in the matter of appointment of investigating agency“. The Court has time and again reiterated that the transfer of an investigation to the CBI is not a matter of routine. This is an “extraordinary power” to be used “sparingly” and in “exceptional circumstances“. The precedents of this court emphasise that so long as the investigation does not violate any provision of law, it must be left to the discretion of the investigating agency to decide the course of investigation. Therefore, if such routine transfers to the independent agencies take place for the investigation, it would render meaningless the extraordinary situations that warrant the exercise of the power and would shroud the public confidence in the normal course of law.

The Apex Court held that Goswami has an equally efficacious remedy available before the High Court. It 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 of Criminal Procedure Code, there is no reason to by-pass the procedure under the same. There are no exceptional grounds or reasons to entertain this petition under Article 32.

Recently, the Division bench of Bombay High Court has stayed the FIR against Goswami and said no prima facie case has been made out. The Division bench observed that there was no mentioning of either the Muslim community or to the Christian community. It concluded that “in such circumstances, it cannot be said that any offence has been committed by the petitioner of provoking rioting or promoting or attempting to promote, on the grounds of religion, disharmony or feelings of enmity, hatred or ill-will between different religious groups which is prejudicial to the maintenance of harmony between different religious groups or which disturbs or is likely to disturb public tranquility, thus prejudicial to national integrity”.

Thus, on an overall consideration, bench is of the view that on the face of it the FIR does not make out commission of any criminal offence by the petitioner and has suspended all further proceedings. Since, it is apparent, that the petitioner in exercise of right under Article 19(1)(a) is not immune from investigation into the FIR and is answerable to legal regime, we, the people of republic and democratic society should behold that freedom of press is highly essential as it acts as a watchdog of three pillars of democracy i.e.  the legislature, the executive and the judiciary. India’s freedom will rest safe as long as journalist can speak to powers without being chilled by the threat of reparation.