Where Free Speech Is A Path To Lose Personal Liberty: After 70 Years Of Constitutional Democracy

None is bothered about those innocent, not very popular, common journalists and protestors who were arrested for talking against the establishment or protesting against Government policies like the Citizenship Amendment Act (CAA). In recent times, several Journalists have been charged under the sedition law, the Official Secrets Act, for incitement to riots and under the Unlawful Activities Prevention Act (UAPA). Left wing thinkers, poets and academicians are arrested without any convincing evidence or charge, and are denied bail by the Courts.

Why Sudha Bharadwaj, a professor should be denied bail? Why Varavara Rao, a teacher and poet should suffer incarceration without much to suspect him? It is the same Mumbai Police along with NIA that denies bail to these academicians. Why there is no condemnation of the repeated arrests and harassment of a good doctor named Kafeel Khan? Why some are happy about it. Why is it ok for Umar Khalid to rot in jail?

A journalist in Yogi Adityanath's Uttar Pradesh was booked and accused of criminal conspiracy for exposing how a government school was serving roti and salt for mid-day meals. A journalist in Tamil Nadu was arrested for his Covid-19 coverage. Another journalist in Gujarat was arrested and charged with sedition merely for a speculative story that the state may get a new Chief Minister. A Kerala born journalist was arrested when he went to Hathras to report the notorious gang rape.

The Union Home Ministry is opposing dropping of sedition charges against journalist Vinod Dua for critically analysing Modi Government. Parashar Biswas, a journalist in Tripura was beaten up after criticising Chief Minister Biplab Deb's threat to the media for their reporting on his handling of Covid-19 pandemic.

Some journalists in Kashmir were detained and assaulted by police during the Covid lockdown. The newspapers are shut down in Kashmir, Internet was shut down for months, leaders are kept in house arrest, habeas corpus writ petitions are pending unanswered or not scheduled.

Personal liberty & Affordability

Personal liberty is equated with the Right to life under Article 21 of our Constitution. This constitutional right cannot depend on the persons asking for it and personalities arguing for them or personalities deciding it. It should be on principles of liberty as 'established by law', which is the crucial expression used in the repository Article of Constitutional Rights- Art 21.

Whether the personal liberty depends on affordability to reach the Apex Court and hire advocates who have greater rapport with establishment and judges?

Pre-trial arrest: Draconian power

If the purpose of arrest is served without arresting him, any person should not be arrested. This is the principle of personal liberty. The power of pre-trial arrest is the draconian power in the hands of police and their political bosses, which is misused, abused, and unused for their own vested interests. Hence every pre-trial arrest must be reviewed in judiciary.

Once FIR is filed and police pursues it with local courts, it is difficult to get the FIR quashed. Whether there is any evidence or not, threat of pre-trial arrest looms large and bail is the only hope journalists and protestors look for. None knows whether prosecutors have enough evidence to convict the accused, but even before the charge-sheet is filed hundreds or thousands languish in jails without bail. This is the modus operandi of all the Governments, states or centre. The power is politically misused to suppress the voices against their Governments. The media and civil society discuss only popular accused but refuse to acknowledge the breach of personal liberty of many.

Why Supreme Court does not have time for them? Why their cases do not come up before the liberal judges and famous lawyers? How many could afford the top lawyers who could secure bail from any court or the Top Court?

Criminality in Arnab's case

One must see the criminality in Arnab Manoranjan Goswamy's case that led to his controversial arrest. It was not for his journalistic TV shows but for non-payment that led two persons of a family to commit suicide. Investigating and arresting Arnab in such a criminal case should be a step in enforcing the rule of law. He has no immunity just because he is a journalist, though alleged to be pro-BJP campaigning anchor of a TV channel. At the same time, he would not lose his liberty on the grounds of his bias for the ruling party.

Arnab shouted for arrest of Rhea Chakraborty, alleging that she was responsible for abetment of suicide of the film actor, Sushant Singh Rajput. And it is a paradox that he was arrested for the similar charge. He is an accused anchor against whom there is an FIR, suicide note and primary evidence that supports allegation of abetment to suicide of two persons. He demanded arrest of Rhea, a friend of Rajput who committed suicide, though there is no suicide note or complaints or any piece or trace of evidence. It became a political issue for Bihar Elections.

The case against Arnab is for abetment to suicide under 306 of the Indian Penal Code. Mr. Anvay Naik, then Managing Director of Concorde Designs Private Limited, and his mother Kumud were found dead in their home in Kavir village of Alibaug in May 2018. Naik was found hanging in Alibaug and his mother was found strangled to death. Later a suicide letter was recovered naming the owners of three companies — Arnab Goswami of Republic TV, Feroz Shaikh of IcastX/Skimedia and Neetish Sarda of Smartworks — saying they owed Naik's firm Rs 83 lakh, Rs 4 crore and Rs 55 lakh, respectively. Anvay Naik purportedly wrote in the note that he and his mother decided to take the extreme step as the owners of the three companies did not clear the payments. In April 2019, the Raigad Police said there was no evidence in the case and a local court allowed the case to be closed. But the Uddhav Thackeray-led Maha Vikas Aghadi government comprising the Shiv Sena, Nationalist Congress Party and the Congress, reopened it. The question again is whether closure and reopening of case against a politically biased journalist are genuine or vitiated by political bias?

"There was always this question as to whether the government had been too hasty in burying this case," Shekhar Gupta said. After Naik's daughter met the Home Minister, the latter asked CID to reopen the case. Besides CID investigation, the police had authority of local court to reopen the case. In the words of Shekhar Gupta, "So a prominent face in the media, who might have been the darling of the establishment earlier, was now no longer the darling of the establishment in the state now. That is the nub of the politics here".

Giving it to CBI

It will be interesting to hear the Union Ministers saying the state police is harassing one journalist. At a point of time it appears that this journalist is caught in feud between ruling party at centre and state. Arnab Goswami and Republic TV made the Sushant Singh Rajput case into a very big story and it played into Bihar's politics. The central government and the Bihar government, which is a BJP-allied government, intervened in the case. A criminal case is booked in a state different than where the crime is committed. Murder case is registered in Bihar for the crime in Maharashtra. Shekhar Gupta also pointed out that in this case, the Centre and the state together asked the Supreme Court if the case could be transferred to the CBI and the Top Court granted it. The central agencies, CBI and Narcotics Control Bureau (NCB) came into play then. Actor Rhea Chakraborty and her brother were arrested and denied bail for a long time.

Selective listings?

Supreme Court Bar Association (SCBA) President Dushyant Dave wrote a letter to the Secretary General of Supreme Court lodging strong protest on selective listing of Arnab's bail appeal. Kapil Sibal pointed out plight of Kerala journalist Siddique Kappan, who was arrested while he was on his way to Hathras, Uttar Pradesh, to report on the alleged gang-rape and murder of a woman in Hathras. The Supreme Court did not hear Kappan's petition and asked him to approach the trial court. Arnab is privileged to get his case listed and secure interim bail.

Chandrachud's order

Justice Chandrachud, while granting bail to Arnab made certain comments, which we do not find in the interim order. He lamented high courts not giving bail, leaving people languishing in jail for months, which had burdened the Top Court with bail cases. Indian Supreme Court takes heavy burden of cases every year compared to any top court in any democratic country. Most of them are bail cases. One must agree with the question posed by Justice Chandrachud; "If constitutional courts don't protect liberty, who will?"

His final judgement is reserved. That might explain some legal nuances of his conclusions. His interim order is simply given out brief facts and concluded with interim bail. His oral observations are staple food for media next day. He observed that he disagreed with Goswami's position that police cannot investigate the case further if a closure report has been filed in a case where there is an offence but evidence has not been traced, which we might find in his final draft of judgment.

At the same time, Justice Chandrachud shared his "deep concern" at the growing trend of states "targeting" those who follow a different ideology than that of the government. He recalled a case from West Bengal where a girl, who tweeted that the coronavirus was not being dealt with, was issued a police notice. "They did this, saying we will show you reality," he remarked. He also said that Arnab Goswami cannot be punished or treated inhumanly merely because his style of presenting news does not suit the state government. He advised: "Forget the way he screams and yells. I do not watch this news channel, but what concerns me is the value ascribed to human liberty. We are deeply concerned about it. Our democracy is extraordinary resilient, and governments must ignore all this. This is not the basis on which elections are fought".

"If constitutional courts do not interfere today, then we are travelling the path of destruction, undeniably. We must send a message to the High Courts today that please exercise your jurisdiction to uphold personal liberty," Justice Chandrachud said. This is also not part of the interim order. We do not know about final judgment.

Why do you watch his TV?

Another of his comment widely reported is: "You do not watch a channel if you do not like it. I myself prefer to cuddle with a good book," while responding to Kapil Sibal, the Senior Advocate who appeared for Maharashtra Government and the State's Police. He was right when he said judges should ignore the twitter comments on judgments.

While this case of abetment to suicide is not related to Arnab's journalistic profession, and another case pertaining to his resistance while arresting, all other cases arise out of his TV shows and their controversial content, which rooted in certain offences under IPC and Cable TV laws.

Assault on arresting officers?

One case of alleged assault on woman constable while resisting arrest was booked against Goswami under the Indian Penal Code, under the provisions relating to assault or using criminal force to deter a public servant from discharging duty, intentional insult to provoke breach of peace, and criminal intimidation. The FIR named his wife, Samyabrata Goswami, their son and two others. Arnab Goswami has, in turn, alleged that the police assaulted him.

Cases on TV shows

Five other cases concerning reports and TV shows have been registered against Goswami and Republic TV by the MVA government so far. BJP is leading the mantle of opposition in Maharashtra and championing the cause of personal liberty and press freedom with limited reference to Arnab, who openly voices for their political causes.

a) Mumbai Police filed FIR against senior editors and newsroom staff of Republic TV for airing news about a "revolt" within the force against its commissioner Param Bir Singh under sections of the Police (Incitement to Disaffection) Act, 1922, and claims the editors and staff "attempted to incite disaffection" among members of the police.

b) Mumbai Police Commissioner Param Bir Singh told media on 8 October that a "racket" of private channels allegedly manipulating their Television Rating Points (TRPs) to get more revenue was discovered against the owners of Republic TV, Fakt Marathi and Box Cinema.

c) Many filed FIRs against Republic TV's coverage of the Palghar mob lynching incident on 16 April, wherein three Mumbai residents — two Hindu sadhus and their driver — who were on their way to Silvassa in the Union Territory of Dadra & Nagar Haveli, were lynched by residents of Gadchinchale on the suspicion that they were thieves. The Mumbai Police sent a show cause notice Arnab Goswami, saying his comments could create communal disharmony and hatred between Hindus and Muslims, and asking why a bond of good behaviour should not be taken from him.

d) There are 15 FIRs filed mostly by Maharashtra Congress workers against Arnab's allegation against Sonia Gandhi that she is getting Sadhus killed and reporting to Italy. Then activist Nilesh Navlakhs invoked sections of the Cable Television Networks (Regulation) Act, 1995, against Goswami for alleged stirring up communal hatred and divide on his news channel.

e) In another show Goswami questioned gathering of a crowd of migrant workers on 14 April outside Mumbai's Bandra Railway Station demanding transportation to return to their homes during Covid19, breaking norms of physical distancing etc. Police booked FIR against Goswami for trying to spread hatred against the Muslim community and booked him under various sections of the Indian Penal Code.

Right wing politicians do not condemn arrests of journalists and protestors and others hesitate to condemn arrest of Arnab. The response of civil society to onslaught on free speech and liberty is also divided on political and communal lines.

Whether governments are really interested in rule of law or freedom of speech. The hypocrisy on either side is equally notorious, which was exposed by Arnab's arrest. If every person's personal liberty does not have same value, we cannot call ourselves a rule of law society. If Constitution of India does not help a person or citizen to secure personal liberty from pre-trial arrest for vehemently criticising draconian policy of a Government, we cannot describe ourselves as democracy with 70 years of Constitutional governance.