Cannot Have The Spectacle Of A Damocles Sword Hanging Over A Journalist's Head While Conducting Public Debate; Bombay HC [Read Order]

The Bombay High Court on Tuesday observed that we cannot have a damocles sword hanging over the head of journalist while conducting a public debate and suspended proceedings in two FIRs filed against Arnab Goswami for allegedly communalizing the coverage of Palghar mob lynching incident and the incident regarding gathering of migrants outside Bandra station during lockdown.

Division bench of Justice Ujjal Bhuyan and Justice Riyaz Chagla noted-

"We cannot have the spectacle of a Damocles' sword hanging over the head of a journalist while conducting a public debate. India is now a mature democracy. Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets. Subscribing to such a view would stifle all legitimate discussions and debates in the public domain."

Senior Advocates Harish Salve and Mlind Sathe appeared on behalf of the petitioner Arnab and Senior Advocates Kapil Sibal and Raja Thakare for the State.

Salve referred to the facts of the present case and submitted that the transcripts of the telecast would have to be read as a whole, in other words, in its entirety. There should be no cherry picking of sentences from here and there and then say that this sentence is communal and therefore an offence of provoking or inciting communal disharmony is committed, Salve said.

Salve admitted that the language used by the petitioner in the two broadcasts "might have been sharp" and a view may even be taken that it was in bad taste or defamatory. But it does not make out a case of committing offence under sections 153, 153A, 153B and 295A IPC.

On the other hand, Sibal after reading out various portions of the transcripts relating to the two broadcast forming the subject matter of the two FIRs, contended that prima facie it shows commission of offence of trying to provoke or incite ill-will or hatred or animosity towards the Muslim community. Also, the attack on Smt. Sonia Gandhi is not on account of her being President of the Congress party but because of her being a Christian and that is why the petitioner had accused her of seeking approval from Italy which is pre-dominantly a Christian country, Sibal argued.

At the outset, the bench examined the allegations regarding the show telecast on Republic TV in relation to the Palghar mob lynching incident and said-

"Prima facie, it appears that petitioner as a media journalist had questioned the response or rather the alleged non-response of the Congress party and its President Smt. Sonia Gandhi to the killing of two Hindu saints juxtaposing this with the question as to whether the Congress party or Smt. Sonia Gandhi would have kept quiet if any Maulvi or Padri was killed. Thereafter the petitioner made allegations against the foreign origin of Smt. Sonia Gandhi.

It is quite clear that the object of or the target of the petitioner's attack was primarily Smt. Sonia Gandhi and the Congress party. There was no mentioning of either the Muslim community or the Christian community. It would be too far fetched to say that two religious communities were involved in the debate. As a matter of fact, there was no reference to the Muslim community or to the Christian community."

Moreover, Court noted that the debate centered around a very sensitive subject i.e., killing of two Hindu Sadhus-

"Petitioner had highlighted the fact that this killing had taken place in a state where the Congress party was part of the ruling dispensation.The crux of his questioning or statements was relating to the response of the Congress party in general and its President Smt. Sonia Gandhi in particular to the unfortunate incident. What is deducible is that the petitioner had accused the Congress party and its President of having a communal mindset, of being communal in their response or rather in their silence vis-a-vis the unfortunate incident. However, if the transcript together with the first information are read as a whole, we do not find any statement made by the petitioner which can be construed to be against the Muslim community or Christian community."

Court 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.

The bench reasoned-

"Neither any statement nor the conduct of the petitioner can be said to have been made deliberately and with malicious intention to outrage the religious feelings of any class of citizens of India or insulting any religion or religious beliefs of that class of citizens. A view may be taken that the language of the petitioner was quite sharp and vicious; it may also be construed as an act of defaming the Congress party or its President. But as pointed out by the Supreme Court, the offence of criminal defamation would be excluded from the purview of investigation of the present FIR because the said offence can only be taken cognizance of by a Magistrate on a complaint, that too, instituted by the person aggrieved."

Furthermore, Court said that it cannot also be overlooked that the present FIR was part of multifarious FIRs/complaints lodged by Congress party members and supporters in diverse jurisdictions, all total 15, relating to one and the same incident i.e., broadcast by the petitioner on April 21 on Republic Bharat.

Referring to Sibal's contention that Arnab had questioned why gathering of migrants took place outside a Masjid, even though they gathered outside Bandra station, Court said that Arnab had already clarified this statement on the show wherein he said that there was no question of targeting any community.

"It was a fact that the incident had taken place outside the Jama Masjid but there was no question of any religion. He further clarified by saying that if the same incident had happened outside the Siddhivinayak temple or any other temple, he would have said the same thing and asked the panelists not to bring religion in every issue", Court said.

Finally, the bench concluded-

"We cannot have the spectacle of a Damocles' sword hanging over the head of a journalist while conducting a public debate. India is now a mature democracy. Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets. Subscribing to such a view would stifle all legitimate discussions and debates in the public domain."

Thus, after considering various judgments of the Supreme Court and submissions on behalf of both Arnab and the State, the bench admitted the petition for hearing and directed the office of the Attorney General of India be notified regarding the challenge to vires of sections 153A and 153B(1) IPC. All further proceedings in the two FIRs will remain suspended and no coercive action shall be taken against Arnab until the petition is disposed of.

Click Here To Download Order

[Read Order]