[Vinod Dua Case] "Violence Not A Sine Qua Non For Sedition, There Can Be Public Disorder Without Violence": Mahesh Jethmalani Tells SC

"I'd like to point out that this gentleman has a leaning against the government," submitted Senior Advocate Mahesh Jethmalani before top Court yesterday, appearing for the complainant, who had lodged an FIR against Journalist Vinod Dua.

Dua's has sought quashing of FIR filed against him on charges of sedition for his expressing opinions on his Youtube Channel.

A Justice UU Lalit - led bench took up the case for hearing on Friday in the post lunch session.

Jethmalani argued that Dua made false statements that Govt. did not have enough covid testing means without any backing to them, making allegations without any substance in a widely viewed broadcast.

Jethmalani: "Supply chains got disrupted due to blockage of roads"... where did he get this from? This is actually quite the contrary. Where was this blockade. What he said has been prohibited by not only the Press council but also by the DMA, pointing to the Indian Penal Code.

While pointing out that talking about possible riots is similar to inciting riots, Jethmalani argued that Dua was trying to incite riots by showing that there was a food shortage when there was none, because of road blocks, when there were none. Jethmalani added that Dua dissuaded people from going to quarantine centres for treatment, often comparing them with detention centres. 

Jethmalani: "There is no doubt about the fact that incorrect reporting & fake news caused mass migrations of labour during this pandemic".

Next, the Senior Counsel argued that Dua urged people to come on the streets and observe civil disobedience just like people were out on the streets in USA, despite the lockdown.

Jethmalani: Dua has asked people to raise their voice, come out on the streets and be violent like Americans have become, despite the lockdown. This man has tried to exploit a gigantic pandemic. He is a fly-by-knight operator who deserves to be investigated.

While focussing on the statements made by Dua on his youtube channel, Jethmalani argued that the order made by the top court on March 31 prohibiting spread of fake news was violated by Vinod Dua.

Next, he went on to explain the scope of Section 153 of the IPC in terms of the present case. "His attention was malignancy and the intention to cause a riot," he said. He then elaborated on the applicability of section 505B to the present case by adding that even if Dua did not incite riots, he incited "Unlawful Assembly". At this juncture, Justice Lalit observed, "Unlawful Assembly is at the heart of it, to do something illegal. A peaceful demonstration is not an unlawful assembly. That is the Gandhian concept of Peaceful Demonstrations."

The bench also added that the corollaries which were drawn by Dua in his show with America had little to do with the pandemic and more to do with the death of George Floyd.

While elaborating on the context of "intention to create public disorder," Jethmalani argued that Violence in itself though was not a sine qua non for sedition. "There can be Public disorder without violence," he said.

While reading excerpts from the Kedarnath Judgment, he submitted that if acts or speech cause disturbance of law and order or violence, sedition would be attracted.

Jethmalani: Inherent in the legal concept of rioting is the incitement to violence.
Dua has used the word "riot" not once but in several episodes.

— Live Law (@LiveLawIndia) September 18, 2020

To conclude, Jethmalani submitted that in the context of the pandemic, Dua should have been twice as careful before make bald and baseless statements.

Following this, Additional Solicitor General SV Raju made submissions on behalf of the Union. He told the court that the broad points of his submissions would be as follows:

1. Even if one cognisable offence is made out, it is sufficient as far as the quashing is concerned;
2. Journalists are to be treated like ordinary citizens;
3. On lack of territorial jurisdiction, FIRs cannot be quashed and neither can the police deny lodging it due to lack of territorial jurisdiction.

While elaborating on his first skeletal argument, the ASG argued that when a cognisable offence is made out, then even an "attempt" would be a cognisable offence.

ASG: Actual disobedience doesn't have to take place. An attempt made is enough. Even if offence is not committed, but an act of instigation, an act of abetment is a cognisable offence.

Justice Lalit, at this juncture said to the ASG, "So you are saying that even if one cognisable offence is made out, please don't quash the FIR?"

ASG responded, "The IO's locus is imperative before charge is framed. No one has a locus to decide which offence applies and what doesn't before that".

Next, ASG Raju began elaborating on his second argument and said that, "Journalists are not professionals, for a person to be a professional, there has to be a relationship with a client."

The bench will take up the case for further consideration on September 24. ASG SV Raju is expected to continue his arguments.

Case Background:

On July 7, top court directed the Himachal Pradesh police to file status report in a sealed cover with requisite details within a week in the ongoing investigation against Journalist Vinod Dua on charges of sedition.

The bench had also orally observed on the said date that once the details of investigation are placed before court and if the court is satisfied with the journalist's contentions, the Court will quash the FIR "straight away".

"If we are satisfied that contention raised by petitioner is correct, we will quash the FIR straight away", observed the Court, posting the matter to July 15. The interim protection from arrest, granted on June 14, has been extended till the next date of hearing.

Dua is facing FIRs from multiple states, including the most recent ones in Maharashtra and West Bengal.

An FIR was registered against Dua in Shimla, Himachal Pradesh whereby he was summoned by the Shimla Police in connection with a sedition charge levelled against him by local Bharatiya Janata Party leader Ajay Shyam.

Senior Advocate Vikas Singh argued on behalf of Dua and stated that his client was being harassed for exercising his constitutional right of Freedom of Speech.

On June 14, following Directions were passed by the Bench;

a) Pending further orders, the petitioner shall not be arrested in connection with the present crime;

(b) However, the petitioner in terms of the offer made by him in his communication dated 12.06.2020, shall extend full cooperation through Video Conferencing or Online mode; and

(c) The Himachal Pradesh Police shall be entitled to carry on the investigation including interrogation of the petitioner at his residence after giving him prior notice of 24 hours and complying with the Social Distancing norms prescribed during Covid-19 Pandemic.

The bench had then refused to stay the investigation, despite fervent pleas by Senior Advocate Vikas Singh, who appeared for Dua.

Singh said that the FIR was a "harassment" for airing views unpalatable to the government.

"If what Dua said is sedition, then only two channels can function in the country", he submitted.

The summons by Shimla police came two days after the Delhi High Court stayed an FIR filed against Dua for allegedly spreading fake news through his YouTube show on communal violence in Delhi in February. The FIR filed in Shimla is also related to the show.