Soumya Ghosal, II year of B.A.,LL.B. from NUJS, Kolkata
On November 4th 2020, the Chief Editor of Republic TV network Arnab Goswami was arrested from his house in a matter relating to a 2018 Abetment to suicide case, which had earlier been closed and reopened in May 2020, only at the behest of the State Home Minister. It is to be noted that Goswami has been at loggerheads with the incumbent Shiv Sena government for months, coming for them quietly viciously on prime time news debates. The arrest, then, has been alleged by some quarters of the society as an act of vengeance and an ‘an attack on freedom of speech, and journalistic expression’, with key members of the Union Cabinet comparing the incident to the 1975 Emergency. Goswami was remanded to 14 days of judicial custody. He moved a Habeas Corpus petition in the Bombay High Court. The HC refused to invoke their writ jurisdiction under Art.226, asking him instead to approach the Sessions Court under the Criminal Procedure Code, 1972. Goswami moved the Supreme Court against the said order, acquiring a suspiciously prompt hearing, even while the Court was on vacation, and was granted interim bail in the matter on November 11, 2020.
Article 19 of the Indian Constitution grants to all its citizens the right to freedom and expression, subject to certain restrictions. It is on this tenet that journalistic freedom has been far upheld in this country. This also means that journalists should not be afraid to report anti-government narratives in fear of a witch-hunt. In a different petition filed by Goswami in front of the Apex Court regarding the Palghar lynching case, the Bench observed that India’s freedom will only rest safely as long as journalists can speak to those in power without being chilled by a threat of reprisal. Free citizens cannot exist when the news media is chained to adhere to one position.
However, does that mean that a journalist can report as they please, whatever they please and how they please – to the extent of conducting media trials on their channels? In Navin Jindal v Zee Media Corporation Ltd, the Delhi High Court was posed with the question - whether a media trial would be construed as an interference to the police investigation. The Court answered in the affirmative, pointing that such interference can even lead to contempt of court.
Can such an order of the High Court then be considered against the ethos of journalistic freedom or in lines of censorship? It can be argued not. The Right to Freedom of speech and expression, though constitutionally protected, is not absolute. Reasonable restrictions – such as the prohibition of defamation, and contempt of Court, and adherence to public morality and decency, have been imposed by the virtue of Art 19(2). In-State of Punjab v Gian Kaur, the Apex Court opined that Right to Reputation is a natural right, while in Subramanian Swamy v Union of India, the Court concluded that the right can be traced back to an individual’s right to life under Article 21, making it a Fundamental Right. In the latter case, the court held that in the exercise of one’s right to expression, they cannot impugn on another’s right to life. The same then, cannot be understood to mean “curbing of journalistic freedom”. The restrictions in 19(2) apply to journalists too and, especially in the era of rising fake news, they need to be enforced.
However, the question raised in the present case is - can Goswami’s arrest be indeed considered as an attack on press freedom? Contradicting opinions on the matter have been raised. However, prima facie, it is difficult not to assume the element of vengeance on the State’s part in the matter. Before commenting on the merits of the case, the background between the Mumbai Police and Goswami is important to note. Goswami’s channel appears to have been running a loud campaign against the Maharashtra government and Mumbai police. The Police named Goswami’s channel in a Fake TRP Rating case, the FIR for which was quashed by the High Court, following which the journalist had many colourful remarks raised against the commissioner.
The cause of action for the present case he had been arrested rose in 2018 when an employee and his mother committed suicide due to Goswami not paying their dues and named him in the suicide note. He was investigated for the abetment of suicide under Section 306 of the Indian Penal Code and nothing was found against him, eventually closing the case. It was reopened by the Maharashtra Home Minister in May 2020. As Senior Advocate Harish Salve, appearing for Goswami in front of the Supreme Court submitted, this action of the minister was per se illegal. Furthermore, in Gurcharan Singh v State of Punjab, the Apex court held that to constitute abetment under S.306, the presence of mens rea to aid or instigate the suicide is imperative. The remoteness of the culpable act or omissions rooted in the intention of the accused to actualize the suicide falls short of ‘abetment’. Hence, a case against Goswami should not be made out for abetment. As Salve submitted, if someone who killed themselves due to non-payment of salary by the government names the chief minister in their suicide note, will the CM be arrested? This, coupled with Goswami’s unceremonious arrest at 6 AM from his residence by a brigade of armed officers makes the matter reek of malice and the State’s high-handed use of its apparatus to silence opposers.
Goswami approached the Magistrate’s court for interim bail. The Court, denying the same, remanded him to 14 days of judicial custody. There on, he moved a Habeas Corpus petition in front of the Bombay HC. In a 56-page judgment, the High Court refused to invoke its jurisdiction under Art 226 while there was a remedy under the Criminal Procedure Code. The Court refused to bypass the set procedure, apprehensive that if allowed then it will be used by every petitioner, asking him instead to approach the Sessions Court for bail. However, it failed to answer the moot question in its judgment – whether a prima facie case existed against Goswami? In the Supreme Court, Justice DY Chandrachud opines that the High Court erred in prioritizing procedure over a person’s liberty. When Senior Advocate Desai, appearing for the State of Maharashtra, submitted that Goswami seems to have chosen a forum best suited to him, rather than going to Sessions Court first, as is the rule, J Chandrachud observed that “technicality cannot be a ground to deny someone personal freedom”. Furthermore, even if a case for abetment were to be made out by the High Court, it could not have been a reason to deny bail for an offence under S.306. In the Indian criminal trial, bail should be the norm, and jail the exception.
During the hearing in front of the vacation bench of the Supreme Court, J Chandrachud remarked that the Constitutional courts have to uphold values of liberty and freedom. On the matter of freedom of speech and expression, he remarked that while it is not an absolute, it cannot simply be curbed either – everyone is to be held responsible in the exercise of free speech.
Under such circumstances, it is difficult not to regard Goswami’s arrest as an attack on journalistic expression. The Shiv Sena seems to crack down on critics not by using speech laws, but more serious criminal laws. Given his often pro-BJP, somewhat obnoxious and quite problematic reportage of incidents, his arrest was celebrated by several on social media. Legitimate concerns were raised by members of the Bar and common populace alike at the speed with which his petitions seem to be granted “urgent” status by the Court, unlike several thousand Habeas Corpus petitions which lie before the courts for weeks and months at end. Questions are being raised that while the Court swooped in to protect Goswami’s rights almost instantly, why similar treatment wasn’t meted out to several journalists in detention in Kashmir, or the political prisoners arrested under UAPA. However, notwithstanding any such contention, or whether one agrees with Goswami’s views or not, once the matter reached the courtroom not upholding his rights would have set a dangerous precedent. Protection of the individuals against the State is the utmost duty of the Courts. Government’s high-handed approach to using state apparatus to curb any voice against itself is against the very nature of a democracy, and should not be tolerated against anyone, regardless of how much the individual may be loathed. To quote J Chandrachud on the matter, “ If this is what are State governments are going to do to people who are to be nailed, then the Supreme Court has to intervene.” It is only hoped and expected that the Court will adopt similar promptness and concern for freedom of expression for all those who languish in custody and will treat all animals as equal, and not some more equal than others.