New Delhi: “We are aware of fundamental rights and don’t want freedom of press to be stifled,” Justice L. Nageswara Rao said on Wednesday as the three-judge Supreme Court bench he heads granted interim protection to The Wire and its reporters from any coercive action by the Uttar Pradesh police over three FIRs filed in response to stories published by the website.
The Foundation for Independent Journalism, the non-profit company which runs The Wire, had moved a writ petition along with three of its reporters, seeking quashing of the FIRs on the grounds that none of the offences listed in the FIRs was even made out.
The FIJ, represented by senior advocate Nitya Ramakrishnan, submitted that the police was attempting to violate constitutionally guaranteed press freedoms by filing criminal charges over factual news reports that the authorities did not like.
The court granted two months interim protection to allow The Wire to approach the Allahabad high court for relief, with Justice Rao noting that in the case of Shillong Times editor Patricia Mukhim, he had agreed to quash the FIR against her after the Meghalaya high court had refused to do so. “You can file an application before the high court and we can grant you some interim protection,” Justice Rao told Ramakrishnan. “Because what will happen is, this will open a Pandora’s box. We cannot take up all the cases here”.
The other members of the bench were Justice B.R. Gavai and Justice BV. Nagarathna.
The three criminal cases filed against The Wire and its reporters are by the:
1. Rampur police for a story which reported the grandfather of farmer Navreet Singh saying on camera that he believed his son had died of a bullet injury and not an accident
2. Ghaziabad police for a story on the assault on an elderly Muslim man in which a video was made of his beard being forcibly cut and where he said he was also made to chant slogans
3. Barabanki police (Ramsnehi Ghat) for a story on the demolition of a local mosque by the authorities in apparent violation of a high court stay order
The charges invoked in these FIRs included 153, 153A and 153B (promoting enmity between different groups) and 505 (‘statements conducive to public mischief with a view to inciting disaffection’).
While the Rampur police sought and accepted the statements of The Wire‘s editor and reporter by email, repeated summons by the Barabanki police demanding that The Wire‘s reporters and founding editor present themselves at Ramsnehi Ghat police station to answer questions was the immediate trigger for the Supreme Court petition.
Prior to moving the court, The Wire‘s editor also drew the attention of SP Barabanki, Yamuna Prasad, to the UP Chief Secretary’s 2017 circular to all investigation officers instructing them to collect the statements of accused persons by Speedpost or email. Prasad, however, insisted that The Wire’s journalists would have to make the journey to Barabanki.
In its writ petition, The Wire quoted from a recent order of the Supreme Court in a matter brought before it by two Andhra Pradesh-based media platforms alleging abuse of the law by the police in the state:
“the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation.”
The Wire said it was “similarly aggrieved by the abuse of the criminal process and more particularly the abuse of Sections 153, 153A, 153B, 295-A and 505 IPC. This Hon’ble Court has recognised the need to interpret Sections 153A and 505 IPC in the context of news media as noted in the order quoted above. The prayers in this Petition are that the [three] FIRs and prosecutions may be quashed, coercive action on the basis of the … FIRs stayed and some guidelines laid down to prevent victimisation of news media.”
While Justice Nageswara Rao said the Supreme Court did not want to “create a separate avenue for journalists to come to this court directly under Article 32 for quashing FIRs”, he granted The Wire permission to withdraw its petition and approach the high court, and stayed coercive action for two months.
“Editors, reporters, and journalists published by The Wire have been named as accused in several FIRs across the State of Uttar Pradesh,” the petition said. “No part of the matter published is even remotely an offence, although it may be unpalatable to the government or some people. No unrest ever resulted or was likely to result on account of the concerned news reports. The fundamental assumption in these FIRs is that The Wire and its journalists have reported what they have with the intent to foment communal disharmony. To posit reporting – especially the verbatim claims of citizens who are or say they are victims of crime – as tending to create disharmony or as an inherently criminal act is most pernicious, and this mode of criminalising expression deserves relief and remedial measures from this Hon’ble Court, else no journalist will be able to report fearlessly and the media will become caught in the criminal process for simply doing its job.”
Turning to the content of the three stories, the petition notes that most of the information contained was on record or otherwise public. “These events were not imagined by [The Wire‘s] journalists, or fiction reported as fact. The grievances of persons the reporters spoke to, are reported as quotes and not as assertions. As far as possible the alternate view of the administration is sought, and, if given, published. This is neither circulation of rumours nor provocation of disharmony. Yet, the State attributes criminality and divisiveness to the reporting of social wrongs and events – more than it does to such wrongs and events themselves. Such acts of the State pose a direct threat to not only freedom of expression, but also the rule of the law. This is policing of the media, and therefore calls for intervention at the highest level.”
The petition says that it is not for the police to sit in judgment over the media for its reports. “The media is meant to ventilate the problems of ordinary people, the nature and effect of administrative policy, and differing world views. Yet, if the media is going to be subjected to the criminal process for doing just this, and Sections 153, 153A, 153B and 505 IPC are used as a means, then it is essential that the parameters of these provisions be defined in a manner that they do not exercise a chilling effect on Fundamental Rights. Indeed, these provisions which deal with actual offences against communal harmony are presently being subverted and misused (such as in the present FIRs) and used to gag any media reportage on incidents that may have a communal/religious/political angle. In these circumstances, it is essential that the contours of these offences particularly in the context of action against journalists/media houses be clearly set out, so that they are not used by police authorities to muzzle constitutionally protected speech.”
