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AP HC contradicts itself

Two different orders on media freedom on two days

The High Court of Andhra Pradesh had made two decisions on two days. One order contradicts the spirit of the other. While on 13 September 2020, the AP High Court stood solidly by the media calling the actions of AP government and police anti-Constitutional, its order on 15 September 2020 had let down the media which was asked not to report the FIR in a case in which a former advocate general was a petitioner. Prof. Madabhushi Sridhar Acharyulu evaluates both the decisions of the same court, taken within two days, impacting the media and leaves the reader to draw her/his conclusions

Stifling voice of media: Judiciary stands by freedom of speech

The High Court of Andhra Pradesh gave a general pre-restraint order on September 15, restricting the media from not publishing anything about an FIR, which attracted criticism that judiciary caused shrinking of freedom of speech. But, before blaming the High Court, one should read its judgement on September 13 protecting a journalist from false cases slapped by the CID. It is a severe condemnation and admonition of police. The High Court has called it Kakistocracy.

Are we, now, living in a democracy or Kakistocracy? Asked the Andhra Pradesh High Court, when a journalist’s office was ransacked, and a false case was slapped against him for uploading an audio clip of leaked conversation from the CM’s office criticizing the rule of the Jaganmohan Reddy Government.

The dictionary meaning of expression ‘Kakistocracy’ is ‘a system of government that is run by the worst, least qualified, and/or most unscrupulous citizens’. The word is derived from two Greek words, kakistos (worst) and kratos (rule), with a literal meaning of government by the worst people. (Evans, Rod L (2011). Thingamajigs and Whatchamacallits: Unfamiliar Terms for Familiar Things. Penguin. p. 87.)

Attack on hostile media

The AP Police was upset when ‘Telugu One.com,” a news portal, has uploaded an audio clip, which had a leaked conversation between one employee of the CM’s office, and another, commenting that AP people’s suffering was the worst among all the States in India, and that the Government had failed to address the proliferation of Covid 19 virus.

The news portal did not add any comment or conclusion, but released it under the caption, ‘leaked call recording from AP CM Office.’ All of a sudden, a team of CID police officers attacked the headquarters of news portal in Hyderabad and seized dozens of computers and other electronic equipment, which was described by the High Court as “nothing but exhibiting over enthusiasm by the officials to please the political party in power.”  

Audio clip of TeluguOne.Com

Hearing a writ petition for quashing of the FIR against the managing director of a popular web portal ‘Telugu One.com,’ the Justice M. Satyanarayana Murthy on  13 September 2020, called it “abuse” of power.  

The state CID Police slapped criminal cases under Sections 188, 505 (2), and 506 of I.P.C. besides Section 54 of the Disaster Management Act, 2005, based on alleged circulation in YouTube, a false and fabricated audio clip against the Chief Minister for the purpose of causing annoyance, inconvenience, anger, insult, injury, criminal intimidation, hatred and ill will against the government, which created panic in the minds of the people that state is unsafe during the COVID Pandemic. Additional DGP alleged that it misled the people to hate the CM.

Absence of material

The High Court found, among papers submitted, no details about the statement or its circulation, rumour content or alarming news based on religion, race, place of birth, residence, language, caste, or community.  The court held that there was no material to show feeling of enmity, hatred between different groups, as police failed to show existence of any group at all.

Hence, HC found no offence u/s 505(2) was constituted and said: “The CID being the instrumentality of the State, working under the thumb of the State, for the reasons best known to them by abuse of process of law, and registered this crime against the petitioner.”

The bench found no threat to the public or causing alarm that could make an offence u/s 506 IPC. “Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section.” It described it as another abuse of law.

The same is the ‘material’ for crime under section 188 of I.P.C. (disobedience to order of public servant), the HC said as there was no ordinance promulgated by any public servant, the question of its disobedience does not arise. As per Section 195(1)(a)(i) of Cr.P.C., it is mandatory to have a written complaint from the public servant. In the absence of such complaint, its compliance is not possible, and hence it would vitiate the prosecution.

Abuse of DM Act against a Journalist

Another offence charged was under Section 54 of the DM Act, which deals with the offence of creating a false warning as to disaster or its severity or magnitude, leading to panic. This is punishable with imprisonment up to one year or with fine, and it is a non-cognizable offence, which means there shall be a complaint.

The Section 60 of the Disaster Management Act, says no court shall take cognizance of an offence under this Act except on a complaint made by (a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or (b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his or her intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid. There is no such complaint at all.  The HC held that registering crime against a journalist under Section 54, DM Act is a grave illegality by abusing the process of law.”

After each allegation under different provisions collapsed, the High Court admonished the state police for registering a crime without any material allegation to constitute cognizable offence, which resulted in harassing the public in the guise of investigation that could lead to anarchy and that such acts of the police created an impression that the people are living in a “Kakistocracy“, though they are living in a democracy.

The High Court stated that it was surprised at this kind of FIR, which reflected the lack of minimum knowledge about law, giving the impression that the department is manned by an officer without any administrative control.

The judge reminded police of their duties, saying: “Everyone knows about the unpleasant relationship between the police and community, which creates difficulties during investigation. Police expect that all difficulties in society should be solved by the police, but the basic duty of police is the protection of human life, liberty and property and enforcement of law and order.”

Fear of Police

The High Court observed that increasing crime, growing pressure of living, rising population, labour disputes, problems of students, political activities with the call of extremists, enforcement of social and economic legislation etc. have added a new dimension of police tasks in the country. The lack of public co-operation in police work makes it difficult to discharge their function efficiently, the bench said.

“It is common fact that law-abiding citizens have greater fear for police than offenders and do not hesitate to use violence, undue influence to secure their escape, threats etc. On the other hand, normal people avoid contact with the public and prefer to keep away from law courts even suffering or loss of legitimate claims, rather than reporting matter to the police for their action,” bench added

It has cautioned the police of its duty to protect people and to be scrupulously honest with the investigation and efficient, otherwise innocents get wrongly convicted and guilty would get wrongly let off, and warned against fabricating any evidence during investigation.

The bench opined that filing criminal cases by abusing process of law causes incalculable damage not only to the life and liberty of this petitioner, but also to his business directly violating the fundamental rights under Articles 19 and 21.

The Court stated that it can exercise power to quash the proceedings under Article 226, which is identical to the power under Section 482 of Cr.P.C.  The bench said that unless such acts of the officers are controlled, it may lead to serious consequences causing damage to life, liberty and reputation of an individual.

In another case against TV5 news channel anchor, the CID of AP Police alleged that anchor had possession of certain documents relating to appointment of members to the Executive Council of Universities, and they were stolen from e-file of Secretariat. The Anchor was implicated in a crime under Section 66B of Information Technology Act and Sections 380, 468, 469, and 120B of IPC.

The AP High Court came to his rescue by granting bail on 4 June 2020. The High Court noted that news channel has just telecasted a debate about the appointment of various members of ECs at Universities.

Though the prosecution was contending that the news channel had committed theft, there was no allegation made. Unfortunately, the ‘accused’ were made to attend a police station regularly. The Tv5 claims that it was targeted because of its criticism of policies of the Jagan Government.

This shows that the judiciary is the only institution for the victims of abuse of power to safeguard their personal freedom and the freedom of expression.

The Gag Order on Media: Is it warranted to breach Rule of Law and equality?

On 15 September 2020, AP Government’s ACB filed a First Information Report (FIR) alleging purchase of lands abusing government information. Late in the evening an interim order was passed by the High Court of Andhra Pradesh on the petition IA No…/2020, in WP number 16486 restraining the government from taking any coercive steps, besides staying the further enquiry and investigation.

The High Court has also directed DGP and DIPR of Govt of AP to the effect that no electronic or print news item be published with respect to the FIR NO.08/RCO-ACB-GNT/2020 of ACB, Guntur dated 15.09.2020 until further orders of the High Court. The direction was also given to the Union Ministry of Information and Broadcasting to take steps to inform the relevant social media platforms/houses in this regard.

It’s a surprise. Issuance of FIR, petitioning, hearing and passing of Interim Order gagging the media happened with jet speed . Some media which reported the FIR contents before late evening petition moved, must remove them from their websites. This order came under severe criticism for lack of substantive justification with reasons, blocking FIR, with criminal charges about land deals involving persons in high power, staying even the investigation, for an indefinite period.

The FIR has been held in several judgements to be a public document disclosing a public wrong, which is cognizable, and also supposed to be placed in public domain within 24 hours, accessible under Right to Information to any person, concerned or not. Such an FIR is now inaccessible, not reportable, and not to be commented upon by anybody.

While banning media from reporting it, the AP High Court has also denied the people, their right to know, and liberty of thinking about, thus gagging the media and minds. The order might have been justified if it is for overnight, to be heard next day, after hearing the two sides with further fixation of period of ban. It is not just an interim order. It is instant and immediate order until further orders.

In fact, the content of the FIR was in public domain for about half a day, during which, it might have reached millions, thanks the speed of social media. The order cannot stop the forwarding of documents through WhatsApp, which facilitates circulation in several small and closed groups. All those who know will be compelled to think that it was given to secure the ‘reputation’ of bigwigs named in it. This will not go well and synchronise with the objective of the instant gag order.  This prevention might cause more damage to them than by its publication.

Once an FIR is registered, none has any power to stall the investigation within hours without sufficient justification.

Supreme Court’s self-restraint

On several occasions, the Supreme Court has exercised utmost self-restraint when it was pressed to give gag orders against media. The Supreme Court resisted plea to grant gag order against Bindas Bole episodes called UPSC Jihad, on Sudarshan TV. But on 16th September it felt the need to stop the Hindi television channel from airing future episodes that claim to have unearthed “a conspiracy to infiltrate the civil service by Muslims”. 

No gag order in Tablighi case

On April 13, the Supreme Court Bench led by Chief Justice of India S A Bobde, refused to issue an interim or perpetual order to gag media, to stop the reporting after Nizamuddin Markaz incident related to Tablighi Jamate. (https://www.deccanherald.com/national/wont-gag-media-sc-on-plea-against-reporting-after-nizamuddin-markaz-incident-824855.html)

Power of Courts

The Constitution gave the Supreme Court and the High Court powers to restrict media in addition to the High Court’s power under Section 151 of the Civil Procedure Code. Higher Courts can pass any order to achieve the ends of justice. But it is imperative that courts must justify the gag orders based on the reasonable restrictions. The courts mandated that injunction to block reporting/broadcasting should be resorted to only in exceptional cases.

During the COVID19 crisis, hearing PILs on migrant labour, the centre requested SC to pass an order to“prevent fake and inaccurate reporting whether intended or not, either by electronic, print or social media which will cause panic in society.” But the SC did not oblige.

(https://www.thehindubusinessline.com/opinion/quick-take/deplorable-attempt-to-gag-the-media/article31244760.ece)

Can the courts stop investigation also?

The Constitution under Article 226 provided the High Courts with extraordinary powers to pass any order to achieve the ends of justice. Besides, the Code of Criminal Procedure under Section 482 and Section 151 of the Civil Procedure Code gave the High Court powers to prevent the abuse of the process of any court under its jurisdiction. That is why the interlocutory applications by the former advocate general were moved under Section 151 of the Civil Procedure Code.

The SC said that HC can invoke this extraordinary power to stop investigation if it finds essential to protect delivery of justice. Supreme Court was aghast in Imtiyaz Ahmad v State of UP case in 2012 at the number of cases in the High Courts in which investigation had been stayed though cases were pending for a long time.Supreme Court further said: “stay of investigation is to be passed sparingly only to prevent an abuse of the process and to promote the ends of justice.

Recently, Delhi High Court came to the rescue of journalist Vinod Dua from a false case by staying investigation, after he alleged that he was the victim of a political vendetta. In Imtiyaz Ahmad vs State Of UP and others in 2012, (https://indiankanoon.org/doc/50352079/) laid down three important guidelines when an investigation could be stopped: “(i) such an extraordinary power has to be exercised with due caution and circumspection;(ii) Once such a power is exercised, High Court should not lose sight of the case where it has exercised its extraordinary power of staying investigation and trial; and(iii) High Court should make it a point of finally disposing of such proceedings as early as possible but preferably within six months from the date the stay order is issued.”

Former senior IPS officers filed a PIL on September 2, to stop vituperative coverage by TV channels as if media was trying Rhea Chakroborty and sought temporary postponement of media reporting in this case. Bombay HC advised news channels to show restraint but did not pass gag orders.

On September 10, the Delhi High Court asked Republic TV and its editor Arnab Goswami to show restraint in reporting on the death of Sunanda Pushkar to maintain sanctity of the criminal justice process. Arnab was reminded of his undertaking and asked to follow it, without gagging his media.

The Reliance wanted to stop Indian Express from publishing series of articles SC in 1988 (Reliance Petrochemicals Ltd Vs Proprietors of Indian Express Newspapers, Bombay, decided on 23 September 1988)  (https://indiankanoon.org/doc/1351834/) issued injunction stopping publication till the process of issuing debentures to its stakeholders, because it was pending before SC. Unless there is a clear and present danger to administration of justice and fair trial, court should not restrict publication, the SC said.

In another case a witness contended that his testimony in a case being tried in court, if published would affect his business and reputation, and hence he wanted to prevent such publication. The SC said the right to open justice and concept of open access to judicial proceedings could  be restrained only when it adversely affects the administration of justice. (Naresh Shridhar Mirajkar vs State of Maharashtra https://indiankanoon.org/doc/1643138/ decided on 3rd March 1966)

When SC was hearing a business dispute between Sahara Real Estates Ltd v SEBI, a term of compromise was leaked by a news channel. One party contended that it affected their interests and sought guidelines to control the media. The SC propounded theory of postponing the publication in the interest of fair trial, only when it is found that fair trail was in real danger. (Sahara India Real Estate Ltd vs SEBI of India, https://indiankanoon.org/doc/158887669/ decided on 11 September 2012)

The plain meaning of freedom is that it should be free from prior restraints, which was also agreed to by the Hon’ble Supreme Court, generally. Thus, freedom of speech is not absolute. The judgments referred above explained that even the prohibition of prior restraints is not absolute, because order for postponement of publication can be made only in certain circumstances. At the same time, it was also made clear that even the authority to issue postponement order is not absolute, but subject to certain parameters. 

Not probing a serious allegation like this and not allowing even news reporting about such a serious crime will create two classes persons among the suspected in FIRs: One – some privileged high-profile persons against whom there will be no probe, no publication of any news item about a crime, though a pubic wrong, and Two- whole lot of general members of public who will be publicly named for small crime like chain snatching or theft or battery.

Is it justified?

Only ground the former Advocate General put forward was that case was foisted due to political vendetta. There are no other substantive grounds for this kind of order. Without going to merits, why media cannot report the content of the FIR as a news event? Should not people know the allegations of land deals against a person, simply because he held high office in previous regime?

Such a complaint needs to be probed and the FIR should have been placed in public domain, reported in media like in any ordinary way that happens in routine. Such a disclosure and discussion will enthuse more persons, who are defrauded in this method to come forward and complain. If the probe fails to prove the allegation, the suspected persons could come out without any blame. It is not proper for accused to request the courts either totally stop or to supervise the investigation which is exclusive job of trained police investigators.

FIR is a public document

The Delhi HC, on December 6, 2010, had held that the FIRs should be uploaded online within 24 hours of its registration. Delhi High Court declared that a copy of the FIR can be given under the Right to Information Act unless it is shown in strict terms as to the effect that giving such information would hamper investigation. The High Court was ruling on the writ petition filed by the Police before the High Court challenging the order of CIC where the police had been directed to provide a copy of FIR relating to Balta incident. http://legalperspectives.blogspot.com/2010/01/copy-of-fir-can-be-obtained-under-rti.html 7th Jan 2010. A Division Bench of Allahabad High Court in Shyam Lal Vs. State of U.P. and others,: 1998 Crl.L.J 2879 has also ruled that the First Information Report is a public document. There is no bar in Chapter XXI of the Criminal Manual for supply of a certified copy of FIR. In Ajay Chaudhary v. State, in Writ Petition (Cri) No.468 of 2010, the Division Bench of the Delhi High Court has held that FIR is a public document and, therefore, a person, who is in custody of the same has the liability to give a copy thereof to the persons interested.  Journalist can report FIR Madras High Court held in Mohammed Israth vs T.S.Haneefa on 14 June, 2017, https://indiankanoon.org/doc/39942524/ that the FIR was a public document, within the meaning of Section 74 of the Indian Evidence Act, under its Section 76, every public officer is bound to give to such persons a certified copy on payment of legal fees thereof. This is considered limited RTI that was ensured in 1872 itself by British regime. In this case a journalist was subjected to a case of defamation for publishing contents of FIR. Madras High Court said that in their role as Journalist/News Reporter only reported the filing of the complaint, the registration of the FIR and the investigation thereon by the Police officials as a news event. Court asked how the such actions could be said to be defamatory of the plaintiff. In paragraph 14(b) of its order, HC said: As per the law aforesaid declared by the Supreme Court, the contents of FIR, irrespective of whether published in a newspaper as a news event or not, are in public domain. Once the Police itself, as per law declared by the Supreme Court is required to publish the FIR, I fail to see how the defendant editor/publisher of the newspaper or as complainant, can be proceeded against in an action for defamation for publishing the contents thereof.  

Madabhushi Sridhar Acharyulu is the Former Central Information Commissioner and Dean, School of Law, Bennett University. The views expressed above are personal.

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