The Bombay High Court on Thursday delivered an important victory for press freedom by quashing an FIR against The Quint’s Poonam Agarwal, which had been filed in relation to a revelatory sting video by her about the abuse of the ‘sahayak’ system in the Army.
The criminal case had been registered under the stringent provisions of the Official Secrets Act, as well as for abetment of suicide, after the death of one of the jawans interviewed by her.
In the sting video, published on 24 February 2017 by The Quint, Agarwal had recorded conversations of several army jawans (whose identities were concealed by blurring their faces), who talked about the menial work they were forced to do as part of the ‘sahayak’ system for officers, with some even accusing the officers of harassment.
Nearly two weeks after the video was published and went viral, one of the jawans interviewed by Agarwal, Lance Naik Roy Mathew, went missing. His body was found on 7 March 2017 at an abandoned barracks in the Deolali camp where the sting was conducted. The body was found hanging in suspicious circumstances.
The bench of Justices Ranjit More and Bharati Dangre quashed the FIR as the offences were not made out even on a prima facie basis, and Agarwal had not done anything that affected the national interest. The court is also reported to have said that the Army had been “vindictive” in the case.
“She (Agarwal) did not have any intention to go and commit an offence. We do not understand why you (Army) are so vindictive,” said Justice More, according to PTI.
What did the FIR Say?
Following the discovery of the body, an FIR was registered on 28 March 2017 against Agarwal as well as former jawan Deepchand Singh. Deepchand, a Kargil war veteran who had lost three limbs during the war, had assisted Agarwal with conducting the sting.
One of the other jawans in the camp filed a complaint with the Nashik police, and the Indian Express reported that the Army submitted an application to the police complaining against Agarwal.
In addition to the accusation of abetment of suicide under the Indian Penal Code (IPC), Agarwal and Deepchand were also booked for offences under Section 3 (spying) and Section 7 (interfering with member of armed forces on duty) of the Official Secrets Act 1923.
The OSA charges were included since the video was filmed in a “prohibited area” – the Army cantonment at Deolali – with a spy camera. The inclusion of these charges made it more difficult to obtain bail and get the case quashed.
The Case in the Bombay High Court
Agarwal had cooperated with the investigation from an early stage, providing the Army and the police with relevant information as requested. Initially, she had been informed by the Army that they would investigate the information brought to light by her. After Agarwal sent the video to the Army’s public relations officer on 27 February 2017, the Army had responded to her the very next day without making any mention of the OSA.
Once the FIR was registered, Agarwal and Deepchand filed applications for anticipatory bail and for quashing of the case. Justice Revati Mohite-Dere granted them pre-arrest bail on 26 April 2017, at which time itself she noted that the offences were not made out on a prima facie basis. Justice Mohite-Dere noted that
“the purpose of the sting operation was to show that sahayaks were made to do menial work like taking dogs for a walk, taking children to schools, driving the wives of officers to parlours, shopping etc, contrary to the circular dated 19 January 2017”.
This was important as it was an early indication that the judiciary didn’t view the video as an attempt to endanger India’s national security or the interests of the State, which would be required to prove charges under the OSA. In fact, Justice Mohite-Dere, while explaining her order, also wrote that “merely because the sting operation was done in a prohibited area would not automatically attract the provisions of Sections 3 and 7 of the Official Secrets Act.”
You can read more about why offences under the OSA and indeed for abetment of suicide were not made out here in The Wire.
The Decision of the Bombay High Court
The quashing application has taken nearly two years to be decided, with the case repeatedly reassigned to different benches. When hearing the matter on 29 August 2018, the judges had questioned how OSA charges could be justified in this matter, and also raised doubts about the authorities’ assertion that Mathew took his own life because of the actions of Agarwal and Deepchand.
During that previous hearing, Live Law reported that the bench in fact said that “The deceased committed suicide because his seniors scolded him and not because of the accused.” This has been the consistent stand of Agarwal and Deepchand for some time.
The quashing petition was argued by advocate Uday Warunjikar, at whose request the judges viewed the video and its unedited raw footage in chambers. The counsel for the Army, Sandesh Patil, had argued against this, and insisted that the accused had committed the offence of spying.
After viewing the footage, the judges disagreed with the contention that the offence of spying was made out. Justice Dangre observed that “Spying has a different meaning. We do not find anything in this case that says the accused persons did something that affected the national interest.”
Petition Against Misuse of OSA
It was always going to be an uphill task to argue that that Agarwal and Deepchand had committed the offences they were accused of.
- Proving abetment of suicide requires the prosecution to show that the accused intended for the deceased to take their own life, something which the judges had identified early on as not being the case.
- The OSA charge of spying required evidence that the video had been recorded and published “for any purpose prejudicial to the safety or interests of the state” – this had been rejected back in April 2017 by Justice Mohite-Dere.
- The other OSA charge of interfering with a member of the armed forces also required the personnel to be “engaged on guard, sentry, patrol or other similar duty”, which wasn’t the case with the jawans interviewed by Agarwal.
The filing of the FIR under these provisions was therefore difficult to understand, and was perhaps why the judges rejected them so strongly. The usage of the OSA in particular was problematic since it makes it more difficult to contest the charges, as described by advocate Manu Sebastian in Live Law here. Using the OSA also has a broader chilling effect on reporting, as argued by Human Rights Watch here.
Poonam Agarwal and Deepchand have also filed a writ petition in the Supreme Court, seeking a fair and impartial investigation into the unnatural death of Lance Naik Mathew and for compensation for his family, as well as directions from the court to prevent misuse of the ‘sahayak’ system.
Considering the impact of the OSA on this case, the petition also asks the apex court to “issue suitable guidelines/directions giving a strict and controlling interpretation to the provisions of Official Secret Act, 1923 to prevent its abuse and bring them in line with the scheme of the Constitution, particularly Articles enshrined in Part III - Fundamental Rights of the Constitution of India.”
The Supreme Court has issued notice in this writ petition in which senior advocate Gopal Subramaniam, appeared along with advocate Prashant Kumar for the petitioners.