The Supreme Court on Tuesday, 19 May, rejected a request by Republic editor in chief Arnab Goswami, to transfer the investigations into the cases against him for spreading communal hatred to the CBI from the Maharashtra Police.
On 11 May , Justices DY Chandrachud and MR Shah had reserved their judgment on the pleas by Goswami, to transfer the FIRs filed against him regarding his shows on the Palghar lynching and Bandra migrant gatherings – he had also asked for the cases to be quashed as they were allegedly an attempt to silence him as a journalist.
In the judgment by Justice DY Chandrachud, the apex court today emphasised the importance and standing of freedom of the press but noted this was not "absolute". As a result, the court declined to quash the main FIRs against Goswami, though it said he could follow the regular process of approaching the Bombay High Court under Section 482 of the CrPC to do so.
However, as there were multiple identical FIRs against Goswami regarding the Palghar lynching in various states, the court agreed to quash all of those except the one currently being investigated in Mumbai.
On the issue of transferring the case from the Maharashtra Police to the CBI, the judges held that the police have the right to investigate these cases, and that this case did no satisfy any of the grounds for ordering a transfer. The judgment goes on to say:
"The displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI."
In the meanwhile, Goswami's interim protection from arrest has been extended for another three weeks during which time he can seek an appropriate remedy.
Chilling of Free Speech or Preventing Spread of Communal Hatred?
Goswami had filed petitions relating to both the FIRs after they’d been lodged against him, seeking their quashing. On the first day of hearing, on 24 April, the apex court had stayed all the FIRs regarding the Palghar lynching in states outside Maharashtra, while granting Goswami interim protection from arrest.
The second date of hearing, on 11 May, had seen him ask for the quashing of both FIRs, but after the judges indicated this request should be made to the Bombay High Court, his lawyer, senior advocate Harish Salve, request that the investigation be transferred to the CBI instead.
The hearing, conducted via video conferencing, saw Salve, representing Goswami, allege that this was a case of “one political party targeting a journalist.” He also noted with alarm that one of the police officers who had interrogated Goswami had now tested positive for COVID-19, questioning the bona fides of the investigation process, and that this kind of case could have a chilling effect on free speech.
Salve argued that the nature of the FIRs regarding Goswami’s show about the Palghar lynching – where he had made allegations against Congress President Sonia Gandhi – showed that it was an “arm-twisting tactic”, and that the 12-hour long interrogation conducted by the police was unnecessary.
He noted that Goswami had “made serious allegations against the local police” in his programmes (a point which had been raised in the Maharashtra government’s application to the court), and so said he would not have a problem if the cases were transferred to the CBI for investigation.
This led to a sharp exchange between senior advocate Kapil Sibal, representing the State of Maharasthra, Solicitor General Tushar Mehta, and Salve. Sibal contested the transfer of the case to the CBI, alleging this meant the investigation would be in Goswami’s hands as a result.
The Solicitor General objected to this statement, and Salve said this showed Goswami had been “caught in the crossfire” between the Centre and the state.
Sibal defended the way the probe was being carried out by the Mumbai Police, arguing that Goswami was not harassed in any way, that he had been asked a set of consolidated questions when interrogated by the police, and had not been allowed to use his phone or work during that time like any other accused person.
He accused Goswami of communal hate-mongering and said that he stigmatised people by way of sensationalising things. “He is indulging in pure communal violence,” he added, according to LiveLaw.
Senior advocates Abhishek Manu Singhvi and KV VIshwanathan (the latter representing Irgan Abu Bakhar Sheikh, who’d filed the complaint against Goswami for his Bandra show), supported Sibal’s arguments.
Solicitor General Tushar Mehta said that this was a “peculiar case”, where the accused had no faith in the police, and the police had also come to the court to “insulate” its investigation. He said he found the idea of a citizen being investigated for 12 hours “disturbing”, and concluded that the best solution would be to transfer the case to an independent agency if the judges found that a prima facie offence was made out.