Recent FIRs Against Journos Make No Sense. Stop Being Surprised
From a legal standpoint, none of these cases is likely to succeed. But law and logic aren’t the point here.
Freelance journalist Mandeep Punia has been in jail since 30 January, because of an FIR filed by a police inspector who claims the journalist was trying to break through police barricades at the Singhu border, and was dragging a police constable towards protesters.
The Wire’s Siddharth Varadarajan and Ismat Ara have been booked by the Uttar Pradesh Police over a report by Ara on the death of farmer Navreet Singh in Delhi during the tractor rally on 26 January – because the report includes (along with the police version) the family’s claims that the deceased was shot by the Delhi Police.
The death of Navreet Singh is also the basis for FIRs in no less than five states – Delhi, Haryana, Karnataka, Madhya Pradesh, and UP – against Congress MP Shashi Tharoor and six journalists, including India Today’s Rajdeep Sardesai and The Caravan’s Vinod K Jose.
They had tweeted initial claims that the protester had been shot by the Delhi Police before deleting these tweets as further clarity came in. All the FIRs include offences of trying to provoke a riot and making statements to cause fear/alarm to the public. Many even go so far as to include offences of sedition.
It’s not difficult to find holes in these FIRs against the journalists. In Punia’s case it is the fact that the FIR was registered seven hours after the alleged incident, at 1:20 am in the night, despite him being detained back when the alleged clashes between the police and protesters happened.
And of course, that he was a journalist covering what was going on at the time. That is still not a crime if one goes by the law.
With Varadarajan and Ara, there’s the fact that the story in question is a responsible piece of journalism, including not just the family’s claims that the deceased farmer was shot, but also the police’s denial of these claims and the details of the post-mortem report that indicate there was no gunshot wound. The FIR was initially only against Varadarajan for his tweet sharing Ara’s report.
Since the report didn’t endorse the family’s claims or hide the police version/post-mortem report, again, it is not a crime if one goes by the law.
As for the FIRs against the other six journalists, the intent requirement for the offences in those FIRs is difficult to make out given they deleted their tweets when further clarity came about the protester’s death.
At the very least, the charge of sedition in those FIRs is laughable, using a colonial era law to criminalise an error in reporting a developing situation.
If one goes by the law on Section 124A as laid down by the Supreme Court, again, at least this offence does not stand.
Groundhog Day: Sedition Edition
Going by the law, however, is the biggest mistake one can make when looking at these FIRs. Because the law is irrelevant here.
We have seen this playbook time and time again. And while this has been a problem under multiple political dispensations, it has been an increasingly common phenomenon in recent times.
Sedition FIRs have been filed against journalists in recent times for the most bizarre and baseless accusations:
- Gujarati editor Dhaval Patel was booked under this stringent provision in May 2020 for an article speculating that the BJP might replace Vijay Rupani as Chief Minister of Gujarat.
- Prashant Kanojia was hit with it for sharing a video (which had already been shared widely) of a woman claiming to be UP CM Yogi Adityanath’s lover even though he didn’t endorse her claims.
- Kishorechandra Wangkhem has been booked and held in jail twice under charges of sedition: First in 2018 for criticising the Manipur CM and Prime Minister Narendra Modi, and the second time in September 2020 for remarking on the feud between the wife of a BJP MLA in Manipur and his alleged mistress.
- Vinod Dua also found himself accused of sedition for his shows on YouTube criticising the BJP in May 2020.
And it’s not just sedition that is used to target journalists. FIRs under other serious criminal offences also abound, without any real logic or basis.
Journalists in Kashmir like Masrat Zahra are booked under the UAPA for doing their jobs. Scroll’s Supriya Sharma was booked under the SC/ST Prevention of Atrocities Act for reporting on the desperate condition of people in Domari, a village adopted by PM Modi – in which one of the people whose story Supriya told, claims she never said she had trouble getting food.
Other new favourites in recent months (thanks to the COVID pandemic) have been provisions under the IPC, the Epidemic Diseases Act and the Disaster Management Act relating to spread of diseases.
That’s what Andrew Sam in Coimbatore and Zubair Ahmed in the Andaman and Nicobar Islands had to face. Along with the standard charge of Section 505, which is slapped against all these journalists – even though the Supreme Court in the Kedar Nath case in 1962 had held that this requires some actual public unrest instigated by them to be applicable.
In none of these cases have any of these journalists been convicted. In fact, scratch that, in none of these cases has the trial against them even progressed, with the police not bothering to file chargesheets even though the investigations are so limited.
In most of them, the higher courts have granted the journalists protection from arrest, or ordered their release on bail, or even quashed the cases against them, because of just how baseless the cases are.
How Do We Address This Elephant in the Room?
The obvious question at this point becomes: Why?
Why keep filing all these FIRs if there is no real logic behind them, if there is little intent to prosecute them, if there is little chance that any of them will actually result in a conviction?
The only explanation which makes any sort of sense is that the police don’t care about convictions or bringing these cases to trial, or about bothering to see if the cases have any merit. Registering the FIRs and opening criminal investigations is the whole point and purpose of this exercise, because the process itself becomes the punishment.
Instead of doing their jobs and questioning those in power, the journalists booked under these FIRs have to now spend time, money and mental energy fighting for bail/anticipatory bail/protection from arrest in the courts. They have to participate in investigations in far-flung parts of the country. They often have to give up their passports and can’t travel.
Most importantly, they now start to think twice before they write anything, with the threat of another FIR a constant sword of Damocles over their heads. Other journalists also start self-censoring to avoid suffering the same fate, whether consciously or sub-consciously.
The more ridiculous the accusations become, the more severe the chilling effect, as journalists realise that even taking care from a legal standpoint is of no use.
All of which creates new complications for journalists and commentators calling out these FIRs as well.
How much sense does it make for a legal journalist, for instance, to keep calling out how these FIRs ignore Supreme Court precedent, when the police evidently don’t care about those precedents?
What is the point of explaining how these arrests violate the right to freedom of speech (including the right to freedom of the press) under the Constitution if the police don’t actually care if those violations end up dooming their case?
This doesn’t mean that articles explaining why these FIRs are ridiculous and inconsistent with the law should not be written. However, it does mean that journalists and civil society have to do more to address the problem. Writing a strong article or putting out a condemnation from a journalists’ association isn’t enough, not anymore.
Journalists will also have to think about actively protesting these kind of arrests and taking a stand, as they have done over Mandeep Punia’s arrest, with several journalists protesting outside the Delhi Police headquarters.
Civil society needs to support such protests and demand more accountability, including through research and reports on the frivolous cases against journalists. Again, this has finally started happening – Delhi-based Rights and Risk Analysis Group published a report last year detailing how 55 journalists had been targeted with criminal cases for reporting on the COVID-19 pandemic, just during the first lockdown.
Other measures may also be required, such as taking this up as an issue with the high courts or the Supreme Court, asking for guidelines on the filing of cases against journalists for their work.
While freedom of the press is not a distinct right in India and journalists are not entitled to special treatment, the Supreme Court has a long history of recognising the bigger picture when it comes to protecting the press, including in recent months when granting reliefs to Vinod Dua, Arnab Goswami, Amish Devgan, and others.
The first step, of course, is to acknowledge that journalists are being targeted, and to stop being surprised when the cases against them make no sense. If the recent spate of baseless cases finally leads to that acknowledgment and spurs some action, then at least there might be some point to them after all.
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