“The searches carried out by Delhi Police at The Wire’s office could have been termed as ‘fair investigation’ only if there was proof that the news portal had destroyed or tampered with evidence,” Former Patna High Court Judge and (presently) Senior Advocate at the Supreme Court Anjana Prakash told The Quint on Tuesday, 1 November.
A day prior to that, on Monday, The Wire claimed that Delhi Police had deployed personnel at the homes of its editors – Siddharth Varadarajan, MK Venu, Sidharth Bhatia, and Jahnavi Sen – and "devices were seized."
The Delhi Police also conducted a search at the news publication's office and one of their lawyers were alleged to have been "physically pushed out by the officers at that site."
Meanwhile, Delhi Police Spokesperson Suman Nalwa told The Quint that the police went to the editors' homes for "investigation,” in connection with a complaint filed against the news portal by Bharatiya Janata Party's IT Cell chief Amit Malviya.
Another senior police officer told The Indian Express, that they had "only taken electronic devices" and after these were "checked," an "enquiry would be conducted."
But Justice Prakash’s observation is simple: she pointed out that the police had indeed skipped steps under the guise of ‘ investigation.’
“They’ve skipped steps. They could have first done a preliminary investigation based on the charges mentioned in the FIR. A search cannot be your preliminary inquiry,” she said.
Following Monday's 'search', that comes in the aftermath of the weeks-long fiasco between The Wire and Meta, The Quint spoke to legal experts to understand the ‘legality’ of the Delhi Police's operation.
The Wire-Meta Fiasco: A Lowdown
The Wire had published a series of reports claiming that, in keeping with an 'XCheck' programme, Instagram (which is a part of the larger Meta empire) would take down any posts that BJP’s Malviya flagged.
However, the news portal took down the Meta reports (as well as some former ones pertaining to the tech company and a three-part series on Tek Fog published earlier) after questions were raised about their authenticity.
They also issued an apology acknowledging that their "internal editorial processes, which preceded publication of its Meta stories, did not meet the standards that we set for ourselves and our readers expect from us."
Despite this, Malviya on 29 October filed a complaint, and the Delhi Police conducted raids two days after the FIR was registered.
The Wire even filed a police complaint against researcher Devesh Kumar, who had worked on these stories.
The FIR against The Wire has been filed under the following sections of the Indian Penal Code (IPC):
420 (cheating and dishonestly inducing delivery of property)
468 (forgery for purpose of cheating)
469 (forgery for purpose of harming reputation)
471 (using as genuine a forged document or electronic record)
500 (punishment for defamation), read with 120(B) [punishment for criminal conspiracy] and 34 (common intention)
'If the Intent of Probe Was Fair...': Justice Anjana Prakash
Further elaborating on her point about the police ‘skipping steps’, Justice Prakash said that an alternative way, if the "intention of the probe was fair", would have been to ask them to reproduce the stories they had taken down.
They could then analyse the stories based on the charges mentioned in the FIR.
“One of the charges mentioned in the FIR is forgery. How can you search someone’s premises without knowing how the forgery was committed? I don’t understand the point of this,” she said.
‘Loopholes Like This Have Been Debated’: Justice Pradeep Nandarajog
Former Chief Justice of the Rajasthan and Bombay High Courts Pradeep Nandarajog, on his part, pointed to the limits of the law in the case.
Despite the seemingly "suspicious" intention behind the searches, Justice Nandrajog told The Quint that, by themselves the searches were "not technically wrong".
This is because once an FIR is registered, the police can conduct the search. He went on to explain:
“There are limits to the law. Loopholes like these have been a matter of debate for decades now, simply because those in power can exploit the limits of the law."
‘Coercive Police Searches Disproportionate...’: Internet Freedom Foundation's Apar Gupta
Apar Gupta, advocate and co-founder of The Internet Freedom Foundation, took to Twitter to point out how the “use of coercive police searches” was “disproportionate to any breach of journalistic ethics.”
“I fully acknowledge that The Wire committed negligence and published a false report. This is not the point here, and if we introspect honestly we know it. A criminal prosecution is about "fixing them,” he said on Twitter.
“The registration of a criminal case and now the use of coercive police searches on the houses of the editors of The Wire deserves wide and unequivocal condemnation. Criminal prosecution is disproportionate to any breach of journalistic ethics or even law in the facts,” he added.
‘They Deserve Better’: Senior Supreme Court Advocate Salman Khurshid
Senior Supreme Court Advocate Salman Khurshid, while expressing support for The Wire’s editors, said that “they deserved better than the midnight knock.”
“The Editors of the Wire, Siddharth Varadarajan and M K Venu are two to be proud of. They were misled into a story for which they have expressed regret. They deserve better than the midnight knock. We stand by them,” he took to Twitter to say.
'Malafide Intention, Violation of Established Rules': Journalists' Bodies
Meanwhile, DIGIPUB News India Foundation released a statement saying:
"For the police to carry out immediate and arbitrary search of editors' homes, based entirely on a private complaint of defamation filed by a spokesperson of the ruling party, smacks of malafide intentions."
The statement added, "Moreover, the danger of these searches being used as an excuse to seize and duplicate confidential and sensitive data held by The Wire cannot be dismissed."
Further, the Editor's Guild of India called out the Police for "violating established rules." The organisation said:
"The haste with which the police searches were carried out at multiple locations is excessive and disproportionate, and is the matter of a fishing and roving enquiry."
"The police search and seizures in violation of established rules and in intimidatory manner is also alarming," it added.
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