The Uttarakhand Police on 24 February arrested journalist Kishore Ram, claiming he was promoting enmity on the basis of caste.
After examining the First Information Report (FIR) filed by the police and the videos by the journalist that it refers to, however, it appears that the FIR is baseless as Ram was only reporting what was told to him, and the FIR in fact makes misleading claims about what he said and did.
The Editors Guild of India (EGI) on Thursday, 3 March, issued a statement saying it was "deeply disturbed" by the arrest of the journalist, who works with news portal Janjwar Media, and called for his immediate release. "This is extremely distressing that mere reporting on what may very well be caste-based crimes is being cited as grounds for arrest," the EGI statement reads.
Here is what the Uttarakhand Police's FIR against Kishore Ram says, and why its claims are misleading.
Details in FIR
The FIR against Kishore Ram was registered on 22 February at the behest of sub-inspector Anil Kumar at the Pithoragarh police station, based on inputs from the police's social media monitoring cell.
The social media monitoring cell believed that two videos uploaded by the Janjwar Media news portal had the potential to disturb communal harmony.
The FIR claims that in the two videos, Ram repeatedly asked people about their caste and claimed that people from Scheduled Caste communities had been killed by members of 'savarna' caste communities.
Since these videos had the tendency to promote enmity and disturb relations between people of different castes, the Pithorgarh police are of the opinion that Kishore Ram has committed an offence under Section 153A of the Indian Penal Code, and hence booked him under this provision.
He was arrested two days later and remains in custody.
Claims in FIR Don't Match Up to Videos
The FIR includes the links to both the videos that the police took exception to. Both videos remain accessible on Facebook and YouTube, and after viewing them (hyperlinked below), the police's claims do not match up.
The first video, from 18 February, sees Kishore Ram speaking to people in Didihat block in Pithoragarh, where a man had recently been found dead. Men claiming to be relatives of the deceased claim that he had been beaten to death with stones.
When asked by Ram what the possible reason for the alleged murder could be, it is the men Ram is speaking to who suggest that it could be because of the community they belong to. One of them mentions that he was injured as a child for similar reasons.
It is only then that Ram asks for confirmation that the community in question is a Scheduled Caste, and one of the men confirms this (around the 4:50 mark in the video). That man also mentions that the Thakurs and other communities in the area have a problem with people of their community.
Ram then speaks to the widow of the deceased man, and at no point asks her about her caste. After this, he speaks to activists belonging to the Bhim Army who have come to the region, who say they will protest till justice takes place and the case dealing with the deceased's death includes provisions under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
The second video, from 21 February, features Ram speaking to a man in Pithoragarh who alleges that his two minor daughters, one aged 17 and the other aged 15, were taken by some boys for a drive in their car, and were then raped by these boys and abandoned on the road.
At no point in the video does Ram ask the man about his caste, though when summing up the issue in front of the man (around 3:35 in the video), he notes that the family belongs to a Scheduled Caste. No claim is made that the perpetrators belong to a so-called upper or privileged caste.
Since these are the two specific videos cited by the police, the claims made in the FIR have to be matched up to them. Anyone who watches the videos, however, can attest that the claims made in the FIR are not true.
It is pertinent to note that the police have not refuted any of the claims made in the videos. At no point in the FIR is it stated that Ram has made any factually incorrect statement, or misreported what the relatives of the victims have said.
This is perhaps why they have not invoked provisions like Section 505 of the IPC in the FIR, which deal with public mischief caused by spreading a rumour or false statement.
If a journalist is merely reporting what is being claimed by families of victims of a crime, as Kishore Ram did in the videos in question, this cannot be considered a criminal offence in general, as this would violate the freedom of press that is protected under the fundamental right to freedom of speech and expression in Article 19(1)(a).
More specifically, Section 153A, of the IPC cannot possibly apply in this case. The provision punishes anyone who "promotes or attempts to promote, on grounds of ... caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different ... castes or communities".
Reporting on incidents of possible caste-based violence cannot possibly meet the ingredients of the offence, unless the reporter is making false claims, which is not the case here. Otherwise every news report about caste violence would be a criminal offence, which is so absurd that even the Uttarakhand Police can't possibly take that view.
Indeed, they might want to remember how they were hauled up by the Supreme Court for filing a sedition case against the late journalist Vinod Dua. The apex court quashed the FIR against him, which had been filed for videos which included criticism of the government.
It is perhaps worth noting that the only finger being pointed in the videos by Kishore Ram per se is at the authorities, again based on what the relatives of the victims and other people in these cases are saying, that the police failed to register FIRs and when they belatedly did so in the murder case, they did not include murder charges or charges under the SC/ST Act.
Given the FIR is based on false claims and is baseless in law, this whole case begins to look suspiciously like an abuse of law, perhaps as a way to intimidate Ram for raising questions about the authorities' conduct. Similar questions have also been raised recently about the arrest of Kashmiri journalist Fahad Shah.
The fact that Ram was arrested for this case in clear violation of the Supreme Court's Arnesh Kumar guidelines, only reinforces such a suspicion.
The maximum punishment that can be imposed for a basic Section 153A offence is three years' imprisonment – in the Arnesh Kumar judgment the apex court had held that when a person is accused of an offence where the maximum punishment is under seven years, they should not be arrested unless there is some specific need to do so.
The EGI statement concludes by urging "the state administration and the law enforcement agencies to not use penal laws as tools of intimidation against journalists’ right to report on societal and caste based issues."
Unless the police drop this case, Ram will likely need to approach the Uttarakhand High Court to quash the FIR against him under Section 482 of the Code of Criminal Procedure.
Given the misleading claims in the FIR, one would expect his prayer to be quashed immediately, and at the very least for the court to ensure he gets interim bail and protection from arrest in pursuance of the Arnesh Kumar guidelines.
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