[Story updated with order]
The Bombay High Court on Tuesday while granting relief to Republic TV Chief Arnab Goswami observed that "we cannot have a damocles sword hanging over the head of a journalist while conducting a public debate". Court suspended proceedings in two FIRs filed against Arnab Goswami for allegedly communalizing the coverage of Palghar mob lynching incident and the incident regarding gathering of migrants outside Bandra station during lockdown.
A division bench of Justice Ujjal Bhuyan and Justice Riyaz Chagla observed "prima facie no case was made out against him".
The bench ordered that no coercive action should be taken against him.
The bench had reserved orders on the petitions on June 12.
Arnab Goswami was booked under Sections 153, 153 A, 153 B, 295 A, 298, 500, 504, 505(2), 506, 120 B and 117 of the Indian Penal Code.
Reasoning of the bench
At the outset, the bench examined the allegations regarding the show telecast on Republic TV in relation to the Palghar mob lynching incident and said-
"Prima facie, it appears that petitioner as a media journalist had questioned the response or rather the alleged non-response of the Congress party and its President Smt. Sonia Gandhi to the killing of two Hindu saints juxtaposing this with the question as to whether the Congress party or Smt. Sonia Gandhi would have kept quiet if any Maulvi or Padri was killed. Thereafter the petitioner made allegations against the foreign origin of Smt. Sonia Gandhi.
It is quite clear that the object of or the target of the petitioner's attack was primarily Smt. Sonia Gandhi and the Congress party. There was no mentioning of either the Muslim community or the Christian community. It would be too far fetched to say that two religious communities were involved in the debate. As a matter of fact, there was no reference to the Muslim community or to the Christian community."
Moreover, Court noted that the debate centered around a very sensitive subject i.e., killing of two Hindu Sadhus-
"Petitioner had highlighted the fact that this killing had taken place in a state where the Congress party was part of the ruling dispensation.The crux of his questioning or statements was relating to the response of the Congress party in general and its President Smt. Sonia Gandhi in particular to the unfortunate incident. What is deducible is that the petitioner had accused the Congress party and its President of having a communal mindset, of being communal in their response or rather in their silence vis-a-vis the unfortunate incident. However, if the transcript together with the first information are read as a whole, we do not find any statement made by the petitioner which can be construed to be against the Muslim community or Christian community."
Court concluded that in such circumstances, it cannot be said that any offence has been committed by the petitioner of provoking rioting or promoting or attempting to promote, on the grounds of religion, disharmony or feelings of enmity, hatred or ill-will between different religious groups which is prejudicial to the maintenance of harmony between different religious groups or which disturbs or is likely to disturb public tranquility, thus prejudicial to national integrity.
The bench reasoned-
"Neither any statement nor the conduct of the petitioner can be said to have been made deliberately and with malicious intention to outrage the religious feelings of any class of citizens of India or insulting any religion or religious beliefs of that class of citizens. A view may be taken that the language of the petitioner was quite sharp and vicious; it may also be construed as an act of defaming the Congress party or its President. But as pointed out by the Supreme Court, the offence of criminal defamation would be excluded from the purview of investigation of the present FIR because the said offence can only be taken cognizance of by a Magistrate on a complaint, that too, instituted by the person aggrieved."
Furthermore, Court said that it cannot also be overlooked that the present FIR was part of multifarious FIRs/complaints lodged by Congress party members and supporters in diverse jurisdictions, all total 15, relating to one and the same incident i.e., broadcast by the petitioner on April 21 on Republic Bharat.
Referring to Sibal's contention that Arnab had questioned why gathering of migrants took place outside a Masjid, even though they gathered outside Bandra station, Court said that Arnab had already clarified this statement on the show wherein he said that there was no question of targeting any community.
"It was a fact that the incident had taken place outside the Jama Masjid but there was no question of any religion. He further clarified by saying that if the same incident had happened outside the Siddhivinayak temple or any other temple, he would have said the same thing and asked the panelists not to bring religion in every issue", Court said.
Finally, the bench concluded-
"We cannot have the spectacle of a Damocles' sword hanging over the head of a journalist while conducting a public debate. India is now a mature democracy. Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets. Subscribing to such a view would stifle all legitimate discussions and debates in the public domain."
Thus, after considering various judgments of the Supreme Court and submissions on behalf of both Arnab and the State, the bench admitted the petition for hearing and directed the office of the Attorney General of India be notified regarding the challenge to vires of sections 153A and 153B(1) IPC. All further proceedings in the two FIRs will remain suspended and no coercive action shall be taken against Arnab until the petition is disposed of.
Senior Advocates Harish Salve and Milind Sathe, appearing for Goswami, had submitted that the FIRs were politically motivated with an attempt to muzzle critical voices against the Maharashtra Government.
Stating that the Maharashtra police had mala fides against Goswami, Salve had submitted :
""At a time when the country is in lockdown, calling Arnab for investigation should be looked into. A party in power is calling a journalist for investigation because he made an adversarial statement against the leader of a political party. What was he asked, what is the structure of your company ? Who owns Republic TV & Bharat ? What is your wife's role?What is the relevance of these questions?"
Salve also submitted that a journalist has the right to report about communal incidents.
Salve reiterated that Srivatsa YB and Gaurav Pandhi of the Congress were tweeting details about Arnab's interrogation from outside while he was still inside NM Joshi Marg police station.
"We have made serious allegations. However strong his comments may have been against the Congress President, but to cross a line & invoke 153A is malicious. When you're reporting on communal incidents & making a personal allegation of someone being communal, it comes within the Right to Freedom of Expression", Salve contended.
Senior Advocate Kapil Sibal, appearing for State of Maharashtra, submitted that press freedom under Article 19(1)(a) of the Constitution does not include the right to indulge in communal propaganda.
"A journalist has a right to Freedom of Expression & right to private investigation of an incident. But a journalist does not have a right to declare that a person got killed only because he was a Hindu. What if it turns out to be false after an investigation ?We need to investigate the motive. Why did Arnab assume that the man was killed because he was a Hindu. What is this if not putting one community against the other?", Sibal had submitted.
As regards the second FIR, relating to gathering of large crowd of migrants at Bandra station, Sibal had submitted :
"Arnab asked : Who caused the congregation of a crowd near a Masjid ?
Why didn't he ask - Who caused the congregation of a crowd near Bandra station? If Masjid was used just as a statement of fact, why did he twist the question?
So he's not using Masjid as a matter of fact. A journalist has no right to consider his investigation to be gospel & air it to create disturbance. All this will be investigated. It will be investigated as to why was he doing a series of such shows ? What was his intention?"
Earlier, the Supreme Court had declined Goswami's prayer to transfer the investigation from Maharashtra police to the Central Bureue of Investigation. The top court also turned down his prayer to quash the FIR, saying that powers under Article 32 of the Constitution cannot be exercised for such purposes. However, the SC quashed the multiple FIRs filed in various states over the reports, and confined the investigation only to the FIR lodged in Mumbai.
The SC bench comprising Justices D Y Chandrachud and M R Shah also granted him interim protection from arrest, and gave liberty to him to move the Bombay High Court with respect to quashing of FIR.
On June 10, Goswami had to appear before Mumbai police for interrogation for the second time, after the Bombay HC declined to grant him exemption from such appearance.
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