15 Sep 2023 11:18 AM GMT
In the petition challenging FIRs lodged against the members of the Editors Guild of India (EGI) over a fact-finding report published by them about the ethnic violence in Manipur, the Supreme Court today orally remarked that the complaint filed against the EGI members was "a counter-narrative of the government". The Court further orally remarked that even if the EGI's report is assumed to...
In the petition challenging FIRs lodged against the members of the Editors Guild of India (EGI) over a fact-finding report published by them about the ethnic violence in Manipur, the Supreme Court today orally remarked that the complaint filed against the EGI members was "a counter-narrative of the government". The Court further orally remarked that even if the EGI's report is assumed to be false, making false statements in an article, by itself, was not an offence under Section 153A of the IPC.
The Supreme Court has granted two weeks to the Manipur police and the complainant to file their response in the matter. Till then, the Court extended the interim order granting protection to the EGI journalists from coercive actions based on the FIR.
The writ petition, jointly filed by journalists Seema Guha, Sanjay Kapoor, Bharat Bhushan, and the President of the Editors Guild of India was heard by a bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice Manoj Misra.
Making An Incorrect Statement In A Report Not An Offence Under Section 153A IPC: Supreme Court
Senior Advocate Guru Krishnakumar, appearing for the complainant, submitted that if the EGI withdrew their report, the complainant will not press the complaint. He said–
"There is a committee appointed by my lords. Some good work is being done. This kind of report is aggravating the problem. There was relaxation of curfew. It had to be reinforced after this report. This is instigating things. If they withdraw this, there would be an end of the problem."
To this, Senior Advocate Shyam Divan, appearing for the EGI, argued that the weblink of the EGI has published counter-views to the report.
Solicitor General of India Tushar Mehta, appearing for the State of Manipur, objected to the Supreme Court entertaining the petition and said that the petitioners should avail of the remedy before the High Court.
Suggesting a solution to the issue, the CJI asked Senior Advocate Krishnakumar if it would help if the counter view of the complainant was also put on the web link. Krishnakumar responded by stating–
"What about the damage which has been done by them?"
At this juncture, the CJI asked him to show how any of the offences mentioned in the complaint were being made out. The CJI stated–
"What is happening? They are entitled to put forth a viewpoint. Where do you get this? 153A? 200? Let us see each section. Section 200 IPC – it deals with using a declaration which is submitted before the court, which is a false declaration. Where was the declaration made to the court? This was a report."
Krishnakumar stated that the complainant will submit a response. However, the CJI said–
"You have to look at the complaint as it stands. Forget the response. You have to establish that the ingredients of the offence are being made out in my complaint. We have to proceed on a demurrer that all these allegations made in the complaint are true."
To this, Krishnakumar responded that an FIR or the complaint could not be treated as an encyclopaedia and that an investigation had to take place.
At this juncture, the CJI differentiated between the current case with other cases and said–
"You have to show us in a case like this your complaint – does it even make out a whisper of the ingredients of the offence?...Your entire complaint is a counter-narrative of the government... You have basically put forth a counter-narrative, assuming that what they have said is false. Making a false statement in an article is not an offence under Section 153A. It may be incorrect. Incorrect things are reported all across the country every day. Will you prosecute journalists for 153A?".
At this juncture, Solicitor General of India Tushar Mehta intervened and said that the Court may not delve deep into the issue of the merits of the complaint and suggested that only the petitioners' prayer to approach the Delhi High Court (instead of the Manipur High Court) be considered.
Eventually, the bench granted the respondents time to file a response. However, before concluding the matter, the CJI pointed out that the EGI visited the place at the invitation of the Indian Army.
"Mr SG, the Army writes to the Editors Guild of India. The Army says that there is partisan reporting, please come and make a proper report. They go to the ground. They may be right or wrong but that is about free speech is all about".
Highlighting the delicacy of the situation, the SG requested the bench to refrain from making comments on the merits of the case. He also urged the bench to clarify that any order passed by it allowing the petitioners to approach the Delhi High Court will not be construed as a reflection on the Manipur High Court. At this point, CJI Chandrachud expressed disapproval of the manner in which the Manipur High Court recently entertained a PIL against the EGI report.
"The manner in which that PIL is entertained by the Chief Justice of the High Court...let me not say much more as the head of the family. But surely there are more pressing matters to be entertained than these kinds of PILs."
The CJI was referring to a PIL filed by the International Meeiteis Forum seeking to quash the EGI's report. It may be noted that the PIL also alleged a nexus between the EGI and "narco-terrorism" and urged that the report may not be relied upon by any government authority.
Picture Painted By Petitioners That Manipur HC Isn't Functioning Incorrect: SG Mehta
At the outset, the Solicitor General took objection to the way that the petitioners had "painted the picture" of the functioning of the Manipur High Court. He said–
"I am on the picture which was presented, not only by this petitioner but especially by Mr Anand Grover. We have taken facts."
He stated as per a letter filed by the Bar Association to the registrar general, in the past 15 days, a total number of 2683 cases were listed for hearing before the High Court. Further, during the last 30 days, virtual hearings were conducted on each of the working days and a total of 572 virtual hearings were recorded in the same period. There were roughly 45 non locals that had logged in. He added that Senior Advocate Anand Grover appeared before the High Court virtually 6 different days and even Senior Advocate Colin Gonsalves had appeared on two days before the High Court. He added that even e-filing was permitted by the Manipur High Court.
EGI Carried Out A Bona-Fide Exercise: Senior Advocate Shyam Divan
Senior Advocate Shyam Divan, appearing for the Editor's Guild stated that the EGI only went to Manipur because the army had invited it to conduct a study on the partisan report by the local media. Thus, in this backdrop, the EGI team went to Manipur and interviewed several sections of the State on ground, post which a detailed report came to be filed on September 2.
He highlighted that as per the report, owing to transport restrictions and internet shutdowns, the journalists in Manipur were unable to ascertain various facts and thus the "rumour mill" would keep running in the State. He added that the FIRs were lodged by a complainant who stated that he is a social worker. However, the content of the FIRs, he stated, made it seem that the complainant was nothing but "a mouthpiece of the state". Divan added that this was further corroborated by the Manipur CM's press conference in which he stated that the EGI report was biased and promoted enmity.
Divan further highlighted personal safety issues faced in the State of Manipur and added that the offices and homes of lawyers representing parties were being ransacked. Here, the SG interjected and said–
"One lawyer belonging to one community was a victim of this communal riot. Not a lawyer representing(any party)."
Divan continued his arguments and reiterated that there was an element of personal safety involved and there even had been a sniper attack on an officer. In this context, he stated that instead of the government taking a position to protect free speech, there was a situation where lawyers' offices were being ransacked.
Referring to the report, Divan also clarified that there had been some errors in the report which had since then been corrected. He said–
"What they found was that there was a community controlling the narrative. This was a cause of concern...There is an extreme pressure on journalists to put forth views of their community rather than reporting on facts...It is a fact finding with all its limitations...There are recommendations but this report is prepared with care. It's bona fide."
In his arguments, Divan also placed on record a PIL admitted by the Manipur High Court filed by the International Meeiteis Forum seeking to quash the EGI's report.
The Solicitor General that the content of the report would not have any bearing on whether the Manipur HC could take the matter or not. Reiterating that the Manipur HC was working, he stated–
"It is wrong to say that there is a complete paralysis of the legal system there. They can appear through the lawyer of their choice. Nothing would change if I appear from here to Delhi HC or Manipur HC- except that my learned friend says I don't trust the Manipur HC."
Complainant Was Not Even Impleaded, Clear Case of Section 153A: Senior Advocate Guru Krishnakumar
Senior Advocate Guru Krishnakumar, appearing for the complainant stated that he had not even been impleaded in the matter. He argued that the report was not a fact finding report but was in fact "a Kuki perspective of the report". He added that the EGI was now "crying about safety", but had earlier travelled to Manipur to make the report. He said–
"This is not a fact finding report. It's a one party's perspective. A clear case of invoking 153A. This is a report that furthers animosity between communities...If this is said to be a fact finding report, there also has to be hundreds of pictures of the other community."
He added that the petitioners were trying to project a picture that the EGI report was an unbiased report. On the contrary, he stated that it was completely one sided. He asserted–
"I would submit that for the manner this is being gone about - surely, we all respect press freedom- but can you say that I've come here, don't even implead the complainant, I can't go to Manipur for imaginary reasons. This report is fermenting problems in the State."
In the last hearing, the court had orally remarked that the issue pertained to just a report and was not a case of someone committing an offence on the ground. The court also stated that it was not inclined to quash the FIRs itself and was contemplating whether the matter should be transferred to the Delhi High Court or should be heard by the Manipur High Court.
In the hearing, Senior Advocate Kapil Sibal had asserted that the EGI did not volunteer by itself to go to Manipur and make the report. However, it was invited by the Army to do so because it was the army which wanted an objective assessment of the reporting on the ground in the State of Manipur. Solicitor General of India Tushar Mehta had stated that the matter could be heard by the Manipur High Court and the petitioners need not approach the Supreme Court for the same.
It may be noted that earlier, the Supreme Court had granted interim protection to the petitioners from coercive action in pursuance of the FIRs.
Case Title: Seema Guha And Ors. v. The State Of Manipur And Anr. W.P.(Crl.) No. 415/2023