Guest Post: Barb Wiring Free Speech — Criminal Law and Curbing Press Freedom

(I am delighted to present a guest post by Nipun Arora, an advocate practising in Delhi, and Shivkrit Rai, a law researcher at the Delhi High Court)

Recently, the Uttar Pradesh police registered a First Information Report [FIR] against journalists (of The Wire) reporting on apparent violations of the lockdown that has been ordered by the Central Government. Similarly, an FIR was registered against an elected representative from the Aam Aadmi Party (an MLA) for allegedly defaming the Chief Minister of Uttar Pradesh. 

By no means is one state the exception here—there have been several such cases from different states across India in the past as well, with baseless FIRs being registered as part of clear attempts to stifle press freedom and rile journalists who ask uncomfortable questions. Often these incidents are discussed as part of a larger narrative on freedom of press discourse. What is often ignored is the means involved towards this end of silencing journalists: Police questionably using criminal law. This use of police machinery to hamper and obstruct journalistic freedom is a concerning issue that needs to be addressed by both, judiciary and the executive.

Abuse or Misuse? "Cognizable" Offences as Tools for Harassment

These FIRs against journalists / media houses disclose several similarities. Most importantly, we find that a majority of the offences alleged in these cases are "Non-Cognizable". This refers to that category of offences where the police cannot investigate the case without an order from the court, and thus cannot arrest suspects. 

In a bid to overcome this hurdle, we see that the police simply add one or two offences to the FIR that are "Cognizable". This mere mentioning of a particular section now allows the police to investigate the case without any judicial oversight and now the police can assume powers of arrest and detention in pursuance of the investigation. 

And, worryingly, very oftenthe cognizable offences added to the FIR are hardly applicable to the case at hand. For instance, consider the FIR filed against the Editor of Vishwani, a Karnataka based newspaper in 2019 at the behest of a complaint by the Janta Dal (Secular). Here, allegations of Criminal Breach of Trust—a cognizable offence—were added to what was (at best) a Defamation case, which is a non-cognizable offence. 

A similar trend is on display in the Uttar Pradesh cases against the Aam Aadmi Party MLA and The Wire where a cognizable offence Section 505(2) of IPC (false statement with the attempt to create enmity, hatred or ill-will between different classes), was added to circumvent the need to go the magistrate. This practice of adding cognizable offences where only non-cognizable offences are made out gives the police a cover to ‘investigate’ the case and arrest the accused.

Heightened Problems in Times of Covid-19

The only resort for the accused that remains, then, is to approach the courts, which have often made observations in such cases lambasting the police conduct of registering bogus cases that are all too clearly attempts to stifle the constitutionally protected freedom of speech and expression. Recent examples being the cases of Prashant Kanojia and Priyanka Sharma. But by the time that happens, the aggrieved individual is generally already under arrest, and thus the damage has been done. A chilling message has been sent: Dare to question, then face the music.

At the present moment, however, even approaching the courts is not possible as they have restricted their functioning to cases of utmost urgency due to the Covid-19 outbreak. The guidelines for court hearings suggest that courts are only taking up cases involving matters of life and death, and these more ordinary excess of executive power are, unfortunately, not matters that will be guaranteed a hearing in court. As a result, we find ourselves in the midst of a situation where the police have a carte blanche of sorts, rendering the already vulnerable persons in an even more precarious position.

Designing a Response? An Argument for Constitutional Torts

The much-needed structural reforms in police activity that have been recommended for decades are yet to see the light of day. While a High Court can step in and set aside the FIR in a specific case, it is clear that this strategy has failed to get the message across to police at large, as despite the repeated quashing of bogus FIRs new ones keep registered every other day. We need a different take on this problem, where state agencies are actively working towards dissuading persons from exercising their fundamental rights without any justifiable reason. 

In 1983, in a case titled Rudul Sah v. State of Bihar [(1983) 4 SCC 141], the Supreme Court had held that in cases involving violation of fundamental rights, the court can grant compensation to the victim. In cases of custodial deaths, repeatedly, the state has been held liable to pay compensation for infringing right to life under Article 21. A case of frivolous FIRs which is aimed at infringing the fundamental rights, and registered at the behest of the state itself (as opposed to being registered upon a complaint by a private person), clearly points towards the mala fide of state authorities who use the police to clamp down on press freedom. 

The courts thus need to take note of the growing tendency of the state to register, suo moto, a baseless FIR, aimed at curbing the freedom of speech, and make an attempt to curb the practice. It would be appropriate for the courts to start awarding compensation to the victim against whom the baseless FIR is registered, and to make appropriate orders of recovery of such compensation from the officer on whose instructions the baseless FIR was registered. It would ensure that only those sections which are genuinely made out are included in the FIR. Recovery of the compensation from the concerned officer would of course act as a deterrent and prevent such frivolous cases.

The need of such an institutional response becomes important because it ensures that even in extreme circumstances like the present where the functioning of the courts is also limited, such FIRs are not registered because of the deterrence created. The fear of repercussions once the courts reopen would be sufficient to dissuade an overenthusiastic officer even when the courts are closed. Such a systemic response has been a long-time due, and needs to be considered by the courts now.