The sudden arrest and alleged assault of Republic TV’s Editor-in-Chief Arnab Goswami by the Raigad Police in Maharashtra has brought to the forefront concerns about India’s long-cherished freedom of speech and whether it is losing its pride of place in the Constitution.
Throughout India’s well-established democracy, courts have accorded the highest respect for protecting this right enshrined in our Constitution under Article 19 (1)(a). Yet, the detention of one of India’s most celebrated journalists — in a case of abetment to suicide of architect Anvay Naik in which the Raigad Police previously found no illegality — raises several issues of propriety.
A bench of the Supreme Court headed by Chief Justice S.A. Bobde, while hearing the matter in which the Maharashtra government opposed a Bombay High Court order that stayed a probe into two First Information Reports (FIRs) filed against Republic TV, had earlier observed that “some people were targeted with greater intensity and needed more protection”.
The FIRs pertained to Goswami’s observations during his television programme on the Palghar lynching incident and migrant labourers gathering in large numbers in Mumbai’s Bandra area. While nobody is above the law, the wisdom of the Supreme Court’s observation appears to have been borne out by the latest sequence of events in Goswami’s case.
Arnab Goswami’s lawyer has alleged that the TV anchor was denied access to his legal team, and that the police used force during the arrest. Moreover, reporters who were trying to cover the event were reportedly stopped by the Raigad Police.
The freedom of speech, enshrined in the Indian Constitution, consists of three essential elements. First, freedom of access to all information; second, freedom of publication; and third, freedom of circulation. In short, freedom of speech is regarded as “the mother of all other liberties” in a democratic society.
Time and again, the courts have made it clear that interference by the state machinery to the right to freedom of speech should not be tolerated. To that extent, the recent filing of an FIR by the Maharashtra Police against several employees of Republic TV needs to be carefully examined.
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Court vs State
In D.K. Basu vs State of West Bengal (1996), a letter written by a non-governmental organisation regarding custodial deaths was treated as a writ petition, the Supreme Court came to the view that there should be some controls on police.
The Court held that a police officer could not act arbitrarily while arresting a person. There are guidelines that police officers have to follow: 1) The person under arrest has the right to meet his/her lawyer; 2) S/he has the right to medical examination every 48 hours; 3) The arresting officer must inform the accused person’s relatives regarding the arrest; 4) The accused has to be produced before a magistrate within 48 hours; 5) An entry must be made in the diary regarding the arrest; 6) A police control room should be set up in all the districts and state headquarters, and the information regarding the persons’ arrest has to be communicated; 7) All the details, including the memo of the arrest, has to be sent to the magistrate.
In the case of Anuradha Bhasin and Ors vs Union of India (2020), the Supreme Court said that “responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely”.
In the Romesh Thapar vs The State of Madras case (1950), the Supreme Court held that the criteria for imposing restrictions on the fundamental rights given in Article 19(1) are those offences or acts against public order that are “aimed at undermining the security of the State or overthrowing it”.
Often referred to as the ‘Pentagon Papers’ case, the landmark US Supreme Court decision in New York Times Co. v. United States, 403 U.S. 713 (1971) defended the First Amendment right of a free press against prior restraint by the government. The US Supreme Court held: “Only a free and unrestrained press can effectively expose deception in government.”
Also read: This is the 2018 suicide abetment case behind Arnab Goswami’s arrest
Maharashtra won’t have it easy
Measured by these stringent standards in cases of restriction on freedom of speech, it is clear that the state machinery in Maharashtra has its task cut out in Arnab Goswami’s case. In response to the cases filed against him, a high court bench had observed that there could not be “the spectacle of a Damocles’ sword” hanging over the head of a journalist while conducting a public debate. In that backdrop, the action against Goswami smacks of an attempt at curbing media liberty.
In a recent case, the Supreme Court underscored concerns about the growing trend of police summoning individuals for social media posts that criticised political dispensations.
It came following a 29-year-old woman Roshni Biswas, who had challenged the issue of a police summons for questioning her about a Facebook post complaining that large congregations at Raja Bazaar area in Kolkata violated lockdown norms.
The Supreme Court issued a stern warning to the West Bengal Police, which issued summons to a Delhi resident for criticising the state government for non-enforcement of lockdown norms. Underlining the freedom of speech guaranteed under Article 19 (1)(a) of the Constitution, a bench of Justices D.Y. Chandrachud and Indira Banerjee said: Do not cross the line. Let India remain a free country. We, as the Supreme Court, are here to protect free speech. The reason why the SC was created by the Constitution is to ensure that ordinary citizens are not harassed by the State.”
Though a journalist’s right to freedom of speech is no different from that of an ordinary citizen, the media has always been regarded as the fourth estate of democracy. If this pillar is allowed to be trifled with on flimsy pretext, this will undermine the confidence of the citizens in the judiciary’s capacity to protect our freedom.
By all accounts, therefore, the police high-handedness seen in Arnab Goswami’s arrest needs to be condemned, and swift action is required to redress the situation. Otherwise, our very democratic foundations would appear to be in danger.
The author is a partner at The Law Point (TLP). She was formerly the chairperson of the National Commission for Women. Views are personal.