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Nation wants to know why FIRs against Arnab Goswami

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

On 24th April, 2020, in the midst of the Covid-19 Pandemic, the Supreme Court of India, came to the rescue of the maverick anchor Arnab Goswami of Republic TV. It stayed further proceedings in the multiple FIRs lodged against him in Maharashtra, Jharkand, Telengana, Rajasthan and Chattisgarh (all opposition ruled States, just saying). The Court has granted interim protection from arrest of Goswami for 3 weeks, while granting him time to move a Mumbai Court for anticipatory bail. It has further directed that the multiple FIRs would get morphed into one proceeding in Maharashtra, by transferring the FIR from Nagpur to Mumbai, to be taken to its logical conclusion.

A bench of Justices D Y Chandrachur and M R Shah passed the said orders in the petition filed by Arnab Goswami challenging the multiple FIRs against him for his ‘inflammatory statements’ against the Congress President Madam Sonia Gandhi, in the course of a debate on the Palghar incident, in which three persons, including Sadhus, were said to have been lynched, on his channel. Going beyond, the apex court has also stayed any future FIRs that may get filed on the same ‘cause of action’ against Arnab Goswami, to suffer a similar transfer to Mumbai.

In one word, sensational. But, in another word, Constitutional. The presiding judge was Justice D Y Chandrachud. Remember, it was he speaking from the pulpit who had said, “The destruction of spaces for questioning and dissent destroys the basis of all growth–political, economic, cultural and social. In this sense, dissent is a safety valve of democracy.”

Going beyond these words, in the P D Desai Memorial lecture, Chandrachud added, “The attack on dissent strikes at the heart of a dialogue-based democratic society and hence, a state is required to ensure that it deploys its machinery to protect the freedom of speech and expression within the bounds of law, and dismantle any attempt to instill fear or curb free speech,” he opined.

Commitment to the protection of deliberative dialogue is an essential aspect of every democracy, particularly a successful one, Justice Chandrachud said. He added, “A democracy welded to the ideal of reason and deliberation ensures that minority opinions are not strangulated and ensures that every outcome is not a result merely of numbers but of a shared consensus”.

Justice Chandrachud said the “true test” of a democracy is its ability to ensure the creation and protection of spaces where every individual can voice their opinion without the fear of retribution. “Taking democracy seriously requires us to respond respectfully to the intelligence of others and to participate vigorously, but as an equal in determining how we should live together,” the supreme court judge said.

Yes, the order from the Supreme Court is quite sensational, but nothing unusual, considering the circumstances in which it came about and the personalities involved. Social media went viral that ‘Nation Wants to know how Arnab Goswami’s petition filed at 20.17 on 23rd April, got listed at 10.30 a.m. on 24th.” It was in the wake of the viral video that Arnab himself put out in the aftermath of some goons attacking the car in which he and his wife were proceeding. He alleged that the target of his ‘inflammatory statements’ may have been behind the instigated violence and even challenged the political leader to ‘bring it on’. That was the sensational part. Not the protective order itself, for it is perfectly constitutional and timely.

FIRs lodged against Arnab Goswami were all by ‘party men’ aggrieved at the ‘inflammatory statements’, against their high command. The FIRs were not at the instance of Madam Sonia herself. In India, we have seen far too many instances of such FIRs, inspired by the acts of ‘public spirited citizens’ getting cast by the wayside, as not sustainable. Recall the FIRs against Mahendra Singh Dhoni for posing as God in a magazine or the actor Priya Warrier’s famed wink of the eye or even the FIR against Ramachandra Guha and other ‘intellectuals’ for writing an open letter to the Prime Minister Modi. All the FIRs had to go and away they went. So, the orders that Arnab Goswami has been granted is nothing unique or unusual.

The fact that the petition that got filed on 23rd April got listed on 24th also makes sense. Like or lump it, Arnab Goswami is a news anchor who comes home to the drawing rooms, on idiot box, on a daily basis with his cacophonous ideological food fights. ‘Medium is the message’, said Marshall McLuhan. Goswami is a media moghul. His megaphone Republic TV is imbued with the fundamental right of free speech. As Justice V R Krishna Iyer said once, “The freedom of speech of a writer must be put on a higher pedestal than that of an ordinary person, much like in the United States their Supreme Court has conferred a longer latitude for a cartoonist to lampoon the leaders”.

It is true that in the United States of America- freedom of the press is its First Amendment. Hate speech in the United States is not regulated, in contrast to that of most other liberal democracies, due to the robust right to free speech found in the American Constitution. The U.S. Supreme Court has repeatedly ruled that hate speech is legally protected free speech under the First Amendment. The most recent Supreme Court case on the issue was in 2017, when the justices unanimously reaffirmed that there is effectively no “hate speech” exception to the free speech rights protected by the First Amendment. In Matal vs Tam in June, 2017, The Nine said from the bench “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate. A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

Arnab may be right or may have gone overboard. He appears to have the licence to do either. It is true that our Art.19 fundamental right to freedom of speech is not on the same pedestal as First Amendment in the US. Our Constitution has carved out ‘reasonable restrictions’. The remedy for the aggrieved entity lies in suing for defamation (which law our Supreme Court had upheld as constitutional). Problem lies with the criminal jurisprudence where the Police administration or the Magistracy mechanically entertaining such FIRs at the instance of ‘total strangers’ said our apex court.

It is quite troubling that the lower rungs, where the mischief’ is planted continues to play truant, compelling intervention from the highest court. Nation wants to know why despite the clear and stated position of law, against the registration of such FIRs, the position continues to be the same.

(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
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