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Continuous seizure of scribes’ devices violates fundamental rights: Delhi court
The order, released on Thursday, emphasised that allowing the press to function independently is necessary for the country’s democracy
Continuous seizure of electronic devices used by journalists for work tramples upon their fundamental right to freedom of profession as well as the freedom of speech and expression, a Delhi court has said, affirming the release of the devices confiscated from the editors of news portal ‘The Wire’ in connection with a forgery and defamation case filed by BJP leader Amit Malviya.
Dismissing a revision petition moved by the Delhi police against an order passed by a magisterial court last month, the sessions court invoked the constitutional freedoms to hold that the impugned order does not need an interference.
“The investigating agency by continuous seizure of electronic devices of the respondents, is not only causing undue hardship to them, but impinges upon their fundamental right of freedom of profession, occupation, trade or business as guaranteed under Article 19(1)(g) as well as freedom of speech and expression under Article 19(1)(a) of the Constitution of India”, said additional sessions judge (ASJ) Pawan Singh Rajawat in his order on Wednesday.
The order, released on Thursday, also emphasised that allowing the press to function independently is necessary for our democracy. “The Press is considered the Fourth Pillar of our great democracy and if it is not allowed to function and operate independently, it would cause serious injury to the foundations of our democracy”, the court added.
The Delhi police had approached the sessions court assailing the order passed by a magistrate on September 23, in relation to an FIR registered by Malviya against the founder and editors of the news portal, alleging that the portal used “forged documents with a view to malign and tarnish” his reputation.
‘The Wire’, in a series of news reports published last year, now retracted, had alleged that Meta, the parent company of social media giants - WhatsApp, Facebook and Instagram - has accorded special privileges to Malviya that enable him to get posts removed from its platforms. The reports had insinuated that the BJP leader was behind the removal of some posts from Instagram.
The BJP leader had registered a complaint and an FIR was lodged in October 2022 against the editors of the portal under sections 420 (cheating), 468 (forgery with the purpose of cheating), 469 (forgery for harming reputation), 471 (using forged document), 500 (defamation), 120B (criminal conspiracy) and 34 (common intention) of the Indian Penal Code, 1860.
Siddharth Bhatia, Siddharth Vardarajan and Mangalam Kesavan Venu, among other editors and employees of ‘The Wire’, had approached the CMM court in November 2022 seeking release of their electronic devices seized by the investigating officer (IO). The magistrate allowed the release of the devices while noting that the devices cannot be kept by the IO indefinitely only on the speculation of an uncertain future discovery. The magistrate added that the editors shall ensure that the devices are kept in their possession and be kept safe from tampering.
Upholding this order, the sessions judge observed that the revision petition is not maintainable as order is an interlocutory order and does not terminate the proceeding or decide any right over the property.
“The impugned order does not terminate the proceedings but the investigation and trial if any will go on until it terminates in either submission of closure report and if chargesheet is filed in either acquittal or conviction. The impugned order does not decide any right but only the interim custody of the devices till conclusion of investigation or disposal of the case”, the court noted in its order.
Approving the magisterial court order, it observed that the order not only safeguarded the interest of the respondents but has also ensured that they are duty bound to keep the devices safe from tampering. The sessions court further observed that the impugned order was passed after having considered that mirror imaging had been done and custody of the devices was no longer required.
“The argument that order of Ld CMM (chief metropolitan magistrate) is not an interlocutory order is humbly rejected as the order of release of electronic devices to respondents being owner of such devices was made after having noted that mirror imaging of the devices have been done and custody of same is no more required to be with IO”, the order said.
The Delhi police had argued before the court that the order passed by the magistrate court was unjustified, illegal order against the provisions of law. It was submitted by the police that investigation against the accused persons are pending in respect of Information Technology Act (IT Act) and despite that CMM has ordered for release of case property without correctly understanding and interpreting Section 76 of I.T. Act which mandates confiscation of electronic devices.
The application was opposed by the counsels for the editors who submitted that the petition is not maintainable as it has been moved against an interlocutory order. It was also argued that the devices have been examined by the FSL and mirror images have been taken of all the electronic devices thus they are no more required for any investigation.
