Free speech is about putting forth view without prosecution fear: Supreme Court
The top court underscored the importance of free speech, saying even a factually incorrect report may not attract a penal offence under Section 153A of IPC.
Free speech is all about taking a viewpoint without the fear of prosecution, the Supreme Court observed on Friday, adding that journalists cannot be prosecuted for promoting enmity between different communities or groups over articles they write.
As it set about to examine why a first information report (FIR) against the president and fact-finding team members of Editors Guild of India (EGI) for publishing an allegedly inflammatory report on ethnic clashes between the Meiti and Kuki communities in Manipur should not be quashed, the top court underscored the importance of free speech and press freedom, saying even a factually incorrect report may not attract a penal offence under Section 153A of the Indian Penal Code (IPC).
Section 153A penalises promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc, and acts prejudicial to maintenance of harmony, and is punishable with a jail term up to three years.
“They are entitled to put forth a viewpoint. Where is this going? It is just a report. How can an offence under Section 153 be made out? They may be right; they may be wrong. But that’s what free speech is all about,” said a bench, headed by Chief Justice of India Dhananjaya Y Chandrachud.
The bench, which included justices JB Pardiwala and Manoj Misra, added that there are hundreds of articles published on a daily basis that may not be factually correct. “Will you prosecute all journalists under Section 153A? Making a false statement in an article is not an offence under Section 153A,” it said.
Pointing out that it was the army that requested EGI to visit the northeastern state rocked by ethnic clashes since the first week of May since there was “partisan reporting” of the violence, the bench doubted if the complaint against the body was able to prima facie make out any offence under Section 153A.
“Where are the ingredients of Section 153A? It is just a report and there can always be counter views to it. The FIR must substantiate the charges it seeks to level. You submit your response within two weeks to show how is an offence under section 153A made out and why this FIR should not be quashed, as prayed by them,” the bench told senior counsel S Gurukrishna Kumar, who appeared for the Manipur resident who had lodged the FIR against the EGI and the members of its fact-finding committee.
Kumar, on his part, maintained that the EGI report was not a fact-finding report but an endeavour to set the tone of an adverse narrative against one of the communities in Manipur. Calling it a “Kuki-perspective report,” he claimed that the report should be withdrawn , as its purpose was to instigate more violence.
The bench, however, asked Kumar to file an affidavit to persuade the court why the FIR under Section 153A should not be nixed. Apart from Section 153A, the FIR invoked charges under sections 200 (false declaration), 298 (uttering any word with deliberate intention of wounding religious feelings), 505 (statement to incite violence against any class or community of persons), 499 (criminal defamation) and 120-B (criminal conspiracy) of the IPC.
During the proceedings, the bench also took a grim view of the Manipur high court admitting a PIL seeking to quash the EGI report, alleging a nexus between the body and “narco-terrorist groups”. On Thursday, a high court bench led by acting chief justice MV Muralidaran admitted the PIL, posting the matter for the next hearing on October 12.
“The manner in which the PIL has been entertained by the high court, let me not say anything more as the head of the family. Surely, there are more important matters before the acting chief justice than this to be taken up,” CJI Chandrachud commented. The bench continued the interim protection from arrest against the EGI journalists and put on hold all the proceedings in connection with the FIR against them.
On his part, senior advocate Shyam Divan, appearing for EGI and the journalists, maintained that no criminal offence was made out by publishing the report and that the responses and counterviews to the EGI report have also been uploaded on the website. Citing apprehensions of personal safety and vendetta in Manipur, Divan urged the bench to transfer the case to the Delhi high court where they could press for quashing of the FIR.
Opposing the transfer of the case, solicitor general Tushar Mehta, representing the Manipur government, submitted that the high court at Manipur is very much functioning and that allowing a particular set of journalists to be heard by a different high court would set a wrong precedent. “Let there be no impression that the high court of Manipur is not functioning...this court may get flooded with petitions to be directly heard by this court or be sent to some other high court if this is allowed,” the S-G said.
However, as the hearing drew to a close and the court expressed its inclination to examine why the FIR in the case should not be quashed, Mehta agreed to the suggestion that the case may be transferred to the Delhi high court. “They had not even asked for quashing of the FIR but after all these observations coming from the bench, I am sure they will want the quashing. Let them go to the Delhi high court instead,” said the S-G. But the bench proceeded to seek a response from the complainant, setting about to examine the correctness of the FIR.
The EGI journalists booked by the Manipur police are Seema Mustafa, EGI president, and three members, Seema Guha, Bharat Bhushan and Sanjay Kapoor. The three members visited Manipur last month to study media reportage of the ethnic clashes.
On September 4, Manipur chief minister N Biren Singh accused the body of ‘instigating more clashes’ in the state through its “biased” fact-finding report on the violence.
The EGI released a report of its ‘Fact-Finding Mission on Media’s Reportage of the Ethnic Violence in Manipur’ on September 2, claiming that the media’s reports on the ethnic violence in Manipur were one-sided and accused the state leadership of being partisan. The EGI team found “clear indications” to show how the leadership of the state became “partisan” during the conflict which witnessed the executive, bureaucracy, police and other security forces divided along ethnic lines.