What the Nation Should Know
- Written by: Ashok Pandey, Lakshya Godara, Shreya Sukhtankar
Any person who values responsible journalism may find it difficult to support the kind of journalism that is practiced by Arnab Goswami and his channel, Republic TV. His scathing remarks on politicians, bureaucrats and other prominent citizens might not always be graciously accepted. However, circumventing the law in order to suppress voices is not what the democratic fabric of our country upholds. Arnab was arrested on charges of Abetment to suicide of an architect, Anvay Naik and his mother. Republic TV denied the charges on the ground that the case is being brought to malign Arnab and the channel’s reputation.On the morning of November 4, 2020, over a dozen officers from the Mumbai Police barged into Arnab Goswami’s residence and arrested him on the charge of Abetment to Suicide (IPC Sec. 306 r/w Sec. 34) of architect and interior designer Anvay Naik and his mother, a case dating back to 2018. Allegedly, Republic TV owed Anvay a large amount of money (Rs. 83 Lakhs) and the suicide note left behind by the architect confirmed the same, which explicitly implicated Arnab. Although the Raigad Police had closed the case in April 2019 on the ground of insufficiency of evidence against all the three accused, including Arnab, they arrested him citing further developments in the case, whose investigation had been reopened recently. It should be noted that earlier this year in May, Anvay Naik’s family approached the Maharashtra Home Minister Anil Deshmukh asking for the case to be reopened, citing inefficiency of investigation by the Raigad Police. Although any kind of glaring lacuna in the 2018 case should be scrutinized carefully, the steps taken in doing so should be free from any legal infirmity. This article explores the validity of Arnab’s Goswami’s arrest, the steps taken by Arnab to get bail and the surrounding controversy of use of power and influence in the justice dispensation process.
REOPENING OF THE INVESTIGATION
An important aspect to be deliberated upon with regard to Arnab’s arrest is the reopening of the investigation of a case whose closure report had been filed by the Raigad Police in April 2019 on account of lack of evidence. Herein, the Magistrate was approached with the “additional evidence” found in the case, the investigation was reopened, and subsequently, a police custody was demanded. There was allegedly nothing on record to show that the Magistrate had explicitly granted permission for re-opening of the investigation. While the Bombay High Court has categorically held that the investigation cannot be termed as illegal because an “A” Summary report (crime is true but evidence was not detected) was filed and hence a prior nod from the Court is not required, it is important to explore the need of giving notice to the accused to file a protest petition against the reopening of the investigation. Moreover, the Hon’ble Supreme Court in the case of Ram Saran Varshney & Ors v. State Of U.P. & Anr , while deliberating upon the question of investigation after filing of Closure reports observed in its obiter that:“It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct “further investigation” and file “supplementary report” with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct “further investigation” and/or to file a “supplementary report” will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code.”
In State of Maharashtra v. Tasneem Rizwan Siddiqui, the Apex Court has further held that the question of whether the initial order of arrest itself was valid or not, does not remain of any relevance in view of a subsequent judicial order of remand for police custody or judicial custody, which is a judicial function. A challenge to the same cannot be entertained in a Habeas Corpus petition.However, Arnab has an efficacious remedy of filing for a bail application under Section 439 of the Code of Criminal Procedure, 1973, which is also what the High Court suggested, by further adding that if such an application is filed, it should be decided within 4 days. Challenging the remand order before a higher court could also be a probable course of action. Habeas corpus, as rightly held by the Hon’ble High Court, is not the appropriate remedy in the present case. In view of the alleged arbitrary re-opening of the investigation and the subsequent arrest, the matter can and should be pursued before the appropriate forum.While the Bombay High Court rightly dismissed the Habeas Corpus petition, the Supreme Court pointed out that the interim bail application ought to have been allowed.
IS FREEDOM OF SPEECH ACTUALLY FREE?
Article 19(1)(a), the Right to Freedom of Speech is a Fundamental Right guaranteed to every citizen of the country by virtue of the Constitution. The fourth pillar of Democracy, i.e. the Media thrives on Speech and its freedom as an essential part of its functioning. Courts have accorded the highest respect for protecting this right as enshrined in the Constitution of India in various judgments over the past years.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.In various instances, the Courts have made it clear that the State machineries should not interfere with the Right to Freedom of Speech and that it won’t be tolerated.In the case of Anuradha Bhasin and Ors v. Union of India, 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.”Having a look at these stringent standards in cases of restriction on freedom of speech, it is imperative to uphold the fourth pillar of democracy today and prevent any entity from violating the same. In response to the cases filed against Arnab, a High Court bench had observed that while conducting a debate, there could not be “the spectacle of a Damocles’ sword” hanging over the head of a journalist. In that backdrop, the action against Goswami is being perceived as an attempt at curbing media liberty.
The deceased’s family has been knocking on the doors for justice since the first half of this year. The victim has the right to seek fair and complete investigation. Article 21 of the Constitution guarantees the right to fair and impartial trial and hence the right to fair investigation. The Hon’ble Supreme Court in the case of State of Bihar v. P.P. Sharma has rightly held that unmerited and undeserved prosecution is an infringement of the guarantee under Article 21 of the Constitution. Therefore, although justice ought to be served, care should be taken that it is done within the peripheries of the law. Utilising the legal machinery as a means to suppress voices goes against the spirit of the Constitution and the vision of the nation’s founding parents.While the Hon’ble Supreme Court has rightly and successfully adjudicated the matter at hand, another important aspect which cannot be ignored is the immediate listing of Arnab’s SLP before the Supreme Court and the grant of bail on the hearing scheduled on the very next day. There are thousands who are sitting in jail because their matters are not getting listed, the pandemic situation making their lives worse. In such a situation, the listing of Mr. Goswami’s and other such controversial matters instantly, raise questions on the benefits that accrue to powerful people.Pointing out the same concerns, Mr. Dushyant Dave, President of the Supreme Court Bar Association has written a letter to the Secretary General of the Supreme Court and requested the letter to be placed before a bench. Further developments are awaited and it can only be hoped that a judicious outcome is achieved.
The views of the authors are personal and TGA does not endorse or take responsibility for any of them.
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2. AIR 2016 SC 744.
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4. 2018 SCC OnLine SC 1348.5. (2020) 3 SCC 637.
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6. (1992) Supp (1) SCC 222.CO