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"We cannot have the spectacle of a Damocles' sword hanging over the head of a journalist while conducting a public debate", the High Court held.
Arnab Goswami, who was accused of spreading communal disharmony in his primetime debate shows, was granted interim relief today, with the Bombay High Court suspending the two FIRs registered against the journalist (Arnab Goswami v. the State of Maharashtra).
While doing so, the High Court held that no prima facie case was made out against Goswami as was alleged in the two FIRs.
Why the FIRs were registered
In April this year, there was a large gathering of migrants that congregated in Mumbai’s Bandra on the day the first leg of the nationwide COVID-19 lockdown was to be lifted. The gathering purportedly had migrants who hoped to return home, but was termed as a conspiracy by Goswami in his debate program. He had also highlighted during the program that the people had all gathered near a mosque.
Some days later, two Sadhus were among those killed in what was essentially a case of mob lynching in Maharashtra’s Palghar. Running a debate on this issue, Goswami sought to question the silence and inaction of the Congress party and its chief Sonia Gandhi. The anchor asked if the same silence would have been maintained if a Maulvi or a Padri was killed in place of the Hindu Sadhus.
Consequently, two FIRs were registered against Goswami by the Maharashtra Police. In both, he was accused of communalising the incidents and causing communal disharmony.
The provisions of the Indian Penal Code (IPC) invoked against him are Sections 153 (wantonly giving provocation with intent to cause riot), 153A (promoting enmity between different groups on grounds of religion etc., and doing acts prejudicial to maintenance of harmony) 153B (imputations, assertions prejudicial to national-integration) and 295A (injuring or defiling place of worship with intent to insult the religion of any class).
Question before Bombay High Court
After initially approaching the Supreme Court in relation to these FIRs, Goswami had to ultimately move the Bombay High Court praying that these FIRs be quashed in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure.
One of the matters for consideration before the High Court was whether the FIRs make out the offences alleged against Goswami under Sections 153, 153A, 153B and 295A IPC. The Court noted in its order,
Precedents cited by the High Court
The Bench of Justices Riyaz Chagla and Ujjal Bhuyan cited the Bombay High Court’s verdict in the case of Gopal Vinayak Godse v. Union of India. In this case, Nathuram Godse’s book Gandhi hatya ani mee was forfeited by the Delhi administration for containing passages that allegedly promoted enmity between Hindu and Muslim communities. The High Court had held in this case that the allegedly offending passages would have to be read as a whole, and stray and isolated passages could not be relied on for proving a charge under Section 153A of the IPC.
The Court also assessed the rule of law as laid down by the Supreme Court in the case of Manzar Sayeed Khan v. the State of Maharashtra, where it was held that for promoting enmity between two groups, it is necessary for at least two groups to be involved and “merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections”.
Here too, it was stressed that isolated passages cannot be analysed to bring an act under the ambit of Section 153A. Even the intent to cause disharmony ought to be proved by the prosecution.
No prima facie case made out
Applying these principles to Goswami’s case, the Court examined the transcripts of his debate programs in question. It pointed out that Goswami fervently questioned the silence of Congress party and Sonia Gandhi on the incident. In doing so, Goswami also attacked the foreign origin of Sonia Gandhi.
The Court held that it cannot be concluded that religious communities were involved in the debate. It highlighted that the subjects of Goswami’s verbal attack on air were the Congress party and Sonia Gandhi, and that the religious communities cannot be said to have been part of the train of the discussion.
While dealing with the second FIR in relation to the Bandra migrant incident, the Court found that a mention was made by Goswami as regards the place of the large congregation that took place during COVID-19 pandemic. The Court noted that Goswami clarified during the program that there was no question of targeting any community.
"Thus, petitioner had clarified that there was no question of targeting any community. It was a fact that the incident had taken place outside the Jama Masjid but there was no question of any religion. He further clarified by saying that if the same incident had happened outside the Siddhivinayak temple or any other temple, he would have said the same thing and asked the panelists not to bring religion in every issue."
With these observations, the Court concluded that no prima facie case could be made out against Goswami under the provisions concerning spread of communal disharmony.
With a reference made to the Supreme Court’s observations in Goswami’s case in relation to freedom of the press, the Court said,
The Court thus admitted Goswami’s plea for quashing of the said FIRs and directed the police not to take any coercive action against the anchor. It also ordered for suspension of the two FIRs.
Goswami was represented by Senior Advocates Harish Salve and Milind Sathe, who were briefed by a team from Phoenix Legal.
Senior Advocate Kapil Sibal appeared for the State of Maharashtra. He was briefed by Raja Thakare & Chimalkar.
Additional Solicitor General Anil Singh appeared for the Central government.
Advocates Ashok Mundargi and Rizwan Merchant appeared for the other respondents.