Vinod Dua plea to quash FIR: Questions of Centre's accountability over migrant crisis, "layman" journalists raised as SC reserves verdict

The Supreme Court today reserved orders in the plea moved by journalist Vinod Dua challenging the FIR filed against him over certain comments made by him on his YouTube show, The Vinod Dua Show.

. Dua has also been accused of sedition, rioting-related offences, and offences concerning the disobedience of orders by a public authority.

. After hearing the final leg of submissions by Additional Solicitor General SV Raju and Solicitor General Tushar Mehta for the government authorities, Senior Advocate Mahesh Jethmalani for the complainant, and Senior Advocate Vikas Singh for Dua, the Bench of Justices UU Lalit and Vineet Saran today reserved orders in the matter.

. All parties have been given three days' time to submit written submissions, if any.

. Highlights of the submissions made today . Even if one cognisable offence is made out, the FIR cannot be quashed , ASG Raju reiterated today, adding that offences under Sections 153 and 188 of the Indian Penal Code (IPC), among other offences, are clearly made out in the FIR filed against Dua.

. He added that the cognizable offences of attempt or abetment to commit offences are also made out. The show was an indirect way of instigating people to riot, he contended, adding that an actual riot need not have happened for the offence to be made out.

. Further, arguments made that Dua's statements were in good faith need not be considered at this stage of the investigation, Raju added. When there are disputed questions of facts, the powers under Section 482 of the Code of Criminal Procedure (CrPC) or Article 32 of the Constitution cannot be exercised to quash the FIR, he said.

. Responding to a query on whether guidelines should be laid down when it comes to registration of cases against journalists , akin to those laid down in Jacob Mathew's case for the protection of doctors, Raju emphasised that those guidelines were issued since the registration of an FIR against doctors would be hazardous given the nature of duties performed by them. He added,

. "That would not include journalists because anyone can become a journalist. There are no qualifications. No expertise is required. A layman can become a journalist. There is no control like how the MCI exercises control for doctors. It (journalism) is not a profession, it is an activity." ASG Raju . Weighing in, Senior Advocate Jethmalani submitted,

" Today anyone can get up - anyone with a paid-up capital of 5 lakhs...loss of crores can get up and make allegations...even sedition is made out in this case, when you incite somebody to riot... "

. On the question of whether Dua, being a journalist, is entitled to the protective measure of a preliminary inquiry , Jethmalani argued,

" It is not that a journalist is bereft of a preliminary inquiry. (But) it will be left to the discretion of investigating agencies. "

. He added that only a certain category of person is given the benefit of a preliminary inquiry before carrying forward further criminal proceedings. There is no reason to bring journalists under such an exceptional category, it was submitted.

. "All exceptions have a rationale. Unfortunately, journalists, like other ordinary mortals, must not have a category for preliminary inquiry reserved for them." Senior Advocate Mahesh Jethmalani . Solicitor General Tushar Mehta added that Dua's was a simple case concerning whether the powers of Section 482 CrPC or Article 32 of the Constitution must be applied to quash the FIR.

If the Court finds that a case is made out, larger issues of journalistic expression etc. may not be looked into , Mehta submitted.

. Senior Advocate Vikas Singh contended that none of the ingredients of the offences alleged against Dua in the FIR have been made out . Referring to a transcript of Dua's show, Singh submitted that the anchor had stated information that was already reported on other channels.

. In one instance, Dua had quoted prominent economist Amartya Sen who said that food riots are likely if proper measures are not made during the COVID-19 lockdown. Singh also referred to the prevailing COVID-19 situation when Dua's show was aired. It was noted that the Central government had not considered migrant labour movement when the first lockdown was announced.

. Additionally, Singh highlighted that the Supreme Court was misled by the Central government when it came to hearings on the migrant crisis amid the COVID-19 lockdown. Singh argued,

. "A palpably wrong statement was made by SG Mehta on instructions that 'as on 11 am today, there is no person walking on the roads in an attempt to reach hometowns.' I'm surprised Milords why no action for perjury has been taken on this!" Senior Advocate Vikas Singh . Singh added that even the Supreme Court and the High Courts have taken serious note of the migrant crisis. He further submitted,

" There was a time when the Supreme Court could have done something (on the migrant crisis). If this wrong statement (by the Centre) had not been made, your Lordships would not have closed the proceedings the way it was closed. "

. Singh added,

"Who instructed the Solicitor General? Supreme Court has received so much flak. This is because of this false statement made and Supreme Court believing the statement."

. While this was the case, Singh registered an objection to Dua being accused of having triggered the migrant exodus amid the COVID-19 lockdown by way of his YouTube show.

. He argued further that the allegation that Dua's show had caused the migrant labour exodus amid the COVID-19 lockdown was only an afterthought . It was not part of the complaint to begin with, he submitted, remarking that,

" The said argument has been made only to somehow justify the FIR ."

. An argument was also made that a complaint for the disobedience of public authorities, including those under the Disaster Management Act, would not have been made by a private party (as is the case in this complaint).

. The Court also mused today on whether this question (of whether the competent authority has made the complaint) should be considered at the stage of cognisance by a court or before that.

. If this question is only taken up at the stage of cognisance and if an investigation is not barred in the meanwhile, the Bench raised concern that a person's personal liberty would be unduly affected.

. "... effectively the liberty of a person can be put to prejudice if the aggrieved public servant does not lodge a written complaint, then what? " Justice Lalit asked.

. The respondents, however, countered that no such concern may arise in offences under the IPC. Jethmalani submitted that the legislative wisdom will have to be respected. ASG Raju added that an accused person can also be set at liberty under Section 169 of the CrPC, for want of evidence.

. " When there are two interpretations possible, should we not accept the interpretation that subserves someone's rights under Part III (of the Constitution i.e. Fundamental Rights)? ", the Court asked.

. ASG Raju responded,

" There are no two interpretations. "

. Dua had moved the Supreme Court to quash the FIR registered by the Himachal Pradesh Police against him in relation to his YouTube program "Vinod Dua Show". It was contended by the journalist that the ingredients of the offence of sedition, with which he was charged, could not be made out.

. In June, the Apex Court issued interim directions to protect Dua from arrest in the matter, although the Bench declined to stay the FIR filed in Himachal Pradesh by a BJP leader.

.[Breaking] SC refuses to stay investigation against Vinod Dua on FIR filed in Simla, Police may question after giving prior notice. The Court had said that the FIR could not be stayed at that stage. It was also ordered that the Himachal Pradesh Police could question the journalist at his Delhi residence only after giving him prior notice of 24 hours.

Vinod Dua plea to quash FIR: Questions of Centre's accountability over migrant crisis, "layman" journalists raised as SC reserves verdict

Meera Emmanuel

Related Stories