Republic TV founder Arnab Goswami dominated media headlines for all sorts of wrong reasons. Fearing arrest on two occasions, the controversial anchor hired some of the most expensive lawyers in the country to approach the Supreme Court seeking relief. While the Supreme Court granted him a six-week protection from arrest, the scathing observation by the top court in its final judgment will give Goswami sleepless nights.
Goswami had first hired former Attorney General Mukul Rohatgi as his lawyer. Rohatgi succeeded in securing a three-week protection for his client. Goswami’s choice of lawyer for the second time was Harish Salve, who made a passionate plea in favour of his client, but couldn’t quite succeed in convincing the Supreme Court Bench of Justice DY Chandrachud and MR Shah.
The verdict came as a huge setback for the controversial TV anchor after days of criticism from the news consuming public and entertainment artists such as Mulk director Anubhav Sinha, actress Kavita Kaushik and Saif Ali Khan’s co-star Kubbra Sait.
Goswami is facing a criminal investigation for allegedly promoting communal disharmony through his coverage of the Palghar lynching, which saw two Hindi monks being mercilessly killed by an enraged mob. He was accused of adding communal colour to what was an act of mindless violence. This despite Maharashtra Home Minister Anil Deshmukh’s clarification that the religious background of all those arrested (over 100 of them) for killing two Hindu monks and their driver was the same as the murdered seers. This aptly clarified that there was no Hindu-Muslim angle to the monks’ murder as projected by Goswami through his broadcast.
In his high-octane TV debate broadcast on Republic Bharat on 21 April (Watch below), Arnab Goswami had also questioned the likes of Bollywood personalities such as Naseeruddin Shah, Javed Akhtar and Shabana Azmi for remaining silent. He had said, “Those who beat their chests for a particular community (Muslims), are silent today.”
During the hearing in the Supreme Court on 11 May, Goswami’s lawyer Harish Salve made a fierce argument invoking freedom of expression enshrined in the Indian constitution. Salve said that his petition on behalf of Goswami raised ‘wider issues’ implicating the freedom of speech and expression of a journalist to air views that fall within the protective ambit of Article 19(1)(a). Salve argued that his client Goswami was justified in invoking this jurisdiction and it was necessary for the top court to lay down safeguards that protect the democratic interest in fearless and independent journalism.
The Supreme Court Bench appeared to only partially agree with his argument but made scathing notes in its judgment.
It said, “Article 32 of the Constitution constitutes a recognition of the constitutional
duty entrusted to this Court to protect the fundamental rights of citizens….The
exercise of that fundamental right is not absolute and is answerable to the legal
regime enacted with reference to the provisions of Article 19(2).”
The Supreme Court Bench of Justice Chandrachud and Shah also reminded Goswami that his profession as a journalist did not confer additional privileges to him than that of ordinary citizens. It said, “Our decisions hold that the right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express. But we must as a society never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position.”
The court made scathing notes while rejecting Arnab Goswami’s plea to transfer the investigation from the Mumbai Police to the CBI, which reports to the BJP government at the Centre. The Bench said;
The petitioner has sought, for reasons outlined earlier, the transfer of the
investigation to CBI. Before we elucidate the law on the subject, we must emphasize at the outset that the transfer of FIR 238 of 2020 from the Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai was with the consent of the petitioner and on his request. The reason why the investigation of the FIR was transferred to the NM Joshi Police Station in Mumbai was because that was the police station at which an earlier FIR had been lodged by the petitioner in respect of the incident when he and his spouse were allegedly obstructed by twopolitical activists on their way home at midnight on 23 April 2020. Having accepted the transfer of the investigation from Police Station Sadar, District Nagpur City to NM Joshi Marg Police Station in Mumbai, the petitioner now seeks to question that very investigation by the Mumbai police.
The Judges did not stop here. They schooled Goswami explaining why he was being way too unreasonable in his expectation to have the criminal investigation transferred from the Mumbai Police to the CBI. The verdict said;
The transfer of an investigation to the CBI is not a matter of routine. The precedents of this Court emphasise that this is an “extraordinary power” to be used “sparingly” and “in exceptional circumstances”……The Court reiterated that an investigation may be transferred to the CBI only in “rare and exceptional cases”. One factor that courts may consider is that such transfer is “imperative” to retain “public confidence in the impartial working of the State agencies.” This observation must be read with the observations by the Constitution Bench in CPDR, West Bengal that mere allegations against the police do not constitute a sufficient basis to transfer the investigation.
Then came a crude reminder for Goswami that the Republic TV founder mustn’t forget that he was an accused and had ‘no say in the matter of appointment of the investigating agency.’ Goswami’s lawyer had complained that the Mumbai Police had grilled the Republic TV CFO for 6 hours, asking what relation a CFO would have with a news broadcast that allegedly disturbed communal harmony. Salve also said that Goswami was grilled for over 12 hours, adding that the nature of the FIR showed it was ‘an arm twisting tactic.’
The Supreme Court rejected that assertion as it explained in great detail. It said;
The principle of law that emerges from the precedents of this Court is that the power to transfer an investigation must be used “sparingly” and only “in exceptional circumstances”. In assessing the plea urged by the petitioner that the investigation must be transferred to the CBI, we are guided by the parameters laid down by this Court for the exercise of that extraordinary power. It is necessary to address the grounds on which the petitioner seeks a transfer of the investigation.
The petitioner now seeks to preempt an investigation by the Mumbai police. The basis on which the petitioner seeks to achieve this is untenable. An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in regard to the investigating agency. The line of interrogation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under investigation/interrogation.
The judgment authored by Justices Chandrachud and Shah also held that ‘so long as the investigation does not violate any provision of law, the investigation agency is vested with the discretion in directing the course of investigation, which includes determining the nature of the questions and the manner of interrogation.’
The Bench said;
In adopting this view, this Court relied upon its earlier decisions in State of Bihar v P P Sharma35 and Dukhishyam Benupani, Asst. Director, Enforcement Directorate (FERA) v Arun Kumar Bajoria36 in which it was held that the investigating agency is entitled to decide “the venue, the timings and the questions and the manner of putting such questions” during the course of the investigation.
The Bench continued;
The investigating agency is entitled to determine the nature of the questions and the period of questioning. The Petitioner was summoned for investigation on one day. Furthermore, the allegation of the Petitioner that there is a conflict of interest arising out of the criticism by him of the alleged failure of the State government to adequately probe the incident at Palghar is not valid. The investigation of the Palghar incident is beyond the territorial jurisdiction of the Mumbai police.
The Supreme Court Bench also said that it disagreed with Solicitor General Tushar Mehta who too had favoured transferring the investigation from the Mumbai Police to the CBI.
The investigating agency has placed on the record what it believes is an attempt by the petitioner (Goswami) to discredit the investigation by taking recourse to the social media and by utilizing the news channels which he operates. Social media has become an overarching presence in society. To accept the tweets by the petitioner and the interview by the complainant as a justification to displace a lawfully constituted investigation agency of its jurisdiction and duty to investigate would have far-reaching consequences for the federal structure. We are disinclined to do so.
The top court was referring to the application moved by the Maharashtra government seeking appropriate directions to insulate the investigating agency ‘from any pressure, threat or coercion from’ Goswami. The Maharashtra Police had referred to tweets posted by Goswami’s TV channel Republic Bharat attempting to intimidate the investigating agency wielding his media power. One of the tweets posted by Republic Bharat on 26 April had said that Goswami will make himself available for questioning but the cops should also show a similar urgency to the FIR filed by him in connection with the alleged attack on him and his wife.
Supreme Court terms Goswami’s allegation ‘unsubstantiated’
Much to the disappointment of Goswami, the Supreme Court termed Goswami’s allegations of conflict of interest against the Mumbai Police chief ‘unsubstantiated.’ It said;
An individual under investigation has a legitimate expectation of a fair process which accords with law. The displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI. Courts assume the extraordinary jurisdiction to transfer an investigation in exceptional situations to ensure that the sanctity of the administration of criminal justice is preserved. While no inflexible guidelines are laid down, the notion that such a transfer is an “extraordinary power” to be used “sparingly” and “in exceptional circumstances” comports with the idea that routine transfers would belie not just public confidence in the normal course of law but also render meaningless theextraordinary situations that warrant the exercise of the power to transfer theinvestigation. Having balanced and considered the material on record as well as theaverments of and submissions urged by the petitioner, we find that no case of the nature which falls within the ambit of the tests enunciated in the precedents of thisCourt has been established for the transfer of the investigation.
Goswami ‘chided’ for not approaching high court
The Supreme Court also appeared to chide Goswami for not utilising the three weeks of protection from arrest to seek a judicial remedy from the Bombay High Court. The Bench used this argument to justify why Arnab Goswami Goswami’s plea for the quashing of the FIR was untenable. It said;
Despite the liberty being granted to the petitioner on 24 April 2020, it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC, which we hereby do. The petitioner has an equally efficacious remedy available before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, we are of the opinion that the petitioner must be relegated to avail of the remedies which are available under the CrPC before the competent court including the High Court.
The Bench of Justice Chandrachud and Shah had faced plenty of criticism last week as felt that Arnab Goswami was unnecessarily being accorded special treatment. However, going by their verdict on Tuesday, it seems they have made considerable efforts in redeeming themselves and restoring people’s faith in the Indian judiciary.
Read the full judgment here;