In the Supreme Court of India Criminal Original Jurisdiction

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

I. A. No. OF 2021

IN

WRIT PETITION (CRIMINAL) No. 106 OF 2021

IN THE MATTER OF:

Kishorechandra Wangkhemcha & Anr … Petitioners

VERSUS

Union of India … Respondent

AND IN THE MATTER OF:

Foundation of Media Professionals

… Proposed Intervenor

PAPER BOOK

[FOR INDEX PLEASE SEE INSIDE]

ADVOCATE FOR THE INTERVENOR: RAHUL BHATIA

INDEX

S. Particulars Page No. No. 1. Application for Intervention 1 -35 2. Annexure-A: 36-54 Copy of the MOA of the Intervenor Society 3. Annexure-B: 55 Copy of the Aurhorization letter to file the application 4. Annexure-C: 56-88 copy of the report released by Free Speech Collective entitled “Behind Bars- Arrest and Detention of Journalists in India” 5. Vakalatnama 89

1

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

I. A. No. OF 2021

IN

WRIT PETITION (CRIMINAL) No. 106 OF 2021

IN THE MATTER OF:

Kishorechandra Wangkhemcha & Anr … Petitioners

VERSUS

Union of India … Respondent

AND IN THE MATTER OF:

Foundation of Media Professionals B-57, Second Floor, New Rajinder Nagar, New Delhi

… Proposed Intervenor

APPLICATION FOR INTERVENTION

To The Hon’ble Chief Justice of India and His Companion Judges of the Supreme Court of India The humble application of the applicant above named

MOST RESPECTFULLY SHEWETH:

1. The captioned Writ Petition has been filed challenging the

constitutionality of section 124 A of the Indian Penal Code, 2

1860 (“Code”), encapsulating the crime of sedition, as has

been preserved since the colonial era. The Petitioners contend

that the crime of sedition is outdated and obsolete, given the

various enactments which pointedly punish any and all acts

against the State. The Petitioners further contend that the crime

of sedition does not amount to a reasonable restriction on the

fundamental right of speech and expression under Article

19(1)(a) of the Constitution of India (“Constitution”), as it

promotes a miscellany of frivolous cases against media

professionals, ruthlessly curtailed in their employment.

2. It is submitted that Professor Vincent Blasi’s opinion in his

paper – ‘The Pathological Perspective and the First

Amendment, 85 COLUM. L. REV 449 (1985)’ isapposite for

consideration of the seminal question, involved in this writ

petition, as to whether the offence of ‘Sedition’ ought to

continue in the statute books of an independent sovereign

democratic republic. Professor Blasi argues:

“Constitutions are designed to control, or at least

influence, future events-political events, adjudicative 3

events, to some extent even interactions between private parties. Yet the future is unknowable, largely unpredictable, and inevitably variable. At any moment there exists a short-run future, a long-run future, and a future in between. The future is virtually certain to contain some progress, some regression, some stability, some volatility. How is a constitution supposed to operate upon this vast panoply?

…

My thesis is that in adjudicating first amendment disputes and fashioning first amendment doctrines, courts ought to adopt what might be termed the pathological perspective. That is, the overriding objective at all times should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically. The first amendment, in other words, should be targeted for the worst of times.” 4

3. The Applicant submits that the fundamental right to freedom of speech and expression is one of the most cherished Fundamental Rights as it guarantees the Media’s right to free speech and expression in a democracy.

“19. Protection of certain rights regarding freedom of speech etc (1)All citizens shall have the right (a) to freedom of speech and expression;”

4. Fundamental Rights guaranteed under Article 19(1)(a) of the Constitution can only be restricted under the subject matters mentioned in Article 19(2) which sets out the permissible restrictions and states:

“Art. 19(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

5. It is a settled position of law that the provisions of Article 19(2) of the Constitution of India deserve to be construed strictly so 5

as to ensure enjoyment of Freedom of Speech and Expression as a Fundamental Right guaranteed under Article 19(1)(a) of the Constitution of India.

6. A very brief conspectus of some relevant decisions of the Hon'ble Supreme Court on the fundamental right to freedom of speech and expression are given below:

a. In Bennett Coleman & Co. versus Union of India (1972) 2 SCC 788, the Hon’ble Court held that intellectual advances made by civilisation would have been impossible without freedom of speech and expression and at any rate, political democracy is based on the assumption that such freedom must be jealously guarded. In the above matter the Hon’ble Court, inter alia, opined that:- “……Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working, of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so Subtle. But, like other liberties, this also must be limited."

b. In Express Newspapers Pvt. Ltd. & Ors. versus Union of India & Ors (1986) 1 SCC 133,Hon'ble Supreme Court 6

observed that:-

“……..Democracy relies on the freedom of the press. It is the inalienable right of everyone to comment freely upon any matter of public importance. This right is one of the pillars of individual liberty-freedom of speech, which our Court has always unfailingly guarded.”

c. In Sakal Papers Pvt. Ltd. & Ors. versus Union of India & Ors. AIR 1962 SC 305, the Hon’ble Supreme Court observed that:-

“……….The right to freedom of speech and expression is an individual right guaranteed to every citizen by Article 19(1)(a) of the Constitution. There is nothing in clause (2) of Article 19 which permits the State to abridge this right on the ground of conferring benefits upon the public in general or upon a section of the public. It is not open to the State to curtail, or infringe the freedom of speech of one for promoting the general welfare of a section or a group of people unless its action could be justified under a law competent under clause 7

(2) of Article 1.”

d. In Bennett Coleman & Co. versus Union of India (supra), the Court indicated that the extent of permissible limitations on this freedom are indicated by the fundamental law of the land itself viz. Art 19(2) of the Constitution. It was laid down that permissible restrictions on any fundamental right guaranteed under Part III of the Constitution have to be imposed by a duly enacted law and must not be excessive i.e., they must not go beyond what is necessary to achieve the object of the law under which they are sought to be imposed. e. In LIC versus. Manubhai Shah (1992) 3 SCC 637, the Hon’ble Supreme Court observed:-

“……….Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution” . The Hon’ble Court went on to state that “But since permissible restrictions, albeit reasonable, are all the same restrictions on the exercise of the fundamental right under Article 19(1)(a), such restrictions are bound to be viewed as anathema, in that, they are in the nature of 8

curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them. The burden would, therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law.” f. The Hon’ble Supreme Court in its judgement in Shreya Singhal vs Union of India (2015)5 SCC 1observed that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). The Hon’ble Supreme Court observed that: “…………..Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action.”

The said judgementsre-emphasized and re-enforced the

cardinal principle that the restrictions on the exercise of rights

under Article 19(1)(a) can only be strictly in accordance with 9

the principles of Article 19(2) and thwarted the attempt to

expand the scope of Article 19(2) and going beyond the

jurisdiction to impose restriction as envisaged under the said

provision.

A perusal of Article 19 (2) reveals that any legislation which

restricts the freedom of speech and expression guaranteed

under Article 19(1) (a) must: (i) be reasonable; (ii) have a

rational nexus with the limited objectives/grounds provided for

in Article 19 (2), namely sovereignty and integrity of India, the

security of the State, friendly relations with foreign States,

public order, decency or morality or in relation to contempt of

court, defamation or incitement to an offence.

7. The Applicant submits that India acceded to the ICCPR in

1979. Article 19 of the Covenant reads as follows:

“(1) Everyone shall have the right to hold opinions without

interference;

(2) Everyone shall have the right to freedom of expression, this

right shall include freedom to seek, receive and impart

information and ideas of all kinds, regardless of frontiers, 10

either orally, in writing or in print, in the form of art or

through any other media of his choice.”

8. It is most humbly submitted that these are times when the

internet has not only completely revolutionized the modes of

communication, but also the equipped nation states to exercise

control overthe minutest of actions, thoughts and speech of

their citizens. Therefore, it is most humbly submitted and urged

that this Hon’ble Court should adopt the ‘pathological

perspective’ when considering this all-important question

involved in the present writ petition.

I. BACKGROUND OF THE INTERVENOR

9. The Applicant society, Foundation for Media Professionals, is a

not-for-profit society, set up on 25.04.2008, bearing

registration number S62029/2008, under the Societies

Registration Act, 1860 established with the objective of

defending and expanding freedom of the press. To fulfil its

objective, the Applicant society provides inputs on legislation

on matters affecting the new media either directly or indirectly 11

and makes appropriate representations to the Parliament and

other institutions and organisations at all levels of government

and public life.

10. As an organization committed to protecting the freedom of

speech and expression and the rights ofall journalists, the

Applicantsociety has, over the years, preferred a medley of

cases against any and all actions which hinder free exercise of

the fundamental right protected under Article 19(1)(a) of the

Constitution of India, being that of freedom of speech and

expression. Notably, the Applicant society had previously

before this Hon’ble Court challenged criminalization of the

defamation under the Indian Penal Code[IPC] as being

violative of the fundamental rights of journalists [Foundation

of Media Professionals vs Union of India (2015) 9 SCC 252].

Further, the Applicant society had spearheaded the litigations

against shutdown of media and communications in Jammu and

Kashmir in 2019 and 2020 [Anuradha Bhasin v. Union of

India, (2020) 3 SCC 637; Foundation of Media Professionals

vs State (UT of J&K) (2020) 5 SCC 746], and also was heard 12

by the Constitutional Bench of this Hon’ble Court as

intervenors in the “Media Guidelines Case” [Sahara India Real

Estate Corp. Ltd. Vs. Securities & Exchange Board of India

(2012) 10 SCC 603].

11. The Petitioner society’s founder members include eminent

journalists, namely, Amitabh Thakur, Aniruddha Bahal,

Ashutosh, Madhu Trehan, Manoj Mitta, S. Srinivasan, Sanjay

Pugalia, Sanjay Salil, Shashi Shekhar, Vineet Narain, and

Vivian Fernandes who come from the field of both print and

electronic media journalism.

True copy of the Memorandum of Association and rules

and regulations of the Petitioner is annexed hereto and marked

as ANNEXURE- A. True copy of the Authorization to file this

application is annexed hereto and marked as ANNEXURE- B.

12. It is submitted that the Applicant Society’s core objective is to

protect the freedom of speech and expression, and as such the

Applicant is vitally interested in the outcome of the instant Writ

Petition. Therefore, the Applicant seeks leave of this Hon’ble 13

Court to intervene in theinstant Writ Petition and make

submissions.

II. COLONIAL ORIGINS OF LAW ON SEDITION

13. The crime of sedition was devised by Lord Macaulay in the

Draft Penal Code, 1837, wherein the punishment proposed for

sedition was life imprisonment. Lord Macaulay regarded

offences against the State as one of the serious crimes, for

which punishment must be imposed not only after the crime is

committed. Lord Macaulay observes in the ‘Report on Indian

Penal Code’ that

“If the Governor-general in Council has the legal power

to fix the punishment of a subject who should in the

territories of the East India Company, conspire the death

of the King, or levy war against the King, then the

Governor-general in Council has the legal power to fix

that punishment at a fine of one anna; and it is plain that

a law which should fix such a fine as the only

punishment or regicide and rebellion, would be a law 14

virtually absolving all subjects within the territories of

the East India Company from their allegiance.”

14. Lord Macaulay explains in his ‘Report on Indian Penal Code’

that the abetment of crimes against State is put on a different

footing than abetment of any other crime for the reason as

extracted below:

“As the penal law is impotent against a successful rebel,

it is consequently necessary that it should be made

strong and sharp against the first beginning of rebellion,

against treasonable designs which have been carried no

farther than plots and preparations”

15. It is notable that the provision of sedition (as section 113 of the

Draft Penal Code, 1837) was not included in the IPC when it

was enacted in 1860. The omission was rectified by Mr. James

Stephen by way of an amendment in 1870, citing the reason

that if section 124-A is not included under the IPC, the

seditious expressions will be governed by the more severe

common law of England.It is relevant that the inclusion of 15

section 124-A was conditioned on preserving freedom of

speech and not to endanger it.

16. The colonial era rulings on section 124-A of the IPC focused

on the term ‘disaffection’ as contained in the provision, while

interpreting the scope of the provision, explaining it to mean

inter alia ill-will or dislike towards the government [Queen

Emperor v. Jogendur Chandra Bose (1892) 19 ILR Cal 35;

Queen-Empress v. Ramchandra Narayan (1897) I.L.R. 22 Bom.

152; Queen Empress v. Amba Prasad (1898) ILR 20 All 55]. It

was established by the courts that an actual rebellion or mutiny

or forcible resistance is not necessary for an act to constitute

sedition. Therefore, the courts had accepted that this crime

without the requirement of mens rea or a palpable measure of

consequence is dependent only upon the temperament and

irritability of the government. This was done in the context of a

colonial Government whose sole intent was to crush the

independence movement, and not out of democratic instincts.

16

17. The uncertain measure of what constitutes seditious speech

sparked a tussle between free speech and the law on

sedition,which has been underway since the colonial era. In

1898, explanation III was inserted to the provision to clarify

that fair criticism of the government shall not amount to

sedition. The observations made by the Select Committee while

inserting such provisions give an insight into the displeasure of

the British in limiting the scope of the provision, which limited

their powers to curtail rebellion.

18. The tendency of the British to ensure complete allegiance and

compliance of the Indian citizens not only in action but also in

thought, is blatantly evident from the evolution of the law on

sedition. It is relevant to note, however, that the Indian courts

have largely crusaded against regarding every unpleasant word

as ‘actionable’ [Kamal Krishna Sircar v. Emperor, AIR 1935

Cal 636], championing the cause of the media. However, with

the evolution of the internet-dependent society, it has become

relevant more than ever, to scrutinize laws on sedition,

particularly as such laws are instruments of the Government 17

for creating fear, coercion and harassment of journalists and

media persons for revealing inconvenient truths.

III. DELIBERATIONS OF THE CONSTITUENT

ASSEMBLY

19. The Constituent Assembly was staunchly against restricting the

freedom of speech and expression with sedition. In fact, the

Constituent Assembly was unanimous in having the word

‘sedition’ deleted from the draft Constitution.

20. While opposing inclusion of sedition as a curtailment of

freedom of speech and expression, Prof. K.T. Shah had

observed as follows:

“This Constitution, Sir, was drafted at a time when

people were going through extraordinary stress and

strain…

…in the then prevailing goonda raj it was necessary to

restrict some how the freedom of the individual… We

have had no doubt the unfortunate experiences in which

individuals moved by whatever sentiments had tried to 18

exert violence and do injury to their fellows which no

civilised State can put up with. It was therefore at the

time necessary that such individuals should be

apprehended immediately…

…Constitution should be framed, not for these

abnormal situations, but normal situations and for

reasonable people who it must be presumed will be

normally law-abiding and not throw themselves entirely

to the mercy of these goondas…

…We have in this Constitution as we have in many other

Constitutions provisions relating to a state of emergency

where the normal Constitution is suspended… But we

must not, when framing a constitution, always assume

that this is a state of emergency, and therefore omit to

mention such fundamental things as civil liberties.”

21. There has been a marked change in the governmental structure

and design since independence, and therefore, following the

sentiments of Prof. K.T. Shah, it is submitted that our

community is in dire need of transparency in the government 19

and open dialogue on issues, which is the only way to promote

further growth and development and to ensure that our society

does not fall back on old patterns of intolerance. It is submitted

that in the last decade, this Hon’ble Court has pronounced

landmark judgments revolutionizing the Indian community and

state of mind, by inter alia decriminalizing adultery,

homosexuality, and recognizing the third gender. It is

submitted that these pronouncements signify the evolution of

our society as an independent nation rid of colonial-era

mindsets about curtailment of free speech and expression.

22. In this context, it is also relevant to note the statements of Mr.

K.M. Munshi on omission of the word ‘sedition’ from the

Constitution:

“…public opinion has changed considerably since and

now that we have a democratic Government a line must

be drawn between criticism of Government which should

be welcome and incitement which would undermine the

security or order on which civilized life is based, or

which is calculated to overthrow the State. Therefore the 20

word ‘sedition’ has been omitted. As a matter of fact the

essence of democracy is Criticism of Government. The

party system which necessarily involves an advocacy of

the replacement of one Government by another is its only

bulwark; the advocacy of a different system of

Government should be welcome because that gives

vitality to a democracy.

…the equivocal word sedition only is sought to be

deleted from the article. Otherwise an erroneous

impression would be created that we want to perpetuate

124-A of the I.P.C. or its meaning which was considered

good law in earlier days. Sir, with these words, I move

this amendment.”

23. It was with such deliberate opinions and faith in the people of

the country, that the term ‘sedition’ was not given a place in the

Constitution, as the same wasn’t considered to be a reasonable

restriction on the fundamental right of free speech and

expression.

21

IV. JUDICIAL JURISPRUDENCE ON SEDITION

24. The crime of seditious speech not being accepted in the

Constitution, was nevertheless retained in the IPC under section

124-A of Code, used time and again by the ruling government

to suppress any and all forms of dissent.

25. 124A IPC reads as under :

Sedition.—Whoever, by words, either spoken or written,

or by signs, or by visible representation, or otherwise,

brings or attempts to bring into hatred or contempt, or

excites or attempts to excite disaffection towards the

Government established by law in India, shall be

punished withimprisonment for life, to which fine may be

added, or with imprisonment which may extend to three

years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes

disloyalty and all feelings of enmity. Explanation 2.—

Comments expressing disapprobation of the measures of

the Government with a view to obtain their alteration by 22

lawful means, without exciting or attempting to excite

hatred, contempt or disaffection, do not constitute an

offence under this section. Explanation 3.—Comments

expressing disapprobation of the administrative or other

action of the Government without exciting or attempting

to excite hatred, contempt or disaffection, do not

constitute an offence under this section.

26. Soon after the enforcement of the Constitution, the Government

of Madras purported to issue a ban on a journal called Cross

Roads, printed, published and edited by Mr. Romesh Thapar.

This Hon’ble Court, however, refused to allow such a ban

observing that only where a danger to the State is involved, can

the law of sedition be applied[Romesh Thapar vs. State of

Madras AIR 1950 SC 124]. This Hon’ble Court while holding

the Madras Maintenance of Public Order Act, 1949 as

unconditional, observed:

“Where a law purports to authorise the imposition of

restrictions on afundamental right in language wide

enough to cover restrictions both within andwithout the 23

limits of constitutionally permissible legislative action

affecting such right,it is not possible to uphold it even so

far as it may be applied within the constitutionallimits,

as it is not severable. So long as the possibility of its

being applied for purposesnot sanctioned by the

Constitution cannot be ruled out, it must be held to be

whollyunconstitutional and void. In other words, clause

(2) of Article 19 having allowed theimposition of

restrictions on the freedom of speech and expression

only in cases wheredanger to the State is involved, an

enactment, which is capable of being applied tocases

where no such danger could arise, cannot be held to be

constitutional and validto any extent.”

27. A similar reasoning was adopted by this Hon’ble Court when

the Chief Commissioner of Delhi sought to pre-censor the

contents of an English weekly called the Organizer, run by Mr.

Brij Bhushan. This Hon’ble Court referred back to its judgment

in Romesh Thapar case (supra) and observed that “every

freeman has an undoubted right to lay what sentiments he 24

pleases before the public; to forbid this, is to destroy the

freedom of the press” [Brij Bhushan vs. Union of India AIR

1950 SC 129]. This Hon’ble Court while rendering the

judgment held the East Punjab Public Safety Act, 1949 as

unconstitutional.

28. In 1962, the constitutionality of section 124-A IPC was

challenged before a five-member bench of this Hon’ble Court

in Kedar Nath Singh vs. State of BiharAIR 1962 SC 955,

whereunder this Hon’ble Court considered the judgments in

Romesh Thapar case (supra) and Brij Bhushan case (supra),

and proceeded to rationalize the law on sedition by

distinguishing between ‘government established by law’ and

the person engaged in carrying out the administration. This

Hon’ble Court observed the following:

“any written or spoken words, etc. which have implicit in

them the idea of subverting Government by violent

means, which are compendiously included in the term

“revolution”, have been made penal by the section in

question. But the section has taken care to indicate 25

clearly that strong words used to express disapprobation

of the measures of Government with a view to their

improvement or alteration by lawful means would not

come within the section…

…disloyalty to Government established by law is not the

same thing as commenting in strong terms upon the

measures or acts of Government, or its agencies, so as to

ameliorate the condition of the people or to secure the

cancellation or alteration of those acts or measures by

lawful means, that is to say, without exciting those

feelings of enmity and disloyalty which imply excitement

to public disorder or the use of violence.”

29. With the above observations, this Hon’ble Court proceeded to

debunk the argument that use of vigorous words in writing

directed to a strong criticism of measures of the government or

acts of public officials come within the penal section.

Therefore, the test for sedition as per this Hon’ble Court laid

down in Kedar Nath Singh case (supra) is to see whether the 26

seditious act subverts the institution of the government or the

persons carrying out the administration.

30. It is in this background that the Law Commission of India in its

Consultation Paper dated 30th August 2018 on ‘Sedition’ notes

as under:

“8.2 Every irresponsible exercise of right to free speech

and expression cannot be termed seditious. For merely

expressing a thought that is not in consonance with the

policy of the Government of the day, a person should not

be charged under the section. Expression of frustration

over the state of affairs , for instance , calling India ̳no

country for women‘ , or a country that is ̳racist‘ for its

obsession with skin colour as a marker of beauty are

critiques that do not ̳threaten‘ the idea of a nation .

Berating the country or a particular aspect of it, cannot

and should not be treated as sedition. If the country is

not open to positive criticism, there lies little difference

between the pre- and post-independence eras. Right to 27

criticise one’s own history and the right to offend are

rights protected under free speech.”

[Emphasis supplied]

31. It is submitted that the test laid down in Kedar Nath Singh case

(supra) offers a pedantic approach towards the crime of

sedition, without taking into consideration that the very

existence of the provision incriminating seditious speech,

combined with the fact that the same is a cognizable offence, is

an excuse for public officials to harass media professionals and

journalists, who often spend months in jail awaiting their trial

to adjudge whether their actions are seditious or not. As one of

the rare crimes, which do not require an ingredient of mens rea,

the imposition of section 124-A IPC over journalists who are

merely doing their jobs, is arbitrary,excessive and completely

disproportionate.

32. It is submitted that this Hon’ble Court while rendering the

judgment in Kedar Nath Singh case (supra) had proceeded on

the reasoning that the citizens require some hand-holding to get

used to the idea of a democratic nation, as opposed to colonial 28

imperialism whereunder the culture of rebellion was

predominant. However, in the last sixty years since the Kedar

Nath Singh case (supra), there has been a sharp rise in the

literacy and awareness of the citizens of this country, and the

fundamental rationale that forms the very basis of Kedar Nath

Singh (supra) no longer exists, and therefore requires

reimagination by this Hon’ble Court especially in light of the

rise of youth activism, independent journalism, and progressing

levels of education.

33. In this context, it is relevant to refer to this Hon’ble Court’s

judgment in Shreya Singhal vs. Union of India (supra),

wherein while deliberating on the constitutionality of section

66A of the Information Technology Act, 2000, this Hon’ble

Court referred to the test of ‘chilling effect’. This Hon’ble

Court has held the vice of ‘chilling effect’ to be a good ground

for declaring a law unconstitutional:

“We, therefore, hold that the Section is unconstitutional

also on the ground that it takes within its sweep

protected speech and speech that is innocent in nature 29

and is liable therefore to be used in such a way as

to have a chilling effect on free speech and would,

therefore, have to be struck down on the ground of

overbreadth.”

34. It is submitted that section 124-A IPC casts such a wide net on

the speech andwriting of media professionals, that virtually any

opinion on any subject would be covered by it, as any serious

opinion against the governmental measures and actions, are

presumed anti-government (or anti-national, to use the

prevalent street slang) and seditious by the public officials. In

fact any valid criticism or opinion of any legislation, policy or

measures taken by the Government is interpreted to mean

‘disaffection towards the Government established by law’

The term ‘disaffection towards the Government established by

law’ is vague, ambiguous, is capable of being interpretated

subjectively and is regularly misused as a tool to persecute

political dissent. Therefore Section 124 A IPC is not in

consonance with the principles of law pronounced in

various judgments of the Hon’ble Supreme Court, including 30

in the judgment in Shreya Singhalvs Union of India

(supra).The Section gives excessive and concentrated

executive discretion inbuilt into it which permits the blatant

abuse, is a non bailable offence where a person can be given

imprisonment for life.

35. In testing the constitutionality of a criminal offence presently

engrafted and understood in law, the right of the press to report

must be adjudged from the perspective of the supervening and

all-important right of the public to know in any modern

democracy.

36. The report released by Free Speech Collective entitled “Behind

Bars- Arrest and Detention of Journalists in India” reveals that

67 cases have been lodged against journalists in 2020 as

opposed to 10 cases in 2010. The sharp increase in the number

of cases demonstrate the rising censorship imposed upon the

media professionals under the garb of sedition and similar

offences under state statutes. 31

True copy of the report released by Free Speech

Collective entitled “Behind Bars- Arrest and Detention of

Journalists in India” is annexed as ANNEXURE C.

37. It is now settled that a legislation which, in its operation and

effect, is disproportionately harsh or onerous to the object

sought to be achieved or the mischief sought to be addressed,

is not a "reasonable restriction" within the meaning of Article

19(2) of the Constitution and would not pass muster under that

provision. Sections 124A of the Indian Penal Code fails this

standard or test of a "reasonable restriction" under Article 19(2)

of the Constitution for the reasons stated herein and therefore,

even though " sedition" may be a ground for enacting law to

abridge the right to freedom of speech and expression

guaranteed under Article 19(1)(a) of the Constitution, Section

124A IPC does not fulfill the constitutional requirements of

being such reasonable restriction.

38. The Applicant submits that many countries including the

United Kingdom the legislation on sedition has been repealed. 32

39. It is submitted that this Hon’ble Court inS. Khusboo v.

Kanniamal & Anr AIR 2010 SC 3196 had appropriately opined

that “we must lay stress on the need to tolerate unpopular

views in the socio-cultural space. The framers of our

Constitution recognized the importance of safeguarding this

right since the free flow of opinions and ideas is essential to

sustain the collective life of the citizenry. While an informed

citizenry is a pre-condition for meaningful governance in the

political sense, we must also promote a culture of open

dialogue when it comes to societal attitudes”.

40. It is submitted that in the global age of internet, where free flow

of ideas has attained more significance than ever, it is pertinent

that the unreasonable restriction of sedition be abolished,

especially vis-à-vis the media professionals who are impeded in

their jobs with arbitrary arrests and detainment. It is submitted

that in this day and age, the crime of sedition finds no place in

our laws and it is humbly prayed that section 124-A of the IPC

be ruled unconstitutional in view of the reasons detailed in

preceding paragraphs. 33

PRAYER

In view of the above, it is therefore most respectfully prayed

that this Hon’ble Court may be pleased to:

(i) Permit the Applicant to Intervene in the aforesaid Writ

Petition;

(ii) pass such other orders as this Hon’ble Court may deem fit

and proper in the facts and circumstances of the present

case and thereby render justice.

Drawn by: Filed By:

Kotla Harshavardhan & Vishakha Gupta

Advocates (RAHUL BHATIA)

Advocate for the Applicant

09.07.2021 New Delhi 34 35 36 MEMORANDUM OF ASSOCIATION

' .*w '8 r*A 1. NAME b'c d* C. The naMe o;th$~ociety is :- "Foundation For Media Professionals" . . - . 2. REGISTERED OFFICE

The registered office of the Society will be at C/o S.M.VARMA & Co. B-57, 2ndFloor, New Raj inder Nagar, New Delhi - 1 10 060. ._;. -v-- 3. AREA OF OPERATION

The area of operation of the society shall be from Delhi.

All the aims & objects for which the society is established are non-commercial in nature and shall be not for profit. They are

I. To work for the enhancement of the journalistic profession in India, print, broadcast. web, and other platforms that may develop in the future. , 2. To be vigilant to and deal with any measure or pronouncement of any organ of the

mr<-% Ti state impacting the freedom of speech and expression and the media's right to inform -i '"and. educate its readerslviewers about issues of public interest.

3. To institute annual awards ofjournalistic excellence for print, broadcast and web.

4. To publish a magazine, newspaper, website, or produce documentaries if so felt necessary to nurture and propagate freedom of speech.

Madhu 6 %y-$tMan ' Kumar Mittad - \

Vineet Narai

'4 Amitabh Thakur 37 5. To institute fellowships for journalists to work on projects of importance.

6. To publish books on public interest issues, poverty alleviation, developmental projects, the. rule of law, human rights, environmental protection, et cetera +'. .a, 7. To orgaoise seminars, debates and idea exchanges in order to keep India's journalists and"pop1e abreast with new ideas, views, and trends. . . . . 8. To set up facilities for freelance journalists for them to be able to do their work in a qualitative manner and to deal with professional hindrances.

9. To set up an institute for journalistic training to nurture India's best and brightest.

10. To set up chapters of the foundation in different state capitals of the country.

11. To set up a fund to help and protect journalists.

12. To ensure a healthy balance in the media .between commercial considerations and journalistic values and to enhance the credibility of the media as a watchdog body and , a civil society institution. L- 13. To piomote journalist exchange programmes with different countries specially neighboring countries to foster a better understanding of each other.

14. To get a team of fill-time professionals to run the foundation.

15. To raise resources in a manner that does not compromise the independence of the foundation.

16. To take up media issues without being drawn into inter and intra organizational disputes and make the hrtherance of the above mentioned issues the main focus of the journalists who join the foundation.

17. To foster diversity and equality in the profession and to equip under-privileged journalists with better skills.

an$ Kumar Mitta W& Vivian Fernande Vineet ~arain6

A Gupta

Sanjay Pugalia

Page 2 of 19 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55

AUTHORISATION LETTER

8 JULY 2021

I, Samrat Choudhury, President of the Foundation for Media Professionals (estd: 2008) hereby authorise Raksha Kumar, residing at A-1301, Vasundhara Society, 6, Shastri Nagar, 1, Mitha Nagar, Goregaon West, Mumbai, Maharashtra 400104to sign on behalf of all the members of the Foundation for Media Professionals in the Impleadment Application in WP No. 106 of 2021_Kishorechandra Wangkhemcha & Anr vs. Union of India and all future matters related to the application.

Sincerely,

Samrat Choudhury> President

Foundation for Media Professionals 56

BEHIND BARS

Arrest and Detention of Journalists in India 2010-20

Journalist Siddique Kappan (in cap) brought to court in Mathura, Uttar Pradesh (Picture courtesy: PTI).

An analysis of a decade of summons, detentions, arrests, interrogations and show-case notices against journalists

By Geeta Seshu

Free Speech Collective 57 2 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20]

Introduction

The year 2020 has been a bad one for journalists in India. The Covid-19 pandemic has caused illness and death, and the lockdown resulted in salary cuts and loss of livelihood due to mass retrenchments effected by media houses. The killing and attacks on journalists have continued unabated. While self-censorship within the media remained an open secret, the government sought to increase regulation of the media, with media policies, funding and administrative mechanisms for online media.

A sharp rise in criminal cases lodged against journalists in India for their work, with a majority of cases in BJP-ruled states, has contributed to the deterioration in the climate for free speech in India. In the last decade, 154 journalists in India were arrested, detained, interrogated or served show cause notices for their professional work and a little over 40 per cent of these instances were in 2020. Nine foreign journalists faced deportation, arrest, interrogations or were denied entry into India.

Apart from cases under various sections of the Indian Penal Code (IPC), ‘terror’ related charges and sedition have also been increasingly applied against journalists. Three journalists are in custody under various sections of the Unlawful Activities (Prevention) Act, 1967 (UAPA), one of them being convicted with life imprisonment. In 2020, given the lockdown due to the pandemic, sections of the Disaster Management Act and Epidemic Diseases Act, along with prohibitory orders under Sec 144 of the Criminal Procedure Code (CrPC) have also been increasingly applied against journalists.

Along with the already prevailing impunity for crimes against journalists, these instances clamp down on the flow of information and have a chilling effect on the freedom of the media in India.

Politicians and corporate houses have filed criminal defamation cases seeking damages in crores and SLAPP suits while there are gags on media coverage of sensitive cases. The number of criminal defamation cases filed against media persons and its chilling effects due to the harassment of prolonged court proceedings would require another study altogether.

But there is a worrying increase in using contempt charges to curb freedom of expression. The Supreme Court of India initiated contempt proceedings against comedian Kunal Kamra and ‘Sanitary Panels’ comic strip creator Rachita Taneja. Content on the online platforms is taken down, often at the behest of government or the police.

India’s ranking has been slipping steadily in various national and international indices on safety of journalists, freedom of expression and human rights. Studies have shown that India’s rate of conviction on deaths of journalists -- over 30 since 2010 -- is pathetic, with just three convictions. Physical attacks on journalists have increased, with at least 198 serious attacks between 2014-19, including 36 in 2019 alone.

2 58 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 3

In 2020, three journalists were killed due to their professional work. On June 24, journalist Shubham Mani Tripathi was shot by unidentified persons in Unnao, Uttar Pradesh, in retaliation for his reports on sand mining in the area; on November 8, journalist Isravel Moses of Thamizhan TV was hacked to death by alleged drug dealers; on November 27, Rashtriya Swaroop journalist Rakesh Singh ‘Nirbhik’, died when his house was set on fire in Balrampur, Uttar Pradesh.

In other instances, there is no clarity as yet about whether the deaths were related to their work. Police investigations are still inconclusive over the death of Parag Bhuyan, journalists of Pratidin Time, an Assamese television channel in a ‘hit-n-run’, on November 13 at Kakopathar,Assam.

Attacks on journalists, including the horrific hounding and assault on Caravan journalists Shahid Tantray, Prabhjit Singh and a woman journalist in the national capital in Delhi on Aug 11, continue unabated. In this instance, despite lodging official complaints, police failed to register an FIR. Other cases, shrouded in impunity, are poorly investigated. The nexus between law-enforcing agencies, the local administration and local business and political interests have ensured that justice remains elusive.

At the beginning of the year, India’s Union Minister for Information and Broadcasting Minister Prakash Jawadekar debunked ratings by international organisations and announced the setting up of a review by senior Indian journalists. Ironically, the current NDA government has been unabashed in its selective engagement with news media that are seen as pliant. It has disregarded critical media and its media policy is designed to exclude news media perceived as ‘anti- national’ from the award of official government advertising.

The hostile and dismissive attitude of the government towards independent media reportage and the criminalizing of journalists for their reports were nowhere more marked than in the first few months of the lockdown announced by the Union government in March 2020. An advisory was issued by the Union Ministry of Electronics and Information Technology (MeiTY) on March 20, 2020, to all social media platforms to ‘inform users not to host, display, upload, modify, publish, transmit, update or share any information that may affect public order and unlawful in any way.’ A meeting between Prime Minister Narendra Modi and select media owners to ensure positive articles about the pandemic followed this on March 24.

Taking their cue, different State governments issued notifications regulating the media. The Supreme Court, in a petition on the plight of migrant labour after the announcement of a countrywide lockdown with barely four hours notice, accepted a status report of the Union Government that said the ‘exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media’.

Given these pronouncements, the punitive attitude of the state towards journalists has percolated to law-enforcing agencies and all levels of the administration. Instead of a climate allowing the media to hold the agencies accountable, journalists end up being criminalized and put in the dock.

3 59 4 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20]

Free Speech Under Attack

There have been other attacks on freedom of expression in India, affecting all citizens, political and social activists, artists, filmmakers, writers, theatre performers, stand-up comics, cartoonists and users of social media networking platforms.

India ranks as the country with the highest number of Internet shutdowns, with at least 64 shutdowns tracked by Software Freedom Law Centre (SFLC.in) in 2020 alone. In August 2019, on the eve of the abrogation of Art 370 in Kashmir, the Internet was shut down across the state, with access selectively restored as the state was downgraded into a Union Territory. Till date, despite multiple petitions in the Supreme Court including pleas by doctors seeking information on tackling the Covid-19 pandemic, full 4G Internet is not allowed in Kashmir.

The end of the decade has also marked the rise of a highly polarized and partisan media. Blatantly fuelling false and inciting news coverage, this -- mainly broadcast -- media indulged in propaganda, demonization of Muslims and peddled false information. As The Hoot annual free speech report for 2014 said, the year saw the sharpest rise in hate speech instances from two in 2012 and ten in 2013 to 22 instances, peaking in the run-up to what was billed as the most divisive general election in India’s history. Hate propaganda by established media has only increased. A report by the Campaign Against Hate pointed out that the ‘demonization of Muslims in the case of the Tablighi Jamaat cluster was in continuation with media’s characterisation of the anti-CAA protestors as anti- nationals. In both cases, the message from sections of the media was that these individuals and communities were not entitled to full constitutional rights.

It is in this context that Free Speech Collective undertook this analysis of a decade of cases lodged against journalists or other forms of harassment and intimidation through interrogations and show-cause notices.

4 60 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 5

I

STORY-TELLERS BEHIND BARS

A sharp rise in criminal cases lodged against journalists in India for their work, with a majority of cases in BJP-ruled states, has contributed to the deterioration in the climate for free speech in India. Along with the already prevailing impunity for crimes against journalists, these instances clamp down on the flow of information and have a chilling effect on the freedom of the media in India.

In the last decade, 154 journalists in India were arrested, detained, interrogated or served show cause notices for their professional work. Sixty-seven of these were recorded in 2020 alone. Between 2010-20, nine foreign journalists faced deportation, interrogation or were denied entry into India.

A majority of the Indian journalists worked for non-English print publications and television channels, were freelancers or published on various online social media platforms.

Seventy-three of the 154 cases documented in this study have been reported from BJP-ruled states. Another 30 cases were reported from states ruled by BJP and its National Democratic Alliance (NDA). Of the cases in BJP-ruled states, Uttar Pradesh led the pack with 29 cases. Other instances are from states under President’s Rule or Governor’s rule, directly under the control of the Union government.

For the first four years of the decade under this study, the Congress-I led United Progressive Alliance (UPA) was in power at the Centre while the BJP-led National Democratic Alliance (NDA) has been in power since May 2014. There were 19 cases under the UPA watch, i.e. between 2010-May 2014. From 2017, the number of cases against journalists has been in double figures.

Journalists have been arrested and face court cases on ‘terror’ and ‘conspiracy’ charges under sections in the Unlawful Activities (Prevention) Act, 1967 (UAPA), Official Secrets Act (OSA), sedition, spreading communal disharmony, trespass, cheating, criminal conspiracy in the Indian Penal Code (IPC), 1860, obscenity under the Information Technology Act, 2000, the Disaster Management Act, 2005, the Epidemic Diseases Act, 1897 and prohibitory orders under Sec 144 of the Criminal Procedure Code, 1973.

Two journalists –Aasif Sultan of the Kashmir Narrator and Siddique Kappan of Azhimukham - are still in custody on charges under the UAPA while a third, Prashant Rahi, has been convicted and sentenced to life imprisonment. On June 25, 2019, Ghulam Jeelani Qadri, journalist and publisher of the Urdu-language newspaper Daily Afaaq from Srinagar, Jammu and Kashmir, was arrested on charges under the now lapsed Terrorist and Disruptive Activities (Prevention) Act, 1985!

Over the ten-year period, 56 journalists were arrested and spent varying amounts of time behind bars before being released on bail. This year, journalist Prashant Kanojia spent 80 days in jail for merely posting a tweet, securing bail only after 61

5 61 6 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20]

days. At least 13 journalists obtained anticipatory bail while an equal number were detained. At least 45 others have had FIRs lodged against them.

Over the decade, journalists and the stories that evoked such drastic response included:

§ the editors of ‘Dastak’ magazine Seema Azad and Vishwa Vijay (arrested and awarded life imprisonment on charges of sedition and criminal conspiracy under the UAPA for writing about the opposition to the Mayawati government’s forcible land acquisition for the Ganga Expressway project; § journalist K K Shahina charged under the UAPA for an article on the police investigation against Abdul Nasar Madani; § Quint journalist Poonam Agarwal charged under the Official Secrets Act for a sting report on the sahayak system and abetment to suicide, following the death of Roy Mathew, one of the sahayaks interviewed; § Deccan Herald journalist, Muthi-ur-Rehman Siddiqui arrested on charges of being the mastermind in an alleged Lashkar-e-Toiba plot to kill other journalists for their ‘right-wing leanings’; § television journalist Jaikhlong Brahma, arrested on charges of “providing information to extremists; § freelance journalist, Neha Dixit who wrote an exposé on trafficking of young girls titled Operation #BabyLift; § journalists Kamal Shukla and Prabhat Singh faced multiple cases, including sedition charges against Shukla; § journalists Abhilash Padacherry, Ananthu Rajagopal, arrested on charges of obstructing public officials when they went to cover the Vadayampadi ‘caste wall’ in Kerala; § journalist Auqib Javeed questioned in the case of Asiya Andrabi, chief of Kashmiri women’s separatist groups Dukhtaran-e-Millat (DeM) who was arrested by the NIA under charges of sedition and UAPA; § journalists Masrat Zahra and Gowhar Geelani booked by the Cyber police, Srinagar, for allegedly ‘indulging in unlawful activities’ through his posts and writings on social media; § journalist Ashwani Saini who had five FIRs lodged against him for his video report on the failure of the administration during the lockdown and other pandemic-related stories

(Note: Please scroll down for the complete list)

Foreign journalists have found the going tough, denied visas and restricted from travelling to ‘conflict’ areas. In 2011, noted radio broadcaster David Barsamian was deported from Delhi airport. In 2017, ABC Four Corners, an Australian news team led by Stephen Long, was forced to leave Gujarat while reporting on the Adani Group’s Mundra port. In December 2017, Paul Comiti, a French freelance journalist, was arrested for filming a documentary without permission and violating visa regulations, Jammu and Kashmir police said. Other cases in 2018 were of Alban Alvarez, correspondent for French news channel FRANCE24 in India, and Derek Mac

6 62 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 7

Donald, a British national; Arthur Roland Rene and Jules Damien, Mark Scialla while Cathal McNaughton, chief photographer at the Reuters news agency’s Delhi office was denied entry.

Cases against Republic television channel owner Arnab Goswami and Zee News television channel editor Sudhir Chaudhary related to their allegedly inflammatory news coverage. Goswami was arrested on an abetment to suicide charge relating to his media business and released on bail, following a Supreme Court order. The case provided stark evidence of preferential treatment regarding the grant of bail accorded to mediapersons perceived to be close to the ruling political party, in stark contrast to the harassment and prolonged incarceration of journalists who are seen as critical voices against the ruling establishment.

Apart from the arrests, a number of journalists were summoned for interrogation or served with show cause notices, often a precursor to punitive action by the administration. For journalists reporting from conflict areas like Jammu and Kashmir, constant surveillance and summons from the police or administration over news reports is routine, with the unspoken threat of a case being filed if journalists continue to challenge the invisible boundaries drawn for them.

Only 14 journalists managed to fight court cases and secure their acquittals or had their cases quashed or disposed of. Their legal battles, long and often lonely and with scant support, came with a price. They have lost jobs and faced intense trauma and isolation, run up huge debts, caught up in a quagmire of weekly attendance in police stations and successive court dates till cases are ultimately resolved.

In the wake of massive economic upheaval, the collapse of public health systems, the rise in unemployment, privatization of public resources and policies that result in displacement and adversely impact the environment, the penalizing of journalists seeking to hold governments accountable, along with the killing and attacks on journalists, will have a deleterious effect on media freedom in India. It is vital to protect the freedom to access and disseminate information, shape public opinion and challenge dominant narratives.

7 63 8 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20]

II

CASES AGAINST JOURNALISTS

The number of cases lodged against journalists has been in double figures from 2017 onwards.

YEAR* No. Of Instances

2010 10

2011 03

2012 05

2013 01

2014 01

2015 07

2016 06

2017 16

2018 25

2019 13

2020 67

Total 154

Table 1: No. of Cases lodged against journalists in India

State-wise list of cases

8 64 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 9

STATE (or YEAR TOTAL UT) Uttar Pradesh 2020 (15), 2019 (10), 2017 (2), 2010 (2) 29 Chhattisgarh 2020 (2), 2018 (4), 2016 (3), 2015 (2), 17 2013 (1) 2012 (1), 2011 (1), 2010 (3)

Jammu & 2020 (9), 2019 (2), 2018 (2), 2017 (3) 16

Kashmir

Tamil Nadu 2020 (4), 2018 (6), 2017 (4), 2015 (1) 15

Delhi* 2020 (5), 2018 (1), 2017 (1), 2015 (1), 10 2012 (1), 2011 (1) Maharashtra 2020 (3), 2018 (2), 2017 (3), 2015 (1), 10 2011 (1) Gujarat** 2020 (6), 2017 (1) 7 Assam 2020 (1), 2018 (2), 2016 (3), 2014 (1) 7 Karnataka** 2020 (1), 2012 (3), 2010 (2) 6 Himachal 2020 (5) 5 Pradesh* Kerala 2020 (1), 2018 (4) 5 Manipur 2020 (1), 2018 (2), 2010 (2) 5 Telangana 2020 (3), 2017 (1) 4 West Bengal 2020 (4) 4 Bihar 2020 (2) 2 Jharkhand 2020 (1), 2010 (1) 2

Madhya 2020 (2) 2 Pradesh Punjab 2020 (1), 2015 (1) 2

Andaman and 2020 (1) 1

Nicobar

Islands

Andhra 2017 (1) 1 Pradesh Goa 2018 (1) 1 Haryana 2015 (1), 2019 (1) 2 Meghalaya 2020 (1) 1 Odisha 2018 (1) 1 Sikkim 2020 (1) 1

TOTAL 156*

Table 2: States wise list of cases against journalists 2010-20

**Two FIRS were registered in Karnataka and Gujarat. They have been counted here as 2 cases, 1 in each state

*Two FIRS were registered in Delhi and Himachal Pradesh. They have been counted here as 2 cases, 1 in each state.

9 65 1 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 0 Cases and the ruling state governments

President’s Rule 12 Governor’s Rule 02 Lt Governor’s Rule 01 AAP 08 AIADMK 13 BJP 73 BSP 02 BJP-SS 06 BJD 01 INC 09 JD (U) 02 JMM 01 LDF 05 NPP 01 PDP (+BJP) 03 SP 01 SAD (+BJP) 01 SKM 01 SS-INC-NCP 03 TDP 01 TMC 04 TRS 04

10 66 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 1 1

III

A brief summary of cases (2010-20)

Note: This list includes cases lodged, journalists arrested, detained or summoned for interrogation, and sent notices for reports. This information is collated from various sources and every attempt has been made to verify the information and update the case status, despite the absence of official data. If you have additional information or any additions or omissions, please write in to [email protected].

2010

1. On January 5, journalists Priyanka Borpujari and Satyen Bordoloi and filmmaker Nishtha Jain, all from Mumbai, were detained by police in Dantewada, Chhattisgarh, when they had visited the state to cover a jan sunwai (public hearing) organized by civil society activists. They were surrounded by 25 armed police and SPOs and prevented from leaving, placing them under virtual house arrest. They were assaulted and their cameras were taken away. After public pressure, the local administration was forced to let them go. 2. On February 3, the Uttar Pradesh special task force arrested Seema Azad and Vishwa Vijay, the editors of ‘Dastak’ magazine, on charges of sedition and criminal conspiracy under various sections of the Unlawful Activities Prevention Act (UAPA). Azad was the organising secretary of the UP unit of the human rights group, People’s Union for Civil Liberties (PUCL). The duo was writing about the opposition to the Mayawati government’s forcible land acquisition for the Ganga Expressway project but police alleged they were suspected Maoists. On June 8, 2012, they were sentenced to life imprisonment by a lower court in Allahabad. They managed to secure bail on an order from the Allahabad High Court in August 6, 2012. 3. On March 20, Jiribam based media persons Moirangthem Romeo and Atom Lukhoi, were arrested by Imphal East commandos on the occasion of the maiden visit of Governor Gurbachan Jagat to the sub-division headquarters. Romeo is Jiribam correspondent of ISTV and DDK Imphal and vice-president of All Jiribam Working Journalists' Union (AJWJU). Atom Lukhoi (28) is the Jiribam correspondent of Poknapham daily and Acting Editor of the Eastern Post, a Manipuri weekly published at Jiribam and general secretary of the AJWJU. No reasons were given for the arrests. 4. On May 4, Karnataka police threatened to use the Unlawful Activities (Prevention) Act against Rahul Belagali, a reporter of the Prajavani newspaper and demanded information on a Maoist he interviewed. The Shimoga police had demanded information on the Naxalite leader who the reporter had interviewed for an article on Naxalism which appeared in his publication. When the reporter refused to comply, the police also sent a notice to his associate editor, Padmaraj Dandevali, threatening to use the same Act against him.

11 67 1 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 2 5. On Sept 3, Central security forces detained G Vishnu, a journalist with Tehelka magazine, near Jamshedpur. He was detained despite having informed the officials of UCIL (Uranium Corporation of India Ltd) beforehand about his visit for a story that was part of the magazine’s Nuclear Cloud & N- Bill series. Vishnu was walking from one village to another, which have open- cast mines with no clear demarcations, when he was detained for trespassing and indulging in illegal activities. Later, Surendranagar Police Station Jamshedpur formally charged the journalist and two other locals under 19(b) of the Atomic Energy Act, and sections 188 and 163 of the IPC. They were granted bail and allowed to leave but their cameras, tapes and mobile phones were seized. 6. On Dec 1, Karnataka police charged journalist Shahina K K under sections 506 and 149 of the Indian Penal Code (IPC) on charges of criminal intimidation of witnesses in connection with sources she interviewed in Kodagu district for an article entitled ‘Why is this man still in prison?’, published in Tehelka Magazine on December 4, 2010, on the incarceration of Abdul Nasar Madani, Chairman of People’s Democratic Party (PDP), Kerala. Police added a third charge under the Unlawful Activities Prevention Act (UAPA). The Karnataka High Court granted her provisional immunity from arrest only in July 2011. The case is still on.

2011

1. On May 17, almost a year after his story was published, Tarakant Dwivedi, a reporter with Mid Day, was arrested by Railway Police in Mumbai on grounds of trespassing (u/s Section 447 of the Indian Penal Code, 1860) into the Railway Protection Force (RPF) armoury at the Chhatrapati Shivaji terminus armoury and later on a charge of spying under the Official Secrets Act, 1923 (OSA). Dwivedi, alias Akela, was working for the Mumbai Mirror when he filed a story on June 28, 2010 about the poor state of the armoury. His report said that automatic weapons purchased following the outrage over outdated arms used by the RPF to repulse the terrorist attack on 26/11 were being stored in a room with a leaky roof. Pictures by Raju Shinde showed rifles being soaked in rainwater. Two days later, the Railway Court remanded him to three days police custody. In February 2013, a division bench of the Bombay High Court comprising Justices Abhay S Oka and A P Bhangale disposed of Akela’s petition to have the case quashed, after an assurance from the state government that it would file a closure report. 2. On September 10, Chhattisgarh police arrested Lingaram Kodopi, in September 2011 and charged him with sedition, waging war against the state, and criminal conspiracy under the Indian penal code, and for anti-state activities under the Unlawful Activities (Prevention) Act and the Chhattisgarh Public Security Act. Kodopi, a freelance journalist, was accused of masterminding an attack against a local politician in 2010 and facilitating a money exchange between Maoists and a representative of a steel company wanting to operate in a Maoist insurgent-controlled area. Kodopi said that the arrests were in retaliation to his detailed video documentation of police atrocities and destruction of houses in Dantewada district during an anti- Maoist police operation in three villages in April.

12 68 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 1 3

Foreign Journalists

1. On Sept 23, noted US broadcaster and Director of the Alternative Radio, David Barsamian, was deported from Delhi's international airport on by the immigration authorities, who told him that he was “banned'' from entering the country but refused to divulge the reasons. Barsamian had been a frequent visitor to India since the 1970s and has written extensively about various facets of India and its people. It is reported that he had violated his visa norms during a visit in 2009-10 by indulging in professional work while holding a tourist visa. Thereafter, he was put on a watch list by the immigration authorities in order to prevent his entry on his next visit. Barsamian said that he received no official explanation.

2012

1. On June 14, Chhattisgarh Police arrested journalist Sheikh Anwar for allegedly procuring weapons and ammunition for Maoists in Chhattisgarh. Anwar was arrested along with an alleged Maoist, Hridesh Kumar Dawood. Two days prior to his arrest, his wife, Anjali Chouhan, was arrested with another alleged Maoist, Abdul Mujeeb. Police said Anwar worked as a journalist in the Naxal region of Kota, and he along with another individual from Andhra Pradesh had "procured the rounds" from police and paramilitary forces in order to supply them to the Maoists. They were charged under sections of the Chhattisgarh Special Public Security Act, Unlawful Activities (Prevention) Act, Arms Act and the Indian Penal Code (IPC).

On March 22, 2017, all four were released after additional sessions judge Atul Kumar Shrivastava did not find any concrete evidence to support the charges against them. All four were arrested in Raipur but the police reportedly showed their arrests from different places.

2. On August 29, Bengaluru police arrested Deccan Herald journalist, Muthi- ur-Rehman Siddiqui and charged him with being the mastermind in an alleged Lashkar-e-Toiba plot to kill editor Vishweshwar Bhat, columnist Pratap Simha and publisher Vijay Sankeshwar for their ‘right-wing leanings’. The former two were earlier with Vijaya Karnataka newspaper and joined Rajeev Chandrasekhar‘s Kannada Prabha.

On February 23, 2013, a special court trying the case ordered Siddiqui’s release after the national investigation agency (NIA), which investigated the case, didn’t name him in its chargesheet on February 20.

3. On Mar 6, the special cell of the Delhi police arrested freelance journalist Syed Mohammed Ahmed Kazmi for his alleged role in the attack on an Israeli Embassy vehicle on February 13. The special cell picked up Kazmi after the probe indicated that he had been in touch with a suspect who is believed to

13 69 1 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 4 have stuck the bomb on Israeli diplomat Tal Yehoshua Koren's car. Kazmi was released on bail after eight months.

4. On November 7, Naveen Soorinje, a Mangalore-based television journalist, and cameraperson Sharan were arrested for exposing an attack by an extremist cultural outfit called the Hindu Jagarana Vedike on July 20 on a group of boys and girls who were celebrating a birthday party at Morning Mist home-stay in Mangalore. Soorinje was charged with multiple sections of Indian Penal Code (IPC) including criminal conspiracy, using criminal force on a woman with the intention of outraging her modesty as well as sections of Indecent Representation of Women (Prohibition) Act. The Bangalore High Court denied his application for bail. He was finally released on bail on March 23, 2013 and all charges were dropped on Jan 4, 2018

2013

1. On September 1, Prashant Rahi, a freelance journalist from Uttarakhand was picked up from Raipur and then on the 2nd of September, on suspicion of having links with the banned Maoist organization. He was charged with several sections of UAPA and sedition under the IPC in the same case. Rahi, who was a journalist for the Statesman, became a freelance writer in 2000- 2001. In March 2017, he was awarded life imprisonment, along with four others under section 120B (criminal conspiracy) IPC and also five sections of the Unlawful Activities Prevention Act (UAPA) - 13 (unlawful activity), 18 (conspiracy), 20 (punishment for being member of terrorist gang or organisation), 38 - membership of a terrorist organisation and 39 - support to terrorist organisation.

2014

1. On Sept 4, Assam Police arrested television journalist Jaikhlong Brahma, who works for a Guwahati-based private news channel News Live, in Kokrajhar town on Tuesday night on charges of “providing information to the extremists about the movement of security forces in advance and instigating the cadres of the National Democratic Front of Boroland (Songbijit) to indulge in violent activities such as killing of innocent persons, sources or informers. According to the Journalists Union of Assam (JUA), Brahma was actually arrested because of an interview he had done with a prominent figure within the National Democratic Front of Boroland (NDFB).

2015

1. On January 29, Shirin Dalvi, editor of Urdu newspaper ‘Avadhnama’, was arrested under section 295A of the Indian Penal Code (deliberate acts intending to outrage religious feelings) for reprinting the Charlie Hebdo ‘anti- Islam’ cartoon on the front page of the paper’s January 17 issue. Despite her apology, she faced threats, forcing her to go into hiding. In April 2019, the Bombay High Court disposed off her case after the Maharashtra police filed a ‘C’ summary report (where police investigation reveals that the case is

14 70 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 1 5 neither true nor false and that the criminal case was filed either because of a mistake of facts or the offence was civil in nature). 2. On Feb 20, Delhi Police arrested journalist Santanu Saikia in connection with a probe into the alleged leak of petroleum ministry documents to corporates. Saikia worked in publications such as The Economic Times, Indian Express, Financial Express and Business India. He runs three portals related to the energy sector – www.indianpetro.com www.energylineindia.com and www.indianfertilizer.com. Saikia was arrested along with six others - Shailesh Saxena of Reliance Industries Ltd, Vinay Kumar of Essar, Rishi Anand of Reliance ADAG, Cairns India's K K Nayak, Virender and Subhash Chandra of Jubilant Energy. The six are among the 16 who have been accused of being involved in leaking confidential documents from the Petroleum Ministry and supplying them to firms and arrested in February. Of the 16 who had been arrested in the case, the police had filed charges against the 13 in April. The suspects had been charged with offences punishable under sections 457 (trespass), 380 (theft), 420 (cheating), 468 (forgery for the purpose of cheating), 471 (using as genuine forged documents), 120-B (criminal conspiracy) and 34 (common intention) of the Indian Penal Code. However, provisions of the stringent Official Secrets Act (OSA) have yet to be invoked against them. In 1999, the CBI filed a case against Mr. Saikia under the Official Secrets Act for publishing a secret Cabinet note on disinvestment. The case went on for 10 years before he was acquitted in 2009 after a trial court in Delhi ruled in his favour. The court ruled that the publication of a document merely labelled “secret” should not render the journalist liable for prosecution under the Act. The court said the publication of a disinvestment document was unlikely to affect the sovereignty and integrity of India or jeopardise friendly relations with foreign states. Saikia was released on bail in May, after spending more than 80 days in prison.

3. On July 16, Somaru Nag stringer for Patrika was arrested and charged under the Arms Act and sections of the law dealing with arson, banditry and criminal conspiracy. He was charged with keeping a look out on the movements of the police, while a group burnt a crusher plant employed in road construction in Chote Kadma, Bastar district, on June 26. He was acquitted in July 2016, after Additional District Judge Niranjan Lal Chouhan quashed all charges against him, citing lack of evidence. 4. On September 29, Santosh Yadav, stringer for Dainik Navbharat, Patrika, and Dainik Chhattisgarh was arrested and charged under sections of the Indian Penal Code, the Arms Act, the Unlawful Activities Prevention Act and the The Chhattisgarh Special Public Security (CSPS) Act, 2005. Yadav's name was added to a case where 18 villagers were arrested and charged with an encounter, which took place on August during a road-opening operation by the security forces in which a Special Police Officer was killed. He was granted bail only in February 2017 and acquitted in January 2020.The police officer who had lodged the complaint against him failed to identify him in an identification parade. All the other seventeen accused with him were also acquitted. 5. On Sept 3, 2015, a visual editor of Jaya TV, Shakthivel, was arrested on charges of leaking a video showing TN Chief Minister Jayalalithaa meeting

15 71 1 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 6 long-time confidante and adviser Cho Ramaswamy at a hospital in Chennai where he was admitted. The footage was allegedly leaked from Jaya TV. The cyber-crime wing of the crime branch registered a case under the IT act against the visual editor. 6. On Feb 26, journalist Surinder Singh Pachisa was arrested for covering a hunger strike by Bapu Surat Singh for the release of Sikh political prisoners. On Oct 21, Singh, who wrote extensively on Sikh politics, was arrested in a 27-year-old case on charges under the Terrorist and Disruptive Activities Act, though the act lapsed in 1995. The case dated back to June 1988 when Surinder Singh was affiliated with the Sikh Student Federation was presented in the court of Additional Sessions Judge Rakesh Kumar. Singh was acquitted on Sept 7, 2016.

2016

1. Journalists Kamal Shukla and Prabhat Singh were charged with defamation, insult to provoke breach of peace, public mischief and disturbing religious enmity. On March 22, Singh was arrested on charges under section 67 (publishing or transmitting obscene material in electronic form) and 67(A) of the IT Act as well as section 292 (publication of obscene or scurrilous matter) of the Indian Penal Code. An FIR was registered on March 5 based on a complaint by Santosh Tiwari, who accused Prabhat Singh of using obscene language with reference to senior police officers in Bastar on a WhatsApp group called ‘Bastar News.’ 2. On March 27, journalist Deepak Jaiswal was held on a complaint lodged by the Principal of a government high school, Ranjeet Tikam. Police alleged that Jaiswal and Singh had tried to extort money from the school principal. The journalists said they had gone to report on examination malpractices in the school. 3. In August 2016, a criminal complaint for inciting hate against different ethnic groups was lodged against independent Indian journalist, Neha Dixit, as well as Indranil Roy and Krishna Prasad, the publisher and editor of Outlook magazine for the journalistic exposé on trafficking of tribal girls from Assam by the Sangh Parivar. The story, titled Operation #BabyLift, was published in Outlook magazine on July 29, 2016. The complainants were an assistant solicitor general of the government of India at the Gauhati High Court, and a spokesman for the BJP.

2017 1. In January, Frontline magazine correspondent Kunal Shankar was held for trespassing into the University of Hyderabad and violating the High Court order (barring outsider entry) on the first death anniversary of Rohith Vemula. He was questioned and subsequently released. 2. In January, a local journalist (name not disclosed) in Mathura, Uttar Pradesh was interrogated for posting an ‘objectionable video’ on the social media group of the district PRO cell in Mathura. He was released after interrogation. 3. On March 28, Poonam Agrawal, journalist for English news website The Quint, was charged under the Official Secrets Act, a 1923 anti-espionage law, by police in Nashik and for criminal defamation and abetment of a suicide

16 72 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 1 7 under the Indian Penal Code. She had done a sting report on the infamous ‘sahayak’ system whereby senior army officers use the services of subordinate soldiers for personal work. She was accused of entering a restricted area of an army cantonment without the permission of authorities and filmed the premises besides interviewing some jawans. One of the soldiers she taped, Roy Matthews, was found dead on March 2, in what police have determined was a suicide. In April 2019, the Bombay High Court quashed the two cases against her. 4. In March 2017, magazine journalist N.Nagarjuna Reddy had a police case filed against him by a former TDP councilor at the Chirala Police Station in March. He was remanded in judicial custody till April 7 and sent to a sub--jail. 5. In August, the Chief of the Central Board of Film Certification (CBFC) Pahlaj Nihalani filed a police complaint against Himanshi Chaudhary, a reporter with the TV channel Mirror Now, alleging harassment, intimidation and breach of privacy. 6. In October, former BBC journalist Vinod Verma was arrested from his residence in Indirapuram, Uttar Pradesh in October and initially denied bail on November 6. Bail was finally granted in December. 7. In September, Kamran Yousuf, a stringer and photojournalist, was picked up by the National Investigation Agency (NIA) for stone pelting. On January 18, 2018, the National Investigation Agency brought charges of sedition against him. 8. On September 27, Tamil Nadu police filed an FIR against three journalists, Nagarajan and Raja Krishna, who work for Puthiya Thalaimurai and Antony Jagan, who works for Dinakaran. for reporting a ‘mysterious explosion’ in the ISRO campus in Tirunelveli. A number of television channels aired clips that showed visuals of smoke rising from the location of the ISRO campus, which police later said emanated from the dust caused by a piece of limestone rock that had slipped from Kurava Malai, a hillock about 15km from the ISRO unit. 9. On November 5, G Balakrishnan (Bala), an independent editorial cartoonist based in Tirunelveli district, was arrested by the Crime Branch wing of Tamil Nadu police for a cartoon he posted on social media criticising the district administration and Chief Minister Edappadi K. Palaniswami. He was accused of “obscene representation” and defamation and was booked under Sections 67 of Information Technology Act and 501 of the Indian Penal Code. He was released on bail a day later. 10. On Dec 26, Mumbai Police detained Mumbai-based independent journalist Priyanka Borpujari while she was at a slum demolition site covering police action against protestors including women and children. Not only was she taken away without any grounds for action against her, her equipment and phone was confiscated as well. Police alleged that she was instigating the protestors and slapped charges under sec 353 of the Indian Penal Code against her. Borpujari secured anticipatory bail on Jan 30, 2019.

17 73 1 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 8

Journalists detained and questioned:

1. Kshitij Kumar, a 23-year-old sub-editor with The Quint was picked up from Kathputli Colony in October while covering a Delhi Development Authority demolition drive. He was detained for over six hours and then released. 2. Fahad Shah, journalist, was picked up by the Jammu and Kashmir police in June purportedly to verify certain things regarding his last visit to Pakistan. He was released after eight hours of questioning.

Foreign journalists:

1. In October, ABC Four Corners, an Australian news team led by Stephen Long, was threatened by the Crime Branch of Gujarat Police while it was at Gujarat’s Mundra port to investigate the Adani group. It was forced to leave Gujarat and India. 2. In December, Paul Comiti, a French freelance journalist, was arrested for filming a documentary without permission and violating visa regulations, Jammu and Kashmir police said. He was released on bail the following day.

2018 1. On Jan 23, two journalists who had gone to cover the Vadayampadi ‘caste wall’ in Kerala found themselves behind bars. Abhilash Padacherry, Editor of Newsport.in, and Ananthu Rajagopal, an intern with Deccan Chronicle, were arrested for ‘obstructing the functioning of public officials and shouting slogans against the police and the State’. The police went on to brand them ‘Maoist supporters’. They were later freed. 2. On February 19, journalist, Harish Volvoikar, who runs a website GoaJunction.com, was detained for posting news in February that Chief Minister, Manohar Parrikar was undergoing treatment for a pancreatic ailment quoting a BJP leader Sunil Desai. Desai filed a case against the reporter for posting ‘false news in his WhatsApp post and misguiding the people’. The journalist was further barred from entering the Goa Assembly. Eight months later, in October, the government finally admitted to the ailment. Parrikar died of pancreatic cancer in 2019. 3. On May 8, Bharaulmukh Police registered a case against senior journalist Subir Bhaumik based on an FIR lodged by Piku Das, a resident of Santipur area. In his FIR, the complainant alleged that the senior journalist had written false and provocative reports vis-à-vis the NRC update process. Police sources said that the case was handed over to the crime branch. Bhaumik was recently in controversy for his reports on the NRC update which were subsequently rebutted by the State Coordinator Prateek Hajela. In a report that appeared in Al Jazeera on March 29, Hajela was quoted as saying “some 4.8 million people in Assam ‘have failed to provide appropriate legacy documents’ in advance of the preliminary list’s publication on Saturday – the second time such a list is being published, the first being at the beginning of

18 74 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 1 9 the year.” Hajela denied giving any such statement to Al Jazeera or Subir Bhaumik. 4. On June 21, in a bizarre incident, two reporters who went to cover ‘breaking news’ on the arrest of a prime suspect in a case of dacoity in Palghar, near Mumbai, were arrested as one of them began to film the accused being brought in. Hussain Khan, a stringer with Aaj Tak news channel was filming the suspect when police took objection and arrested him. His colleague and reporter for Hindustan Times, Ram Parmar, who went to the police station an hour later to follow up on the same story, raised objections at the arrest of his colleague for which he was arrested the next morning! Both were charged with assaulting a public servant and obstructing him from discharging his duty under section 353 of the IPC. The duo managed to secure bail on June 25. They were released a day later as the bail order could not be printed because of a power failure. The Press Council of India conducted an enquiry in their case, pulling up the Palghar police and termed their act as “definitely a case of violation of the freedom of the press”. 5. On April 28, Jarir Barbhuiya of Assam was arrested for reproducing a cartoon that featured the President of India, Chief Justice of India and the Prime Minister in the wake of the controversy surrounding the death of Justice Loya. 6. On May 5, Chhattisgarh journalist Kamal Shukla was slapped with a sedition case for liking a cartoon that featured the President of India, Chief Justice of India and the Prime Minister in the wake of the controversy surrounding the death of Justice Loya on Facebook. 7. On July 14-15, accredited journalist Auqib Javeed, working with Kashmir Observer was questioned to National Investigating Agency (NIA) headquarters in Delhi in the case of Asiya Andrabi, chief of Kashmiri women’s separatist groups Dukhtaran-e-Millat (DeM) arrested by NIA under charges of sedition and UAPA in August. “It appears you are acquainted with the circumstances of the case….” said the letter seeking the journalist’s presence before NIA. 8. On Aug 27-28, Aasif Sultan of the Kashmir Narrator was arrested under the UAPA on charges of providing support to militants. He is still in jail. 9. In August, Kishorchandra Wangkhem was arrested on charges of making inflammatory remarks on social media. He spent four days in prison for two posts in which he mocked the BJP as a 'Budhu Joker Party' (a party of fools). 10. On Oct 9, the Chennai city police arrested RR Gopal, editor of the Tamil bi- weekly Nakeeran, under Section 124-A of the IPC after a complaint from the Tamil Nadu governor’s office. He was taken to Chindathripet police station for questioning. Gopal was arrested for publishing a cover story that the magazine carried in its April issue and yet another article in September which had allegations linking the governor’s office to an investigation into the 'sex-for-marks' scam in Madurai Kamaraj University. The case pertains to an assistant professor, Nirmala Devi, who was arrested for allegedly luring students into sex work. 11. On Oct 20, three journalists, Kamal Shukla, Bhushan Choudhari and Siddharthya Roy, were detained for over eight hours in Narayanpur district of Chhattisgarh in an attempt to stop journalists from doing an in-depth study of the election preparations in restive Bastar. The superintendent of police

19 75 2 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 0 was unable to accept that journalists could reach interior villages without his knowledge and permission. 12. On October 23, defence analyst and columnist Abhijit Iyer-Mitra was arrested by Odisha police on charges of sedition for his tweets that ridiculed the Jagannath temple and Sun Temple. In September, he had visited the temples with former BJD MP Baijayant Jay Panda. He was released on December 7 after he tendered an apology and the Odisha government withdrew sanction for his prosecution and cases lodged against him. 13. On Nov 27, Imphal police arrested Kishorchandra Wangkhem under the draconian National Security Act. Police said he had posted four videos and comments on his Facebook page on 19 November, criticising the local government led by the Hindu nationalist Bharatiya Janata Party (BJP) - he described the Manipur chief minister as a "puppet" of Prime Minister Narendra Modi's federal government. 14. On Dec 2, Kanyakumari Police summoned two Tamil television reporters for an inquiry in connection with a trespassing case against two French journalists, who allegedly entered the restricted and high security zones of Indian Rare Earths Limited near Kanyakumari. The police have said that the two Indian journalists – D Ananthakumar and Sriram – assisted French journalists, who were reportedly on a tourist visa, to conduct interviews with fishermen in Kanyakumari and Nagercoil.

Foreign Journalists

1. On 15 February, police in Ernakulam, Kerala, picked up two foreign journalists – Alban Alvarez, a French national who works as a correspondent for the French news channel FRANCE24 in India, and Derek Mac Donald, a British national – on charges of trespass and filming without accreditation. They were booked on a complaint from the principal of the Government Law College, Ernakulam, where they were filming a rally organized by the students as part of the Valentine Day celebrations. The college authorities said they had been denied permission to film the event. 2. On Nov 29, Kanyakumari police filed an FIR against three persons, including two French journalists, Arthur Roland Rene and Jules Damien, and a priest of the Manakudy Parish, Father Hildas under IPC Sections 447 (punishment for criminal trespass), 14(A) (penalty for entry in restricted areas), 14(B) (penalty for using forged passport) and 14(C) (penalty for abetment) of the Foreigners Act 1946. They allegedly entered the restricted and high security zones of Indian Rare Earths Limited near Kanyakumari. 3. On December 28, Cathal McNaughton, chief photographer at the Reuters news agency’s Delhi office was sent back from the airport on his arrival from an overseas trip. The award-winning photojournalist had allegedly violated visa rules by visiting Jammu and Kashmir, restricted for foreign journalists. Journalists who want to travel to restricted areas (Arunachal Pradesh, parts of Himachal Pradesh, parts of Jammu and Kashmir, parts of Rajasthan, all of Sikkim and parts of Uttarakhand)

20 76 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 2 1 need to apply for a special permit issued by the Ministry of External Affairs (External Publicity Division). 4. In another incident on 30 December, police in Thoothukudi, Tamil Nadu, picked up freelance journalist Mark Scialla for interrogation where he had gone to do a story on the violence and protests against the Vedanta Sterlite factory. He was let off after a few hours.

2019

1. On June 8, Anuj Shukla, journalist, Nation Live News, was arrested by Uttar Pradesh police for sharing a video on Twitter which allegedly defamed the chief minister of Uttar Pradesh, Yogi Adityanath. The video contained claims made by a woman against the minister. Shukla was released on bail on July 21, 2019. 2. On June 8, Ishita Singh, Journalist, Nation Live News, was arrested by Uttar Pradesh police for sharing a video on Twitter which allegedly defamed the chief minister of Uttar Pradesh, Yogi Adityanath. The video contained claims made by a woman against the minister. Singh was released on bail on June 19, 2019. 3. On June 8, Prashant Kanojia was arrested by Uttar Pradesh police for sharing a video allegedly defaming the chief minister of Uttar Pradesh, Yogi Adityanath, on Twitter. Kanojia allegedly tweeted a video of a woman who claimed on camera that she sent a marriage proposal to Adityanath. He was released on bail on June 11, following a Supreme Court order. 4. On June 24, Ghulam Jeelani Qadri, editor of the Kashmiri newspaper Daily Afaq, was arrested for his alleged involvement in terrorist activities 27 years ago. In 1992, Qadri ran a news agency, JAK News, which had then allegedly published press releases and news issued by militant groups. Qadri was released on bail on June 25, 2019. 5. On July 25 Qazi Shibli, news editor of The Kashmiriyat newspaper, was arrested after tweeting an official order regarding the deployment of paramilitary troops across the Kashmir region that allegedly leaked crucial details about imminent troop movements in Jammu and Kashmir. He was charged under the Public Safety Act. Shibli was released on April 23, 2020. 6. On September 3, an FIR was lodged against journalist Pawan Jaiswal of Jansandesh Times on charges of cheating and criminal conspiracy after his video of students at a government school in eastern Uttar Pradesh's Mirzapur district eating rotis with salt as their mid-day meal under a flagship scheme of the central government. In its complaint, the Block Education Officer of the area has accused the journalist, Pawan Jaiswal, and Rajkumar Pal, a representative of the local village head, of conspiracy to defame the Uttar Pradesh government. The website of the Uttar Pradesh Mid Day Meal Authority claims that the menu for children at the state-run primary schools includes pulses, rice, rotis and vegetables, fruits and milk. On Dec 19, police gave a clean chit to Jaiswal stated no evidence was found against him. However, police did not give a similar clearance to Pal. 7. On Sept 8, Uttar Pradesh police booked five journalists in Bijnor for circulating allegedly fake news reports. In an FIR filed by the Bijnor police, Ashish Tomar and Shakil Ahmed, two journalists working with a local daily

21 77 2 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 2 and with an electronic news channel respectively have been named, along with three unidentified reporters. The FIR said that tried to vitiate social amity by circulating fake news about a Valmiki family from Titarwala Basi village under Mandwar police station putting ‘house on sale’ on their house after not being allowed to collect water from the village hand pump by an influential Dalit family from the same village. The police said the issue had been resolved by the police and the village ‘pradhan’ and alleged that it was one of the journalists who had put the ‘exodus’ threat on the wall to present the local administration in a bad light. The FIR quotes Lokesh Devi, wife of Gopal Valmiki, that the journalists asked her to put the house on sale on the wall. When she said she was illiterate one of them wrote it on the wall with a wooden stick and coal powder. However, the news report mentions Premchand Valmiki as the head of the family. The journalists have been booked under Sections 153 A (promoting enmity), 268 (nuisance) and 503 (criminal intimidation) of the IPC and Section 66 A of the IT Act. 8. On Sept 8, Anoop Kundu, a journalist from Haryana's Hisar district was charged with defamation and illegal trespassing by the police for a report showing the mishandling of grains at a government storage facility. An FIR was filed against him at the Uklana police station in Hisar district. Mr Kundu was investigating irregularities at the State Food Civil Supplies and Consumer Affairs Department in Uklana. The complainant, Assistant Food and Supplies Officer Sandeep Chahal, claimed that the story by the journalist carried a fake video that has been used to defame the department and its officials.

2020

1. On February 10, the Supreme Court restrained the West Bengal Police from arresting television journalists Bhupendra Pratap Singh, Abhishek Singh, Hemant Chowrasia and Ayush Kumar Singh who were booked in as many as five cases after they conducted a sting operation to show state ministers and TMC MLAs allegedly taking bribes. A part of the sting operation was telecast on TV channels and in print media in Kolkata on January 5. The journalists were given interim protection in one FIR on February 10 but police registered another FIR the same day. Soon after the court passed this order, two more FIRs were lodged against the journalists. On Feb 27, a bench headed by Justice Bhanumati gave interim protection to the journalists. Fresh FIRs compelled the journalists to move the Supreme Court yet again and the journalists sought transfer of the investigation to the CBI and protection from arrest for another journalist Umesh Kumar Sharma and authorized representative of the Bangla Bharat News Channel Anil Vijay. The restraining orders on the fresh FIRs were issued on May 22. 2. On February 17, J&K police conducted a nocturnal raid on Kamran Yousuf, photojournalist with NewsClick, in his home in Srinagar. A police party led by Deputy Superintendent of Police and SHO Pulwama took him in a police vehicle to the office of DSP and questioned about some Twitter account user called Kamran Manzoor’. Police let him go after a few hours. 3. On March 26, Varanasi District Magistrate (DM), Kaushal Raj Sharma issued a notice to journalists Vijay Vineet and Manish Mishra and editor-in-chief Subhash Rai of ‘Jansandesh Times’ after a report claiming that members of

22 78 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 2 3 the Musahar community (Dalit) were eating grass to survive at Koiripur village in Varanasi district ever since the lockdown was announced. Photographs of children eating grass accompanied the report. In the notice, DM Kaushal Raj Sharma stated that he had got the matter investigated by an ADM-level officer and established that the report was fabricated. He added that the Dalits were not eating grass but ankari dal (wild pulses) that grows along with wheat in the fields. The journalists stood by their report. 4. On 27 March 2020, a case was registered by police against K.K.Saxena, a journalist who had attended a press conference on 20 March by the then Chief Minister of Madhya Pradesh, Kamal Nath, who was announcing his resignation, despite the fact that Saxenaʼs daughter had returned from the United Kingdom two days previously. Both Saxena and his daughter later tested positive for COVID-19. The case was registered under IPC sections 188 (disobedience to order duly promulgated by public servant), 269 (negligent act likely to spread infection of disease dangerous to life) and 270(malignant act likely to spread infection of disease dangerous to life). 5. On March 29, journalist Om Sharma of Divya Himachal, was charged under Article 54 of the Disaster Management Act, 2005 and under the IPC by police in Baddi in Solan district of Himachal Pradesh for a live post on Facebook on March 29 about the plight of migrant workers. On April 26, a second FIR was lodged against him for posting a report in the Hindi newspaper Amar Ujala on his Facebook page that said businesses would close if employees were tested positive for Covid-19. The next day, a third FIR was lodged against him for criticizing the Solan administration for confusion in the relaxation of curfew. On his Facebook page, he asked if the administration thought people were “kites” that can be “swerved in any direction”. He was booked under Section 188 of the Indian Penal Code and Section 66 of the Information Technology Act, 2000. 6. On March 30, an FIR was registered against News18 Himachal reporter Jagat Bains in Nalagarh for “spreading rumours” that migrant workers were not getting rations. On April 23, he did a video report that private vehicles were crossing the sealed borders of Baddi the night before. An FIR lodged said that ‘Press reporter Bains circulated videos of the administration without any reason. He also violated lockdown guidelines.’ A third FIR was lodged against him for a report he filed from Sallewal village on April 25 where migrant workers again told him that they were denied rations by a government supplier. 7. An FIR was registered against Dainik Bhaskar journalist Gauri Shankar for filing a story on the plight of migrant workers in Kullu. Despite the veracity of the report, the area Sub Divisional Magistrate accused him of spreading “fake news.” The second FIR against Sharma came on April 26, when he shared a report from the Hindi daily Amar Ujala on Facebook. It claimed that the government had ordered businesses to close down for a few months in case any employee tested positive for the novel coronavirus. The report was taken down from the Amar Ujala website after the government rubbished its claim in a tweet. An FIR was filed against Sharma for simply sharing the article. He was booked under Sections 182 and 188 of the Indian Penal Code, and Section 54 of the Disaster Management Act. The third FIR was filed a day later, on April 27. On April 23, Solan’s district magistrate had announced

23 79 2 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 4 curfew relaxations between 8 am and 11 am in the industrial area covering three subdivisions of Baddi, Barotiwala and Nalagarh (locally known as BBN). When shops raised shutters on April 24, the local police forcefully shut them down. The following day, the sub-divisional magistrate clarified that only shops selling essential items can open during the relaxation hours. 8. On April 1, An FIR was lodged against The Wire and one of its founding editors, Siddharth Varadarajan, for allegedly posting false news about the participation of Uttar Pradesh Chief Minister Yogi Adityanath in a Ram Navami celebration in the midst of a nation-wide lockdown. The complaint, which picked up part of an article about the Adityanath government’s plans to go ahead with religious gatherings in Ayodhya and UP chief minister’s own participation was widely reported in the media. A second FIR was lodged subsequently. Both FIRs do not mention ‘fake news’ or any tweet. The IPC sections cited in the first FIR were for “creating or promoting enmity, hatred or ill-will between classes” and “disobedience to order duly promulgated by a public servant’ while the second FIR pressed charges under two sections of the IT Act dealing with impersonation and the transmission of obscene material. UP police drove from Ayodhya in Uttar Pradesh to Delhi, to deliver summons relating to complaints on April 11, though there was a nationwide lockdown on travel. 9. On April 6, web journalist Pawan Chaudhary was arrested in Munger, Bihar for allegedly spreading misinformation about the death of a COVID-19 patient. He was sent to judicial custody in jail in Munger, Bihar. Chaudhary is from Keshopur locality, Jamalpur town under Jamalpur police station. SHO (Jamalpur) Ranjan Kumar said that Chaudhary had been found to be spreading rumours on social media. 10. On April 7, TV journalist Damodharan was arrested by police and branded a ‘fake journalist’ for shooting visuals of pharmacy staff handing out medicines to patients without a doctor’s consultation at the Minjur Primary Health Centre in Minjur in Tamil Nadu. A doctor of the PHC filed the police complaint against the journalist. The journalist was slapped with charges including cheating, forgery, and preventing a public servant from discharging his duty. 11. On April 8, Lucknow city police on Tuesday lodged an FIR against journalist Prashant Kanojia for making alleged “objectionable remarks” about Prime Minister Narendra Modi and chief minister Yogi Adityanath on social media. Shashank Shekhar Singh, a local BJP leader, filed the complaint against Kanojia at the Ashiana police station. Kanojia was arrested on August 18 and managed to secure bail on Oct 21. He was finally released only on Nov 6 , after spending 80 days in custody. 12. A spate of FIRs was lodged against journalist Ashwani Saini, who produces video reports for his Facebook page ‘Mandi Live’. On April 8, he was booked under Section 88 of the Indian Penal Code and Section 54 of the Disaster Management Act for his report on the failure of the administration to supply rations to migrant workers in Bharajwanoo village. On April 13, three FIRs were filed against him for video reports on brick kilns that were operating despite the lockdown in Sundernagar. His car was impounded the next day for alleged curfew violation and another FIR was registered against him under fifth FIR was registered under the Motor Vehicles Act and Section 188 of the IPC.

24 80 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 2 5 13. On April 11, Mushtaq Ahmad Ganai (34 years), journalist with the Srinagar- based English daily, Kashmir Observer, was arrested and detained for two days at Sumbal police station in Bandipore district of Jammu and Kashmir when he went there to report the violation of the lockdown. The police intercepted his car despite showing documents including his press card. At the police station, the Station House Officer (SHO) Muneeb-ul-Islam slapped him several times and another policeman accompanying the SHO beat him with his lathi. The police filed an FIR and booked him under charges including “violating the lockdown rules” and “interfering in the professional work of the officials”. The SHO also threatened to “fix” him. He was released only after securing bail from the court. 14. On April 14, Rahul Kulkarni, Reporter, ABP Majha, was arrested over a report on the recommencement of trains in Bandra, which prompted mass gathering of migrants in the suburb during the lockdown to contain COVID-19. He secured bail two days later and on July 21, Mumbai police filed a ‘C’ summary ‘closure’ report stating that there was no proof against Kulkarni and his news report was not to be held liable for the crisis. The police also said that it was rather a misinterpretation of Kulkarni's report that led to the mishap. 15. On April 14, journalist Ashlin Mathew of The National Herald, Former IAS officer Kannan Gopinathan and senior advocate Prashant Bhushan, were booked by Rajkot police for “posting and retweeting” a tweet on March 28 that allegedly “insulted a religion with intention to create fear or alarm among people”. An FIR was lodged at Bhaktinagar police station on April 12 against them under sections 295 (injuring or defiling place of worship with intention to insult the religion of any class), 505 1 (B) (intent to cause fear or alarm among public), 35 (acts done by several persons in furtherance of common intention) and 120 B (criminal conspiracy) of the IPC. The offending tweet, posted on March 28 by Prashant Bhushan, retweeted a tweet by Union Minister Prakash Javadekar with his photo saying “I am watching ‘Ramayana’, are you? (sic)” to which Bhushan commented “As crores starve and walk hundreds of miles home due to forced lockdown, our heartless ministers celebrate consuming and feeding the opium of Ramayana and Mahabharata to the people (sic)”. Bhushan’s tweet was allegedly retweeted by Gopinathan and Mathew, the FIR said. The complainant, identified as an army veteran Captain Jaidev Joshi, took offence to the use of the word ‘opium’ in the tweet! According to the news report, V K Gadhvi, officer in charge of Bhaktinagar police station, the case was transferred to the Rajkot Special Operations Group (SOG). It is reported that Javadekar deleted his tweet so one can only hope the new investigating officer will include the entire original 1843 quote by philosopher Karl Marx as additional evidence. 16. On April 18, the Cyber Police Station (Kashmir Zone) lodged an FIR against photojournalist Masrat Zahra under section 13 of the draconian Unlawful Activities (Prevention) Act, and Sec 505 of the Indian Penal Code for uploading allegedly “anti-national” posts with the criminal intention to induce the youth and promote offences against public tranquility. No specific post was mentioned and the photojournalist was only identified as a ‘Facebook user’ in the police press release. The case against Zahra , shockingly under the draconian act that prevents those charged from even applying for bail for upto 90 days, received widespread condemnation. Zahra

25 81 2 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 6 had been filing photographs of Kashmir under the lockdown on her Facebook page and had done a report on the plight of Arifa Jan, the widow of a man who was killed by the Indian security forces in 2000. 17. On April 21, The Hindu correspondent in Srinagar, Peerzada Ashiq, was questioned by the Cyber Police in Srinagar and later by the Anantnag police for his report “Kin allowed to exhume bodies of militants in Baramulla” published by The Hindu on April 19. Police said the news was ‘fake’ and registered an FIR on April 20. Interestingly, the police press release also echoed the ‘annoyance’ of the authorities that their ‘version’ was not sought: “The news was published without seeking confirmation from the district authorities,” the press release said. 18. On April 22, journalist Gowhar Geelani was booked by the Cyber police, Srinagar, for allegedly ‘indulging in unlawful activities’ through his posts and writings on social media. Cyber police, which merely identified him as ‘an individual namely Gowhar Geelani’, said he was indulging in unlawful activities through his posts and writings on social media platform which are prejudicial to the national integrity, sovereignty and security of India”. Again, none of these posts were specified. The press releases also deliberately refused to specify the profession of the journalist, denying them the agency of their work. 19. On April 24, Andrew Sam Raja Pandian, a digital journalist and founder of in, a Coimbatore-based news site, was arrested for publishing two reports, the first about corruption in the government food distribution and the second about problems faced by doctors in the city. He was charged under sections 188 and 505 (i) of the IPC and Section 3 of the Epidemic Diseases Act. Pandian was released on bail on April 28. Initially, the reporter and photographer of the reports under question, Jerald Aruldas and M Balaji, were detained and interrogated by police for over nine hours. In an interview, Aruldas said, “The police did not hurt me or Balaji. We were not interrogated, just made to sit there for long hours. But it was still a very intimidating experience. There is an air of fear in the local media. Every media person is now scared of covering news related to COVID-19.” 20. On April 24, following multiple FIRs lodged against editor-in-chief of Republic TV Arnab Goswami for alleged defamatory remarks on Congress chief Sonia Gandhi and the Palghar lynching which took place in Maharashtra, the Supreme Court granted protection to against any coercive steps. On May 2, Mumbai Police lodged a fresh FIR against him for allegedly hurting religious sentiments by making derogatory remark regarding a mosque located in Bandra. Goswami again obtained extension of the interim protection granted by the Supreme Court. 21. On April 26, Neeraj Shivhare, a journalist based in Dantewada, Chhattisgarh, was given a showcause notice by a sub divisional magistrate for his report on his website Bastar Ki Aawaz on the plight of a woman who had to sell her fridge to buy rations. According to a report in Newslaundry, the notice says: “The whole nation is dealing with the pandemic and publishing such posts can create an atmosphere of fear in the public. The post has damaged the image of the administration, therefore this action of yours has disregarded the order of administration and comes under the category of punishable offence.” The notice said the story was ‘misleading’ but as the report later pointed out, the

26 82 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 2 7 story was true. A supporting video as well as the quotes from the woman and her husband confirm that it was only after the story broke that the administration woke up to their plight and made arrangements to supply them with milk for the child. 22. On April 27, journalist Zubair Ahmed posted a tweet that posed a simple question to the Andamans administration: Can someone explain why families are placed under home quarantine for speaking over phone with Covid patients? Ahmed was referring to a report in the website Andaman Chronicle about a family of four who were put into home quarantine because one of them, 70-year-old K A Rehman, called up a relative who had tested positive for Covid-19 to enquire about his health. For questioning the authorities, Ahmed was arrested u/s 188 (disobedience to order duly promulgated by public servant), 269 (negligent act likely to spread infection of disease dangerous to life) and 505 (1) (publishing or circulating any statement, rumour or report) of the Indian Penal Code. If that was not enough, the Andamans administration also threw Sections 51 and 54 of the Disaster Management Act, 2005, at him. He managed to secure bail the next day. 23. On April 10, Vishal Anand, a reporter for Aaj Tak, has two FIRs against him, both registered on the complaint of Dalhousie SDM Dr Murari Lal, said Chamba SP Dr Monika. The SDM alleged that Anand falsely showed visuals of Dalhousie in a report on COVID cases in Chamba, and alleged that vehicles for medical supplies were being used to bring the virus from Pathankot in Punjab. The second FIR was registered after Anand made comments on an online portal that the SDM showed favouritism in issuing curfew passes. 24. On April 30, Lucknow-based journalist Manish Pandey of Hindi news channel News1 India, was summoned (without serving a notice) to the Special Task Force headquarters in Lucknow, Uttar Pradesh, in connection with his story of April 17, about a letter sent by the Directorate General of Medical Education and Training, Uttar Pradesh, to bureaucrats in the state’s medical education department on April 13 that PPE kits supplied to eight hospitals and medical colleges in the state did not meet required quality standards. On 1 May, assistant superintendent of police Vishal Vikram Singh interrogated Pandey for nearly an hour regarding the source of the leaked official letter. 25. On May 7, Kerala Police filed an FIR against editor-in-chief of Zee News and prime-time show host of Daily News And Analysis (DNA) on Zee News, Sudhir Chaudhary under non-bailable sections for presenting a programme on March 11 that was allegedly offensive to the Muslim religion wherein he broadcast a so-called “jihad chart” detailing different “types of jihad” in a flowchart. 26. May 9: An FIR was lodged against Lalit Pokhrel, administrator of the ʻAll Sikkim Newsʼ Facebook page, Bishnu Dulal and the Editor-in-Chief of ʻAll Sikkim Newsʼ for reporting on mismanagement of quarantine centres. The FIR was filed by Hemant Rai, Sub-Divisional Magistrate, Pakyong in connection with a Facebook post by Pokhrel on the condition of JNV School in Pakyong East Sikkim, which has been turned into a quarantine facility centre by the government. A case was filed against Pokhrel under Section 505(2), 188 and 34of the IPC. 27. May 10: Delhi police summoned Delhi based Indian Express reporter Mahender Singh Manral for questioning over his news reports about forensic

27 83 2 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 8 evidence that audio clips of Tablighi Jamaat chief Maulana Saad Kandhalvi, were doctored. The audio clip is the basis of a case filed against the leader of Tablighi Jamaat, a Muslim religious group, for the spread of COVID-19 in the capital New Delhi. After calling the report “factually incorrect and purely conjectural, “the police sent a notice to Manral to join the probe on May 11 or face action under Indian Penal Code Section 174. 28. May 11, 2020: Dhaval Patel, editor of Face of Nation, a Gujarati news website, was arrested on charges of sedition for publishing a report that alleged Gujarat Chief Minister Vijay Rupani may be replaced for mishandling the Covid-19 response. He spent nearly 15 days in custody and managed to obtain bail on May 27 after an additional sessions judge Prerana C Chauhan said that prima facie, no serious offence was made out against him. On Nov 6, an On Nov 6, an order by Justice R P Dholaria of the Gujarat High Court quashed the proceedings against him after he tendered an unconditional apology. 29. May 14: Police began investigations against Gulshan Kumar Mithu, a journalist with Dainik Bhaskar, in connection with his report in Dainik Bhaskar on May 12 regarding protests by migrant workers in a government quarantine facility about poor food and living conditions. Police alleged that Mithu violated four sections of the IPC, including unlawful assembly, violating instructions of public officials during a pandemic, and acting negligently in a way likely to spread infection or disease. 30. On May 16, Himachal Pradesh police filed an FIR against Somdev Sharma, Manali-based correspondent for Punjab Kesari, after he reported on the administration’s laxity in quarantining inter-state travelers. Police alleged that Sharma had falsely written in his report that a person entered the district illegally without a pass and hence created panic. 31. On May 16, Maharashtra Police filed an FIR against Rahul Zori, reporter with TV9 Marathi news channel, for his report on corruption in the running of the Hadakhed relief camp for migrants in Shirpur tehsil, Dhule district of Maharashtra. The tehsildar, Aaba Mahajan filed the FIR alleging that the reporter had defamed him and tried to obstruct official work by questioning him. 32. May 18, 2020: FIR filed against Today 24 news journalist Ravindra Saxena by Uttar Pradesh police for his video report on the mismanagement of a quarantine centre in Maholi Tehsil in the Sitapur district of Uttar Pradesh. Saxena’s report said that people in a quarantine centre had complained about the quality of rice served to them by the UP administration. He was charged under the Prevention of Atrocities Act and the Disaster Management Act reportedly on an order from Uttar Pradesh Chief Minister Yogi Adityanath. 33. On May 18, Uttar Pradesh police lodged an FIR against Aashish Avasthi, editor, Media Break, on publication of a news item regarding problems being faced by Home Guards during COVID-19. Taking suo moto cognizance over this, the Press Council of India sought a report from the Uttar Pradesh government. 34. On May 22, Punjab Police filed a case against Jai Singh Chibber, reporter with the Punjabi Jagran newspaper, under Sections 188 and 505 of the IPC (disobeying a public official and making statements which incite the

28 84 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 2 9 commission of an offence), and Section 67A of the IT Act (obscenity) for his report about Congress minister Charanjit Channi for following the suggestions of astrologers. 35. May 23: Sishil Sharma, editor of Bastar Bandhu, was arrested and an FIR was registered against him in connection with his reporting on corruption in Kanker, Chhattisgarh. Sharma was later released on a personal bond of Rs. 5000. 36. On May 24, Madhya Pradesh Police filed a case against senior journalist Tansen Tiwari, for allegedly referring to Bharatiya Janata Party leaders as gappu (braggart) and tadipar (externed) in a social media post. A BJP leader and advocate, Awdesh Singh Bhadauria, filed a complaint with the Gola Ka Mandir police station that the journalist’s post on Facebook indirectly described Prime Minister Narendra Modi as ‘gappu’ and other party leaders as ‘tadipar’ and ‘balatkari‘(rapist). Though Tiwari’s social media post, did not name any BJP leader, he was booked under IPC sections 294 (public acts of obscenity) and 500 (defamation) and section 67 of the Information Technology Act (publishing or transmitting obscene material in electronic form). 37. May 24: Basant Sahu, a reporter with a vernacular daily, was allegedly arrested for asking a Deputy Commissioner about COVID-19 cases and circulating his response. Sahu had asked Seraikela-Kharsawan Deputy Commissioner A.Dodde about the first COVID-19 case in the district. He asked Dodde to confirm if there were any COVID-19 cases in Ichagarh, but Dodde allegedly denied this and told Sahu to go to bed. Sahu recorded the conversation and then circulated Doddeʼs response in the news and on social media. Sahu was arrested and sent to Saraikela divisional jail. He is now out on bail. 38. On June 6, Delhi Police registered an FIR against journalist Vinod Dua for allegedly spreading fake news, misreporting on the Delhi communal violence and stating that the "central government had done nothing to stop the violence". on the complaint of BJP spokesperson Naveen Kumar. A case was registered under IPC sections 290 (punishment for public nuisance in cases not otherwise provided for) and 505 (statements conducing to public mischief) and 505(2) (statements creating or promoting enmity, hatred or ill- will between classes), police said. On June 12, another FIR was registered by Himachal Pradesh police on charges of sedition on the complaint of one Ajay Shyam Vill in Kumarsain police station. Dua approached the Supreme Court to quash the charge. The Supreme Court reserved its order on Oct 6. 39. June 11: Bengaluru police filed a case against journalist Aakar Patel in connection with tweets that allegedly suggested that members of marginalized groups in India should emulate protests in the United States against police brutality and the murder of George Floyd in police custody. Patel had posted video clips of the protests in the United States, asking Muslims, Dalit, Adivasis and women in India to also protest. A week later, Twitter blocked Patelʼs account in India. The Bengaluru Police booked Patel under sections 505(1)(b), 153 and 117 of the Indian Penal Code. The second FIR was filed on 3 July by a Bharatiya JanataParty MLA in Surat West, Gujarat and president of Samast Gujarati Modhvanik Samaj Purnesh Modi in relation to Patelʼs tweets about the Ghanchi community, which he posted on 24 and

29 85 3 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 0 27 June, allegedly connecting the community to the Sabarmatitra in carnage in Godhra, 27 February, 2002. Patel is accused of “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony” through his Twitter posts. The complainant mentioned three of Patelʼs tweets in the FIR and used a derogatory term to refer to black people. 40. July 6: Jubilee Hills police in Hyderabad arrested newspaper Aaadab Telangana editor Veeramalla Satyam, sub-editor Shiva and reporter Venkateshwara Rao from Khammam district on charges of publishing false news and spreading rumours that Chief Minister K. Chandrasekhar Rao tested positive for coronavirus and is admitted in a corporate hospital. Based on a complaint, Mohammed Illyas of Rahmathnagar in Jubilee Hills, police registered a case under Section 505 (whoever makes, publishes or circulates any rumour or report) of Indian Penal Code and Section 54 of Disaster Management Act, against the publication and the editor. 41. July 8: The head of the Lawsohtun village council in Meghalaya, Lurshai Shylla, has filed a complaint against Patricia Mukhim, editor of Shillong Times, for a social media post alleging it could "incite communal tension". In a Facebook post, Mukhim raised concerns about the "murderous elements" in the assault case of five boys on a basketball court in Lawsohtun village of East Khasi Hills by a group of masked men on July 3. In the complaint, Shylla said Patricia Mukhim mentioned the 1979 conflict between tribals and non-tribals in her Facebook post. Lurshai Shylla alleged that Patricia Mukhim's comments gave fodder to some media houses in West Bengal that gave the incident a communal colour and put all Khasis outside the state in extreme danger, the complainant added. 42. July 18: Rajib Sharma, a television journalist who has been reporting on illegal cattle smuggling in Dhubri, Assam, was arrested by Dhubri police for allegedly obstructing a public servant in his duties, extortion and criminal intimidation on an FIR filed by Dhubri divisional forest officer Bishwajt Roy. Hours after his arrest, his ailing father died of a cardiac arrest brought about by the shock. Sharma was granted three days interim bail to perform the last rites. 43. July 31: Srinagar Cyber police detained The Kashmiriyat editor Qazi Shibli without ascribing any reasons for the detention. According to a statement by the newspaper, Shibli had got threat calls from unknown numbers regarding one of the stories. He had reported the incident to the Local Police officials. Last year, Shibli was detained under the draconian Public Safety Act for nine months in Bareilly Jail of Uttar Pradesh, Central India, after he had tweeted information about the deployment of additional troops in Jammu and Kashmir in the last week of July 2019. On 5 August 2019, the Government of India revoked J-K’s special status and clamped down in the Valley for several months. Shibli’s PSA detention was revoked on 13 April 2020, as the jails across the country decongested amid the COVID-19 pandemic. 44. Sept 8: Uttar Pradesh police booked five journalists in Bijnor on Friday on charges of circulating fake news reports. In an FIR filed by the Bijnor police, two journalists, one working with a local daily and another engaged with an electronic news channel, have been named, along with three unidentified reporters. The FIR said that Ashish Tomar and Shakil Ahmed tried to vitiate

30 86 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 3 1 social amity by circulating fake news about a Valmiki family from Titarwala Basi village under Mandwar police station putting ‘house on sale’ on their house after not being allowed to collect water from the village hand pump by an influential Dalit family from the same village. 45. Sept 14: Delhi Police arrested freelance journalist Rajeev Sharma under the Official Secrets Act (OSA) for allegedly passing on “sensitive information” to Chinese intelligence. Two of his associates, including a Chinese woman and a Nepalese man, have also been arrested. Sharma had earlier worked with The Tribune newspaper and was associated with the Vivekananda International Foundation (VIF), a think tank whose founding director is National Security Adviser (NSA) Ajit Doval. Following his arrest, a webpage linking his work to the VIF has been removed. Sharma was also an accredited journalist. On Dec 4, Sharma was granted default bail by the Delhi High Court, after police failed to file a challan within the mandatory 60 days. 46. Sept 20: Kishorchandra Wangkhem, reporter for the regional news portal The Frontier Manipur, was arrested on 20 September on charges of sedition, criminal intimidation and “promoting enmity between different groups” under articles 124, 154 and 503 of India’s penal code after he posted a comment on his Facebook page on 3 September about whether the online dispute could have electoral consequences for the minister because his wife is from a minority tribal community, the Maram, who are nonetheless the majority in his electoral district, Senapati, whereas the other woman is a member of the Meitei, the majority ethnic group in Manipur as a whole. 47. October 2: Lucknow-based freelance journalist Asad Rizvi, filed a police complaint against policemen who beat him up while he was on an assignment. Rizvi said he was reporting from an important protest site in Lucknow, which features a prominent statue of MK Gandhi, when policemen asked him to stop and assaulted him. He said the police then confiscated his memory card with footage of the violence. 48. Oct 5: Siddique Kappan, a Delhi-based journalist who works for Malayalam news portal Azhimukham, was on his way to Hathras to report the gang rape of a Dalit girl when he was picked up in Mathura on charges of attempts to spread disharmony. Three others accompanied him. All of them were later booked under Section 17 of the Unlawful Activities (Prevention) Act. Denied bail, he is still in custody. 49. Oct 18, Delhi Police detained Ahan Penkar, a journalist from Caravan magazine and charged him and nine others of criminal conspiracy for allegedly protesting outside Model Town police station. Six of the 10 accused are students. The protest was staged by students, activists and locals of Gurmandi demanding lodging of an FIR into the alleged rape and murder of a teenage Dalit girl — a domestic helper who was found dead at her employer’s house in Model Town. The police have registered an FIR under Sections 188 (disobedience to order duly promulgated by public servant), 120B (criminal conspiracy), 269 (negligent act likely to spread infection of disease dangerous to life) and 270 (malignant act likely to spread infection of disease dangerous to life) of the Indian Penal Code, and Section 3 of the Epidemic Act. 50. Dec 1: Gujarat police registered an FIR against three reporters, Pritipalsibh Gohil, Mahedrasinh Jadeja and a photographer, Prakash Ramesh, who conducted a ‘sting’ operation in connection with a fire at the Intensive Care

31 87 3 [BEHIND BARS: ARREST AND DETENTION OF JOURNALISTS 2010-20] 2 Unit of a designated Covid-19 hospital in Rajkot in November that killed five patients. Police alleged the reporters and photographer entered the prohibited lockup room without seeking permission. The journalists published a report in Divya Bhaskar daily newspaper on December 2 alleging that the three suspects arrested in connection with the hospital fire were given special treatment and held in the police staff room instead of the usual cell. The report included photos of the cell and the police station. The FIR was registered under 114 and 186 IPC, for the obstruction of a public servant in discharge of public functions and the presence of an abettor when the offence was committed, as well as the provisions of the Information Technology Act. The document accused the journalists of displaying “secret police works” in print and online. 51. Dec 11: Three journalists, Fayaz Lolu of ETV Bharat, Mudasir Qadri of News18 Urdu and Junaid Rafiq of TV 9 were detained and assaulted by police led by SSP Sandeep Chaudhary when covering the District Development Council polls in Anantnag in South Kashmir. The three said their equipment was also seized and damaged by police. They were interviewing a candidate when some local voters approached them, saying they had been stopped from going to the polling station in Srigufwara area of Anantnag district. Some people near the polling booth had started protesting when no polling took place till 8 am, even though officially, it was to begin at 7 am. No sooner had they finished recording the interview when SSP Sandeep Chaudhary came there and began beating them up. The journalists were taken to a police station and detained for a couple of hours.

Sources

1. Free Speech in India - The Hoot: Annual reports 2014, 2015, 2016 and 2017 2. https://twitter.com/4corners/status/913640041125052417, Sept 29, 2017 3. http://www.assamtribune.com/scripts/detailsnew.asp?id=may0918/at058 4. https://www.bhadas4media.com/vishal-anand-samet-3-ke-khilaf-case-darz/ 5. Free Speech in India 2018: The State Rolls On, Dec 31, 2020 6. Media lockdown in the age of Covid-19, May 3, 2020 7. Getting away with murder, Study on the killings of and attacks on journalists in India, 2014– 2019, and justice delivery in these cases, Dec 2019 8. Himachal Pradesh’s journalists face FIRs, harassment for reporting on government failures, May 12, 2020 9. Surge in harassment of Indian reporters over coronavirus coverage, May 27, 2020 10. India: Media’s Crackdown During COVID-19 Lockdown, June 15, 2020 11. Harassment and cases against journalists during COVID19, May 15-July10, 2020 12. J&K to Kerala, Gujarat, Bengal — Journalists across India face police action, even for tweets, Oct 26, 2020 13. Himachal Pradesh: 10 FIRs Against 6 Journalists For Reports, Posts on Lockdown 14. https://caravanmagazine.in/media/up-journalist-asad-rizvi-recounts-police-brutality-says- state-trying-to-dictate-stories 15. The Wages of Hate: Journalism in Dark Times, Campaign Against Hate Speech, September, 2020

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Acknowledgements

Research Assistance: Sarita Ramamoorthy

Many thanks to Sevanti Ninan and Laxmi Murthy for their inputs.

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The Free Speech Collective, comprising journalists, lawyers and activists, aims to protect the right to freedom of expression and to vigorously promote free speech and the right to dissent. We monitor and document violations of free speech, debate issues and analyse major developments that impact Freedom of Expression. We also seek to provide solidarity and support to those who face attacks on their freedom of expression.

For more details, please write to: [email protected]

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