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This article is written  by Vybhav S who is pursuing an Introductory Course to Legal Writing from Lawsikho.

Table of Contents

Introduction

The phase of lockdown has indeed been a time of appraisal of various issues varying from mental issues to political issues that gripped everyone in one of the darkest months of humanity. Everyone was expected to be humane and try to help each other in all ways possible and that is when the media and their associates played a crucial role in providing crucial information to the people and also guide the people through their problems and prevent panic and spread of misinformation. 

To provide true and fair information, it is highly necessary for journalists and media professionals to critically review the activities of individuals or groups that could cause a large impact on society including the government. The above case proved that the journalists do retain the right to critically review the administration and actions of the government and due importance would be given to every profession and opinion and journalism being the fourth pillar of democracy and its freedom must be retained. 

The court held that, a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or to create public disorder and reminded us of our right to criticize and to keep up the Freedom of speech and expression. 

This article will give insights into the following: the Facts, the prayer of the petitioner, the issues, respective arguments, judgment, and analysis of The Vinod Dua v. Union of India case.  

Facts of the case

Mr. Vinod Dua, Padmashri recipient and a journalist by profession for the past many decades had released a YouTube video on his YouTube channel named, HW News Network on 30th of March, 2020 as an episode of his show “The Vinod Dua Show”. The petitioner Mr. Dua, in this video spoke about the nationwide lockdown, the critical health issues caused by Covid-19. He also added that the government did not have sufficient facilities for testing. Another thing spoken about was the lack of sufficient information on the availability of materials like PPE kits, N95 masks, etc. He then added about the major labor migration issue faced in our country. It was alleged that the petitioner was spreading false and malicious news relating to the Prime Minister of India and that is inciting violence amongst the citizens and disturbing the tranquility of the public. The petitioner placed his stand by saying that contents in the video are pure and simple critical analyses of the functioning of the Government and cannot by any stretch of imagination be said to be alleged offenses.

An FIR (FIR No.0053) was registered on 6th June 2020, referring to two timestamps of the video on the following time making the statements:

  • 5 minutes and 9 seconds of the video – He states that Prime minister Narendra Modi has used deaths and terror attacks to garner votes.

  • 5 minutes and 45 seconds of the video – he claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitizer exports were stopped only on 24th March 2020. 

The FIR was lodged under Section 124A, 268, 501, 505 Indian Penal Code. Additionally, the petitioner was sent a notice for an appearance at the police station in Kumarsain, Himachal Pradesh under Section 160 Code of Criminal Procedure. The petitioner stated his various health issues and travel restrictions in place to travel from Delhi to Himachal Pradesh and connected through various virtual modes.

Prayer of the petitioner

This petition Under Article 32 of the Constitution of India prays for the following principal reliefs:

  •  Quash FIR No. 0053 dated 06.05.2020 registered at Police Station Kumarsain, District Shimla, Himachal Pradesh.
  •  Direct that henceforth FIRs against persons belonging to the media with at least 10 years standing to be not registered unless cleared by a committee to be constituted by every State Government, the composition of which should comprise of the Chief Justice of the High Court or a Judge designated by him, the leader of the Opposition and the Home Minister of the State.

Issues

  1. Whether the petitioner used sedition in his comments under 124A of IPC?
  2. Whether the petitioner is guilty of a public nuisance or an illegal omission that caused injury under 268 of IPC?
  3. Whether the petitioner’s comments were defamatory as according to section 501 of IPC?
  4. Whether the petitioner’s comments were conducing to public mischief under section 505 of IPC?
  5. Whether there is a necessity for the judiciary to establish a committee to check and clear the FIRs issued against the persons of media with at least 10 years’ experience?

Petitioner’s arguments

  • The petitioner’s counsel strongly argued that Section 124A, 268, 501, and 505 of IPC cannot be charged on him because the video is a pure and critical analysis of the functioning of the government and cannot be quoted under the above offenses and as a journalist the petitioner was entitled to do so.
  • Going by the definition of Sedition under Section 124 A of IPC, it states about performing certain acts which would bring hatred or contempt, etc. to the Government of India, established by law which would incite violence or create a public disturbance. The petitioner’s counsel argued that the petitioner has not performed any action against the Government of India that would incite violence or create a public disturbance.
  • The petitioner sought the quashing of the FIR lodged against him in Himachal Pradesh, the petitioner sought guidelines from the Supreme Courtin respect of lodging of FIRs against persons belonging to the media of a particular standing as done in the case of medical professionals vide judgment in Jacob Mathew v. the State of Punjab (2005) 6 SCC 1 para 51, 52 affirmed by the Constitution Bench judgment in Lalita Kumari v. Government of Uttar Pradesh and Ors. (2014) 2 SCC 1 para 115.
  • The petitioner’s counsel argued that the statement is given in the FIR, “Hon’ble Prime Minister used threats and terror acts to garner votes”; and “Prime Minister garnered votes through the act of terrorism” was factually incorrect and such an assertion was never made by the petitioner.
  • The council also argued that the elements required for the act to be defined as an offense under Section 501 and 505 were not established anywhere.
  • The counsel finally raised the argument stating that initiating a criminal proceeding against the petitioner is an abuse of the process and being violative of the fundamental rights guaranteed under the Constitution of India and requested the FIR to be quashed.

Respondent’s argument

  • The counsel of the respondents argued that the petitioner had attempted to spread misinformation or inaccurate information a create a situation of panic amongst the people. They took the support of the statement, “ some people feared that there could be food riots post lockdown” which was baseless and held the complete potential to destroy the peace among the citizens. Such an action would be covered and be punishable Under Sections 52 and 54 of The Disaster Management Act.
  1. Section 52 – Punishment for false claims.
  2. Section 54 – Punishment for a false warning.
  • Regarding the second prayer, the counsel argued that if the prayer was to be granted then it would seem like the judiciary is overstepping in the field and area of the legislature. They also go on to say that any preliminary inquiry as suggested by the petitioner would be opposed to the law and not sanctioned or not permitted by law.
  • The council added that the petitioner did not physically arrive before the Himachal Pradesh Police and stated that the matter would come under Section 188 of the Code of Criminal Procedure read along with Section 511 of the Indian Penal Code for disobeying the orders of the concerned authorities. They also requested an investigation on the same matter as they let Section 188 be brought along with Section 195 and would be relatable to the stage of cognizance by Court and not in anterior stages and as such the matter be allowed to be investigated.
  • According to the Norms of Journalist Conduct framed by the Press Council of India (2010 Edition), the petitioner was obliged to check the facts, data, and their sources thoroughly and authenticate before publishing or making such statements in the light of the pandemic. 

The judgement

The Supreme court concluded the petition with the judgment as follows:

  • The court quashed FIR No. 0053 dated 6.5.2020, registered at Police Station Kumarsain, Distt. Shimla, Himachal Pradesh, against the Petitioner, The court embarked “a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or to create public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in.”
    Thus, the court commented that it was within the right of the petitioner as a journalist that he exercised his concern, and he held all the rights to criticize the actions of the government.
  • However, the court rejected the prayer that no FIR be registered against a person belonging to the media with at least 10 years of standing unless cleared by the Committee as suggested. The Court stated that it is the duty of the legislature and judiciary should not overstep to their area or field of duty. 

Analysis

The arguments were mainly based on Section 124A,268,501,505 Indian Penal Code, Sections 52 and 54 of The Disaster Management Act, and Section 188 read along with Section 195 and 511.

  • Section 124A (Sedition) 268 (Public Nuisance) and 505 (Statements conducing to public mischief) –  

According to the FIR, the petitioner was spreading fear and panic among the citizens and raising hatred or contempt towards the Government of India and the respondents strongly felt that when the video is seen in totality it held the ability to create panic and hatred towards the government whereas the respondents told that it was a pure and simple critical analysis of the functioning of the government and the petitioner is entitled both as a journalist and as a citizen provided by the fundamental right promised under Article 19(1)(A), i.e., right to freedom of speech and expression. On analysis, we can state that no charges of sedition can be put on the petitioner from the following:

  1. The petitioner never said that the Prime Minister used terror attacks or terrorism to garner his votes rather he spoke about Pulwama and Pathankot attacks and Balakot airstrikes to garner votes and these are sufficient to hold the view that no allegations were made against the Prime Minister.
  2. The comment made on the availability of N95 masks, PPE kits, and testing facilities not being adequate is just an appraisal of the situation then.
  3. The issue regarding the migration of workers was to be analyzed in the manner that the migration had begun much before the petitioner even made such a comment and the statement was just a concern of the petitioner as a journalist.

Thus, we can conclude by agreeing to the court stating that the statements “can at best be termed as an expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. 

They were certainly not made with the intent to incite people or showed a tendency to create disorder or disturbance of public peace by resort to violence. It can be concluded that since these charges are removed any prosecutions on the same grounds would be a violation of Article 19(1)(A).

This subdues the main charges imposed on the petitioner in the FIR lodged against him for posting the video on YouTube. There were also charges on him for not following the order seeking his physical presence for interrogation on the FIR.

  •  Sections 52 and 54 of The Disaster Management Act (Punishment for false claim and warning) – The court clearly stated that the petitioner had posted his concern and had only criticized and commented on the measures taken by the government and in no way tried to create a sense of panic among the people. 

The court held that “… a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or to create public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in.” 

Further when we look into the previous cases dealt in the supreme court like Express Newspapers Pvt. Ltd. & Ors vs Union Of India & Ors on 7 October 1985 and Sakal Papers (P) Ltd., And Others vs The Union Of India on 25 September 1961, we get the opinion of the court on criticizing the government that the court believes that, “concept of a free press is freedom of political opinion and at the core of that freedom lies the right to criticize the Government, because it is only through free debate and the free exchange of ideas that Government remains representation to the will of the people and orderly change is effected.”

Thus, we can conclude by stating that the petitioner was acting responsibly, and even during the time of this disaster(pandemic), the petitioner just exercised his rights and nothing beyond.

  • Section 188(Disobedience to order duly promulgated by the public servant) read along with Section 195 (Prosecution for contempt of the lawful authority of public servants, for offenses against public justice and offenses relating to documents given in evidence) and 511 (Punishment for attempting to commit offenses punishable with imprisonment for life or other imprisonments) – 

The petitioner had sent a response to the concerned authorities after he received the notice to appear for the interrogation and he cited the obstacles he was facing in doing so due to his health conditions and they are: 

  1.  Notice as per Himachal Pradesh Covid guidelines dated 11.05.2020, any person coming from the red zone is directed to be in institutional quarantine for 14 days. Since the petitioner resides in New Delhi which is currently a red zone, he would be forced to be in quarantine for 14 days.
  2.  The petitioner is 66 plus years old, as per Ministry Of Health guidelines, all citizens of 65 plus age were asked not to travel due to health safety risks.
  3. Further, the petitioner suffers from Thalassemia minor with Iron deficiency anemia, pancytopenia (low red & white blood cell and low platelet count), chronic liver disease with portal hypertension & splenomegaly, diabetes, and hypothyroidism. He also has esophageal varices with a high risk of bleeding. Therefore doctors have stated that stepping out of his house would be life endangering.
  4. He then promised to join the interrogation via online medium.

Stating all such medical problems supported by a medical certificate and guidelines issued by the Ministry of Health. The court let go of the charges on him and ordered the concerned authorities to either go to his residence to interrogate or else conduct it through an online medium. This order does seem reasonable to look after the health conditions of the petitioner as a citizen of the country.

  • Prayer II of the petitioner (creation of a committee) – The Court ruled out the prayer stating that it is the duty of the legislature and judiciary should not overstep to their area or field of duty. The court considered  

Kedar Nath Singh vs. the State of Bihar (20.01.1962 – SC) and stated that the journalists are entitled to protection as every prosecution Under Sections 124A and 505 of the Indian Penal Code must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh. 

This does seem fair to let the legislature decide whether to take the initiative to establish such a committee consisting of various dignified individuals. 

Conclusion

Vinod Dua V. Union of India is considered a landmark judgment that has upheld the virtue of freedom of speech and expression and understanding the freedom required for journalism to perform its duty as the fourth pillar of democracy. 

I would like to quote Mr. Scott Pelley, an American journalist, and author who has been a correspondent and anchor for CBS News for more than 31 years old that “There is no democracy without journalism” and people like Walter Cronkite believe that Freedom of the Press is democracy and the court was wise enough to understand and analyze the relationship between Democracy and Press. 

The court in this case did an in-depth analysis of every statement told in the video to come up with such a judgment. Thus it can be said that there is only a thin line of difference between being responsible and irresponsible, and during these tough times every individual must act responsibly and the duty to act responsibly as they are the eye of the people and the whole population tends to have utmost faith in them. 

Now they must be unbiased, non-manipulative, and truthful toward the society they serve, and on the other hand, it is the duty of the legislature, executive, and judiciary to understand the necessity of both the media and its freedom for the sustainability of democracy and largely be accepting towards open criticism without any malice or hatred.

References

Case reference

  • Citation- Vinod Dua vs. Union of India (UOI) and Ors. (03.06.2021 – SC): MANU/SC/0363/2021

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