Full disclosure: Phoenix Legal, which represents ARG Outlier-owned Republic TV, also represents and advises Newslaundry.

On February 23, the court of the chief judicial magistrate of Srinagar issued a non-bailable warrant against Republic TV editor-in-chief Arnab Goswami and three other Republic journalists. The order was issued in regard to a 2018 criminal defamation complaint filed by People’s Democratic Party leader Syed Naeem Akhtar Andrabi, who said Republic had broadcast a “defamatory and malicious” segment and had tarnished his reputation.

The Srinagar court has asked concerned Senior Superintendents of Police to ensure the appearances of Goswami, Republic’s J&K bureau chief Zeenat Zeeshan Fazil, former senior editor Aditya Raj Kaul and anchor Sakal Bhatt on March 23. The order had been issued following the failure of the four journalists to appear before the court.

On Saturday, the defendants’ counsel had filed an application for an exemption from personal appearances on behalf of the four journalists. They had submitted that due to prevailing conditions in the Kashmir valley, Goswami, Kaul and Bhatt could not be present. As for Fazil, who is a Srinagar resident, the counsel submitted she couldn’t be present due to personal and professional engagements. On February 14, an explosive-laden vehicle had rammed into a CRPF convoy killing more than 44 security personnel.

Denying the application for personal exemption, the court said the accused were required to appear in court and submit bail bonds. “From the record, it appears that the accused persons are performing their duties of journalists. During these days, all the journalists are in the valley for capturing day-to-day activities. The reasons as mentioned in the application does not seem to be so clear, as such, the application moved by the counsel for the accused persons for their personal exemptions for today, being devoid of any merits, as such stands rejected and made part of the file,” the court was quoted as saying by Kashmir News Service.

Speaking to Newslaundry, Sheikh Rizwan Javeed, Akhtar’s counsel, stated that the defendant’s counsel had assured the court of their clients’ presence on February 23. During that hearing as well, Javeed said, the accused persons were exempted from appearing in person on the defence council’s request.

Mrinal Ojha, a partner at Phoenix Legal and one of Republic TV’s counsel, also spoke to Newslaundry about the non-bailable warrant issued by the court. He said: “It would not be appropriate for us to comment specifically on sub-judice matters. Save that, there are Supreme Court decisions that state non-bailable warrants are to be used sparingly given extremely serious consequences that follow.”

Ojha is referring to a 2007 case, where the Supreme Court had reiterated the importance of an individual’s personal liberty. It had stated that the issuance of non-bailable warrants involves interference with people’s personal liberty and extreme caution must be exercised before such warrants are issued. Summons or bailable warrants should be preferred. The 2007 order also said if the accused seems to be avoiding the summons, the court should issue a bailable warrant in the second instance.

Saket Shukla, another partner at Phoenix legal, reiterated his inability to comment on sub-judice matters. However, he said, Supreme Court guidelines show that non-bailable warrants are to be issued against those charged with heinous crimes or who are likely to tamper with evidence. He added: “He [Goswami] was asking for an exemption from personal appearance due to the ground realities…”

Ojha also pointed out the impact of issuing non-bailable warrants in private defamation complaints. “NBWs in private defamation complaints are very disruptive, particularly when it comes to journalists.”

What’s the case?

The PDP leader had accused Republic TV of broadcasting a “defamatory and malicious” news segment. He accused the channel of aiming to tarnish his reputation as well as attempting to break up the PDP.

Republic TV’s show was based on a letter by the then Vice Chairperson of J&K Project Construction Corporation, Sheikh Khalid Jehangir, who is also accused in Akhtar’s defamation complaint. In his letter to then J&K Governor NN Vohra, Jehangir had levelled allegations of corruption against a certain “Works Minister”. Akhtar’s complaint said he was named “intentionally and deliberately” during the June 21 broadcast by Kaul and Bhatt.

Akhtar told Newslaundry: “The story they have done was baseless, the allegations are false. I have sought relief from the judiciary. I am a victim of a vicious and baseless attack on my integrity and public standing.” He added: “I am defending my 14 years of public service, that is the reason for approaching the judiciary.”

Javeed added: “No enquiry has started, no action has been taken in relation to the allegations made in the letter that was broadcast on Republic TV—the matter is yet to be determined. The letter doesn’t name anyone, yet Republic TV named Mr Akhtar.”

It the counsels’ job to defend their clients, and we leave it to the courts to investigate the merit in the allegations made by the PDP leader. However, it is fair to say criminal defamation laws have often been used as a tool to intimidate a free press. For example, between 2002- 2006, the J Jayalalithaa government had filed almost 120 criminal defamation cases against the media. Often these cases are filed against critics. However, given the rising number of criminal defamation cases against the media, it is perhaps time to revisit the dangers posed by the criminalisation of defamation and separate a private injury from social harm.