These are strange times we live in. Digital court hearings are now our current reality.
This reporter was able to observe court proceedings, via videoconferencing, in the matter where the Supreme Court accorded Arnab Goswami, editor-in-chief of Republic TV, protection from coercive action for three weeks.
Goswami — who often indulges in shouting matches with panelists on his Republic shows — filed a plea seeking to quash “several” FIRs and complaints filed against him for his tirade against Congress chief Sonia Gandhi on one of his primetime segments. Goswami filed his last night after 8 pm. The Supreme Court bench, comprising Justices DY Chandrachud and MR Shah, broke convention and heard the petition this morning.
Digital hearings the new normal
The court proceedings online started at 10.30 am sharp. All the parties — judges and lawyers linked through the Vidyo app — wore their official robes and black coats. Item 2 in Virtual Court Number 2 (as shown in the cause list on the Supreme Court website), “Arnab Ranjan Goswami versus the Union of India”, was going to begin shortly.
The court proceedings online were vastly different than the ones being conducted inside courtrooms. For one, the conduct of the judges and the lawyers was informal even as the dignity and respect of the court was maintained.
When Item 2 was announced, all the advocates representing the various parties made their presence known. The first few minutes went in marking the attendance of the lawyers who were present along with the parties they were representing.
The brief hearing lasted a little over an hour. It was surprisingly smooth with few technical hiccups, considering there were almost 25 people participating online. Eight lawyers could be seen on-screen, prompting Justice Chandrachud to observe: “Why so many lawyers?”
The senior advocates present, along with their juniors, included Mukul Rohatgi for Goswami, Kapil Sibal for the state of Maharashtra, Vivek Tankha for Chhattisgarh, and Manish Singhvi for Rajasthan. There was no representation for Madhya Pradesh, Telangana, and Jammu and Kashmir even though the states were party to the proceedings.
Senior advocate Abhishek Manu Singhvi was also present in “court”, but he left before the proceedings began. Justice Chandrachud asked, “Where is Dr Singhvi? Let’s wait for a minute till he joins us.” To this, Sibal quipped: “Perhaps he has gone to another court,” prompting laughter among all those who were present.
While everyone waited for Abhishek Singhvi to join the hearing, Rohatgi’s window went silent. A junior said he’d been disconnected and would return shortly. Rohatgi soon returned, and the hearing began.
Debates incite provocative questions
Rohatgi began his submissions with a reference to lynching of three men, including two sadhus, in Maharashtra’s Palghar, “by a crowd of around 200 people” in the “presence of 12 police personnel and forest guards”.
A video of the incident, Rohatgi said, showed how the police were standing by, virtually complicit in the attack. “There is no religious angle here,” he said. “No other person or religion involved.”
Rohatgi said Goswami discussed the incident on his show, Poochta Hai Bharat, for 45 minutes on April 21. The debate, Rohatgi said, included Goswami directing provocative questions to the head of the Congress party, such as why the Congress creates a hue and cry when someone like Pehlu Khan is lynched, but not when sadhus are killed.
Rohatgi said the complaints and FIRs filed against Goswami in different states across the country were “nearly identical” in nature. The FIRs are filed under Sections 153 (provoking riots), 153A (promoting disharmony and enmity between different groups), 153B (safeguards national integration), 295 (outraging religious beliefs), and 505 (criminal defamation), among others, of the Indian Penal Code.
“Lynching occurs when rumours spread — child kidnapping, organ thieves, etc. Here, no such rumour took place,” Rohatgi said. “All the FIRs are principally based on defamation. This is the mischief.”
Rohatgi said: “Defamation can only be filed by the person aggrieved. If the chief [Sonia Gandhi] is feeling defamed, she is welcome to file a case of defamation herself. The idea is to control the press. The near identical FIRs are filed from states controlled by this party.”
He continued: "Your lordships have always protected freedom of speech. The idea here is to muzzle the press. All these offences are bailable. They were registered one after the other across the country against my client.”
Rohatgi added that out of 45 minutes of Goswami’s show, the FIRs were filed on the basis of a 40-second clip.
Once Rohatgi completed his submission, Justice Chandrachud noted that none of the complainants were made parties to the case. Rohatgi replied: “I did not have time to implead them. I have filed this petition in one day because of the murderous attack on my client and his wife, who is also a journalist.”
The alleged attack in question took place on the night of April 22, when Goswami and his wife were going home from the Republic office in Mumbai. The Mumbai police has two members of the Indian Youth Congress in connection with the alleged attack.
Rohatgi concluded: “We are grateful the court took the matter today, otherwise we don’t know what would have happened with my client’s life and liberty over the weekend.”
Exceptions to freedom of speech
Sibal, who was representing the state of Maharashtra, began his arguments once Rohatgi was done.
“Refer to the link supplied by Rohatgi,” Sibal said, referring to the video of Goswami's April 21 show which was under contention. “You may watch from 10:51 minutes onward and you will know exactly what he [Goswami] said. ‘Santho ko maara gaya’ — this is freedom of speech?”
Sibal read a transcript of Goswami’s speech on the show: “Italy waali Sonia Gandhi...aaj woh chup hain, man hi man main mujhe lagta hai woh kush hai...woh khush hai ki santon ko maara gaya, jahan pe unki sarkar hai. Report bhejegi woh...woh Italy main report bhejegi...main bol raha hun...jahan pe main ne sarkar bana li, wahan pe Hindu santon ko main marwa rahi hun. Aur wahan se waah waahi milegi usko…’waah beta waah, bahut accha kiya Sonia Gandhi Antonia Maino’.”
Roughly translated, in the section Sibal quoted, Goswami accused Sonia Gandhi of getting the sadhus killed and sending reports to Italy about how she has managed to bump off Hindus in states where she governs. Not only this, according to Goswami, she is congratulated for her work by people in Italy.
“We are all lawyers to protect personal liberty and stand for freedom of expression,” Sibal told the court. “Is this freedom of speech sir, I want to ask. Can one come to court under Article 32 for fake freedom of speech?”
Article 32 is the right of an individual to move the Supreme Court for the protection of fundamental rights.
As the hearing was going on, one could hear slight background noises from one of the windows, and a small child laughing and talking. Considering the situation in which the hearings were taking place, these disturbances were ignored.
Sibal continued: “You are trying to incite communal violence by pitting two communities here. Hindus against minorities. I will compare what has happened in other cases. Kanhaiya Kumar was booked on sedition under a lot less.” Kumar, a politician and the former president of the Jawaharlal Nehru University students’ union, was booked on charges of sedition in February 2016 for raising “anti-national” slogans in the JNU campus.
“This is the reason why all of this is happening in this country” Sibal said, referring to the rise in communal tension. “Whether a case for defamation makes out or not, the settled position is that if an FIR is lodged and by a reading of it an offence is made out, then there is no question of quashing it.”
“What freedom of expression are we talking about? We are also talking about other cases apart from defamation. According to me, sedition is also attracted here,” Sibal argued. “When Dalits come to court, the case is not listed so fast. When Omar Abdullah’s habeas corpus case was filed, the court gave time. The court must give time, the procedure must be followed in accordance with the law.”
Sibal went on: “If Congress files an FIR, what is the problem? Don’t BJP [members and leaders] file FIRs? Rahul Gandhi can appear in court. Why can’t FIRs be filed against this person? What special privileged position does he [Goswami] have that he won’t appear?”
Goswami ‘misusing’ the broadcasting license
Justice Chandrachud clarified that since the FIRs against Goswami are filed in different states with different jurisdictions, the matter has come to the Supreme Court.
To this, Sibal said: “We are okay if the FIRs are clubbed, but they [Goswami’s legal team] are here to quash the FIRs. That’s for the police to decide, let them investigate.”
Manish Singhvi, representing the state of Rajasthan, echoed Sibal’s contention. “153A and 153B offences are non-bailable. A prima facie case is there,” he said. “FIRs can be registered against people anywhere in this country. Consolidation of cases may be considered but the investigation cannot be stopped.”
He continued: “What more enmity do you want? They [Goswami] are saying that a person is happy that some people are killed. People from the same community may have killed the sadhus, but it is all about the religion.”
Tankha, representing Chhattisgarh, said this was a specific misuse of a broadcasting license.
“We have been seeing this [misuse] for a while. But this is the peak,” he said. “But for Covid-19, there would be protests. But in these times, people are staying at home. He [Goswami] masquerades as a journalist, but incites communal violence. That is his agenda, especially in times of Covid.”.
Tankha continued: “He says 80 percent are Hindus, so 20 percent beware. Is this the way to speak? If this isn’t promoting enmity, then what is? Now he is seeking protection after inciting communal violence. The court can’t grant protection here. There will be very serious consequences to this. There will be another division in the country.”
Tankha then concluded his submissions: “These people have broadcasting licenses and they can say whatever they want. If they are protected, they will say more. It is not just Arnab Goswami, it’s people like him. They are dividing the country.”
Arnab Goswami is 'not a political entity'
Rohatgi began his rebuttal arguments.
“I have come to court seeking to quash the FIRs...All parties in question were Hindu, so there is no communal disharmony,” he said. “This court has come to the aid of those who raise provocative questions. Arnab Goswami is not a political entity. He is neither BJP nor Congress. So why is Kapil Sibal talking about Rahul Gandhi?”
When Rohatgi completed his submissions, Justice Chandrachud said that the court intended to give Goswami time and protection. “We do not have all the FIRs and complaints before us, we give you time to bring them on record,” the judge said.
Secondly, the court observed that it was inclined to stay further proceedings in all FIRs except one case. Goswami could choose which case that could be. “Cause of action appears to be in one state, we will stay the FIR pending the amended application,” the judge added.
At this point, Rohatgi sought time for two minutes to speak to his client and seek further instruction, to which the court agreed.
As Rohatgi temporarily went offline, the mood changed. “We hope you are keeping well,” Sibal said to the judges. Justice MR Shah responded: “I must say you all are looking fresh as well.”
“Yes, we are,” Sibal responded, “We are spending more time with our wives and doing more exercise. Spending time with the family and speaking to grandkids. Reading books. We have never had so much time.”
“I am on my eighth book,” Justice Chandrachud said. “I have been reading.”
“I have also started a new book,” Sibal said, “I already have a couple of chapters.”
Justice Shah revealed that he has been binge-watching television. “I have seen so much TV. The British shows are really good. I also saw this American serial which talks about their Congress.” Several shows on streaming platforms concern the US Congress, including Madam Secretary and Designated Survivor. Justice Shah did not clarify which one he was referring to.
The brief moment of levity died and the virtual courtroom went back to business.
“If I may propose, you can take the FIR which is filed in Nagpur and transfer it to Mumbai,” Sibal said. “This suggestion will be in Goswami’s favour.” Tankha, however, sought some “restraint” on Goswami suggesting that he would otherwise go “scot-free”.
Justice Chandrachud rejected Tankha’s suggestion. “Ultimately we must trust the media. If the court starts imposing restrictions on the press, then it will lead to a very grave situation. In my personal opinion we must be cognizant of the dangers of court imposing restrictions.”
By now, Rohatgi was back online and he agreed with the suggestion of transferring the FIR from Nagpur to Mumbai.
Once this was settled, the court read out its order. It issued notice on Goswami’s plea and accorded him protection from “coercive action” for three weeks. In this time, Goswami was free to seek legal remedies against the FIR before the appropriate courts at the district level or the high court.
These matters would be adjudged on the merits of the case, Justice Chandrachud said.
When the hearing was over, Rohatgi was excited about a new show on television which he insisted the judges must see. “There is this new show on TV called The Hunters,” Rohatgi said. “It has Al Pacino in the lead role.” This incited a “wow” from Justice Chandrachud before Rohatgi described what the show was all about.
“It is on Netflix, I think,” Rohatgi said before several other participants corrected him, saying the show is on Amazon Prime. “It is a superb serial,” Sibal said. “I have seen it.”
Justice Shah offered up his own recommendation: The Crown, based on the life of Queen Elizabeth II.
With the recommendations out of the way, the hearing concluded.
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