The case is called Aman Kumar Bhardwaj vs State of Himachal Pradesh. It started with a news report on Zee Punjab Haryana Himachal in May. As the state tinkered with Covid restrictions during the second wave, journalist Aman Bhardwaj, 26, applied for two government-issued Covid epasses to enter the state, one each for Amitabh Bachchan and Donald Trump.
The passes were duly registered and emailed to the journalist on May 7. “If you are issuing passes for Trump and Bachchan, it means there is no review mechanism in a state with a high tourist intake,” Bhardwaj at the time.
Zee ran the report but the government was not pleased. The same day, Ashutosh Garg, director of the state’s information technology department, filed a police complaint against Bhardwaj for forgery, cheating and false warning under the Indian Penal Code, the IT Act and the Disaster Management Act. The police filed an FIR and, in the following weeks, summoned the journalist to the Shimla East police station three times and seized his mobile phone and wifi system.
Three months on, Bhardwaj has left Zee but the case has not left him. In a June petition to the Shimla High Court to quash the FIR, he argued that the state’s “harassment” violated his constitutional right to free speech. “The entire exercise of registration was done with bonafide intention to unearth the truth and loopholes behind the process of registration for the larger public interest,” the plea emphasises. “The petitioner being a journalist is under a social responsibility to act as a watchdog to the acts and deeds of the government.”
Replying to the plea on July 19, the Himachal government made a case for hounding Bhardwaj. Garg and Shimla’s police chief Mohit Chawla are co-respondents in the case.
The BJP government’s counter affidavit is replete with misleading, exaggerated claims that betray its impatience with critical reporting. (During the lockdown in 2020, Himachal Pradesh five journalists with as many as 14 FIRs for covering governance failures.)
“The petition is an attempt to threaten an investigation into the offences,” the government claims in its response to Bhardwaj’s plea. “The offences committed by the petitioner are having far reaching effects upon society.”
What are these “effects upon society” or the threat to the police investigation? The government doesn’t say.
The thrust of its argument is that Bhardwaj used a “false declaration” and “false documents” to register the passes, and his report was an attempt to raise a false alarm and “cause panic and scare in the general public”. The counter does not elaborate how the Zee report caused panic or scared the public.
The counter does not acknowledge that Bhardwaj is a journalist, conveniently sidestepping the protection he enjoys under Article 19 of the Indian constitution. (In May, when the Himachal police seized his phone and wifi, the seizure memo referred to him as a “Zee media correspondent”.) “I’m being singled out and targeted for doing my work,” Bhardwaj told Newslaundry, pointing out that the on the epass report also included anchor Jaiprakash Sharma and bureau chief Vinod Lamba. But they – or Zee – were not named in the FIR. It only mentions Bhardwaj.
The government’s reply does not address Bhardwaj’s argument that the “false declaration” was made to test the epass system’s robustness in public interest. Instead, the government claims that the news report is not covered under the right to free speech and expression. Here’s its reason: “A false and untrue self-declaration using illegitimate means can never be justified as a rationale and permissible privilege of speech and expression, where it is clear that the petitioner has intentionally acted with a guilty mind by using false and untrue self declaration. It is pertinent to submit here that the freedom of speech and expression is not to be used like one way traffic, but it’s to be used cautiously without causing harm to anyone.”
But who was harmed by Bhardwaj’s journalism? According to the government, it was Garg, the IT director: “The petitioner has used the names of Donald Trump and Amitabh Bachchan fraudulently by harming the body, mind and reputation of the complainant who is a functionary of the state government by personation.”
Article 19 puts eight restrictions on free speech and expression: it harms India’s sovereignty and integrity, the security of the state, friendly relations with foreign states; it goes against public order, decency or morality; it amounts to contempt of court, defamation or incitement to an offence. The Himachal government’s petition doesn’t clarify under which of these qualifiers “harming the body, mind and reputation” of the state functionary falls.
Does the government recognise that a false declaration churning out entry passes was a red flag for its epass system? That it meant unvetted people could enter the hill state when Covid cases were rising? “It is further submitted that the verification of the document was to be done at the concerned barrier at the time of entry of the pass holder,” the reply states, adding that Bhardwaj put out the report when governments were going through “hard times” due to the pandemic.
Then there is an outright lie. The BJP government claims that Bhardwaj did not “verify any of the facts from the authorities concerned before telecast”. Bhardwaj’s 18-minute on May 7 included comments by Rajiv Saizal, Himachal’s health and family welfare minister. He had also reached out to Sanjay Kundu, the state’s police chief, but did not receive a response.
The journalist has made this point in court, but the government refuses to acknowledge it, saying it is “wrong and denied”. “The petitioner is making bold assertions to escape the responsibility of his act,” it claims.
The counter affidavit is in line with what Ram Lal Markanda, the information technology minister, told Newslaundry in May: “Just because Bhardwaj is a journalist does not mean he can write anything.”
Bhardwaj is distraught. “The last three months have been very stressful,” the journalist said. “The highest offices of the state seem to have turned against a 26-year-old journalist. They could have taken the report in good stride and rectified the epass system. Instead, they have chosen to put pressure on me for finding a fault.”