Why CJI order on Pawan Khera has ensured ‘freedom’ and ‘justice’

The Supreme Court’s decision to grant a quick bail to Congress spokesperson Pawan Khera is facilitated ironically by a judgment delivered by the same court in a case involving Republic TV anchor Arnab Goswami.

Chief Justice of India (CJI) DY Chandrachud, earlier as an SC judge, had granted bail to Arnab where he was pitted against the Union of India (case [(2020) 14 SCC 12)]). The CJI’s just order was made possible by the timely ‘apology’ tendered by Khera.

In principle and for ensuring rule of law, the order of the CJI means a lot. The accused, arrested for the alleged use of objectionable words against Prime Minister Narendra Modi, was granted interim bail till March 3.

An FIR was lodged against Khera after he allegedly referred to the PM as “Narendra Gautam Das Modi” while seeking a probe by a Joint Parliamentary Committee (JPC) into a report of US-based Hindenburg Research on the Gautam Adani-led Adani Group. The FIR was lodged in Uttar Pradesh and Assam under Sections 153A (promoting religious enmity), 295A (outraging religious feelings), 500 (defamation), 504 (intention to promote breach of peace), 505 (statements amounting to public mischief), and 120B (criminal conspiracy) of the IPC.

Rule of law

While it would be difficult to ascertain whether the allegation is true or not, what is clear is that people in power are extremely sensitive to any statement that may go against the Prime Minister and other higher-ups in the government. Instead, what should be a matter of concern is whether the ‘rule of law’ is being followed or not, which impacts the working of the Constitution.

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Rajya Sabha MP Abhishek Manu Singhvi filed a plea on behalf of Khera in the Supreme Court and succeeded in securing expeditious justice. The CJI made an emphatic, though delicate order, saying, “We have protected you (Khera), but there has to be some level of discourse…” The sentence was left incomplete.

Khera, who heads the media and publicity department of the Congress, had made the statement at a press conference in Mumbai on February 17. Three days later, a complaint was lodged at the Hazratganj Police Station in Lucknow, which was converted into an FIR (No. 65/2023) for offences punishable under Sections 153A, 500, 504 and 505(2) of the IPC.

The petitioner stated that another FIR (No. 86/2023) was registered in Varanasi on February 20 for offences punishable under Sections 153A, 295A and 505 of the IPC. On February 23, Khera was deplaned from a Raipur-bound Indigo flight in Delhi on the ground that he was to be arrested by the Assam police in connection with a case registered at Haflong police station.

Singhvi, who acted as the senior counsel for the petitioner, invoked Article 32 of the Constitution, seeking reliefs including: “(i) quashing of the complaints; (ii) in the alternative, transfer and clubbing of the FIRs at one jurisdiction; and (iii) restraint on all coercive steps and to provide security to the petitioner and his family”. The question before the SC was ‘unconditional apology’ tendered by Khera.

Clubbing of FIRs

Singhvi submitted that the “petitioner would not press the prayer for quashing of the FIRs” since he would be advised to pursue the remedies which are available to him in accordance with law before the appropriate High Court. However, the petition pressed for clubbing of the FIRs in one jurisdiction, as the “gravamen” of all the FIRs (lodged presently at Lucknow, Varanasi and Dima Hasao) is one and the same, namely, the press conference at which certain objectionable words were used.

Further, Singhvi stated that the petitioner has since clarified that the use of the language was inadvertent, though inappropriate, and that he would not stand by the use of such language. The petitioner tenders an “unconditional apology”, Singhvi added.

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In addition, he said: “Apart from the above submission, it has been urged that the words taken at their face value, as reflected in the FIRs, do not establish any offence punishable under the Sections of the IPC which have been invoked, including Sections 153A, 153B, 295, 500, 504 and 505 of IPC.” He also urged that recourse to the power of arrest under Section 41A Cr. PC was not warranted where the offence is punishable for a term not exceeding seven years.

Deliberate attempt?

Meanwhile, the CJI’s order mentioned Additional Solicitor General Aishwarya Bhati’s replay of the offending video with a contention that the expression which was used by the petitioner was not unintentional and, on the contrary, a deliberate attempt to denigrate a constitutional functionary.

Bhati pleaded before the SC that Khera should be given a transit bail and he may seek his remedies before that court. The most significant point is in Para 10 of the order that refers to the Arnab case.

It says, “We are inclined to entertain the petition confined to the issue as to whether the FIRs should be clubbed in one and the same jurisdiction. Such a course of action has been previously adopted by this Court in Arnab Ranjan Goswami v Union of India” ((2020) 14 SCC 12). In that case Arnab had gone to the court saying that a well-coordinated campaign was launched by the Congress, accusing him of offences allegedly committed under Sections 153, 153A, 153B, 295A, 298, 500, 504, 506, and 120B of the IPC.

Seeking action under Article 32, he sought protection of his fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution. The court ordered that Arnab “be shielded from coercion for three weeks from the date of the verdict”. Except for one FIR lodged in Nagpur and later transferred to Mumbai, the court halted all FIRs filed against Arnab. The court rejected all other identical FIRs filed against him in different states, with the exception of the one filed in Nagpur, which was transferred to Mumbai.

TT Antony Vs State of Kerala

The court mentioned TT Antony vs the State of Kerala ((2001)6 SCC 181) case, that dealt with the question of an individual being subjected to multiple proceedings for the same offence in various courts.

The court determined that when a countercase is filed conducting a new investigation based on a related cognizable offence would be an “abuse of the statutory power of investigation…” The SC held that rights under Article 19(1)(a), which promises freedom of speech and expression, cannot be used to tarnish the religious sentiments of the people.

The court refused to dismiss the FIR filed against Arnab for allegedly hurting religious sentiments on his channel Republic TV during a show by making disparaging comments about a religious community. Reasonable restrictions have been imposed under Article 19(2) of the Constitution with the intent to protect the sovereignty and integrity of the country.

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It was concluded that “any denunciation or constraint imposed on an individual’s major right must be reasonable and not subjective, according to the Maneka Gandhi case” and “Article 19(2) serves as a check on Article 19 (1)(a) of the Indian Constitution”. It sets reasonable limitations on the exercise of fundamental rights on the basis of the country’s sovereignty and integrity, the state’s security, friendly relations with other states, public order, decency or morality, or contempt of court, defamation, or incitement to an offence.

However, only malicious and deliberate acts should be punishable, rather than casual observations made without malicious intent. The point to be emphasised is that, had there been no opposition or very timely intervention of counsel like Singhvi, and above all, the sufficiently courageous judge, the rule of law would have been lost.

(Madabhushi Sridhar Acharyulu is former Central Information Commissioner, Professor & Dean, School of Law, Mahindra University Hyderabad)