COVID is NOT an Excuse for Arrest of Andamans, Coimbatore Journos

Zubair Ahmed and Andrew Sam Pandian were arrested by police using pandemic-related provisions of law.

The police have arrested SimpliCity founder Andrew Sam in Coimbatore and Andamans journalist Zubair Ahmed using coronavirus-related provisions.

(Photo: Shruti Mathur/The Quint)

On Monday, 27 April, Zubair Ahmed, a journalist in the Andaman and Nicobar Islands, was arrested by the police for a tweet in which he questioned why the authorities had allegedly asked a family to home-quarantine, based merely on a phone call between them and someone who had tested positive for the novel coronavirus.

Four days before that, on 23 April, it was Andrew Sam Raja Pandian, the founder of Coimbatore-based web portal SimpliCity, who was arrested by the police for reports on his website about a shortage of food for student doctors working at the Coimbatore Medical College and Hospital, as well as alleged siphoning of rations and provisions meant for the poor.

In neither of the two cases have the local police expressly shown that what the journalists said was untrue. Instead, in what could become a dangerous trend, they are seeking to use legal provisions relating to the COVID-19 crisis to target these journalists – only to stop them from asking uncomfortable questions.

Questions = Spreading an Infectious Disease?

The FIR against Zubair Ahmed in the Andaman and Nicobar Islands is nothing short of astonishing.

The police booked him for posting a tweet on Monday, 27 April, in which he asked “Can someone explain why families are placed under home quarantine for speaking over phone with Covid patients?” Ahmed tagged the islands’ administration and the media cell of the Lieutenant Governor in the tweet.

This tweet followed another posted a day earlier by him suggesting that those who were in COVID-19 quarantine should not contact acquaintances by phone as this was leading to them being traced and quarantined as well.

The basis for these tweets were Ahmed’s own inquiries, as well as an article in the Andaman Chronicle on 26 April, which said that four members of a family in Haddo in the Andamans were “forced to remain in home quarantine after one family member called up his relative (who had tested corona positive) to know about his wellbeing.”

The DGP of the Andaman and Nicobar Islands, Dependra Pathak, told the Indian Express that the reason for the arrest was that Ahmed “started tweeting that the administration is doing (things) wrong” and that he had “urged people not to cooperate with the administration at a time when we are all battling the pandemic.”

A statement by the Andaman and Nicobar Police said action had been taken against Ahmed for “posting the inciting, false and instigating tweet to disrupt public harmony, violating government orders and to create panic among the public...”

None of these depictions of Ahmed’s tweet appear to be correct, especially since the police have not denied the report in the Andaman Chronicle, only arguing that one of the ways in which they identify possible coronavirus patients is by evaluating contacts through phone calls.

Zubair Ahmed(Photo courtesy Twitter)

Interestingly, no action has been taken against the Andaman Chronicle or its editor, Denis Giles, who filed the report about the family in Haddo. Giles went to the Port Blair court on Tuesday for Ahmed’s bail hearing, and supported him in the proceedings.

The charges against Ahmed are quite evidently overkill. If his tweet contained any falsehood, as the police claim, a case could be filed against him under Section 54 of the Disaster Management Act (DM Act). However, instead of just citing this provision, the police have alleged that his statements also violate the following legal sections:

• Section 51, Disaster Management Act: Disobedience of an instruction of a public official for dealing with a disaster, or obstructing their work.
• Section 188, IPC: Disobedience of an order by a public servant.
• Section 269, IPC: Negligent act likely to spread infection of disease dangerous to life.
• Section 505(1), IPC: Circulating a statement or rumour likely to lead to public mischief.

Unless and until the Andaman Chronicle report is demonstrated to be untrue, none of these charges could apply. And even if that were proved now, at best this could amount to an offence under Section 54 of the DM Act – which punishes spreading false news or alarms about a disaster.

There is no disobedience of an order of a public servant, nor does his question or his previous statement, help in the spread of the virus, as he is not inciting people to not cooperate with tracing attempts.

Even Section 505, which seems like it could apply, has a strong intent requirement, according to previous judgments of the Supreme Court of India, meaning if he did it in good faith, based on information in the public domain, he cannot be found guilty of an offence. This is all the more important as Section 505 is a serious offence in law, with bail only possible after judicial scrutiny.

The Port Blair court has thankfully granted Ahmed bail, but the police seem intent on prosecuting him.

Suppress Truth so That Doctors Don’t Turn Against Govt?

The case against SimpliCity’s Andrew Sam is even more Kafka-esque. Because of the two articles posted on his portal, Sam has been booked by the Coimbatore police under Sections 188 and 505(1) of the IPC, like Ahmed, and also under Section 3 of the Epidemic Diseases Act 1897.

Once again, the charges under Section 188 of the IPC make no sense whatsoever, as there are no orders in place which prohibit the publishing of any articles.

The usage of Section 3 of the Epidemic Diseases Act also does not subscribe to any logic, as while the Act provides state governments with wide powers to deal with an epidemic, they do not automatically create any restrictions on the publication of any articles by the media.

Andrew Sam Raja Pandian(Photo courtesy The News Minute)

The rationale behind the complaint, which was filed by the Assistant Commissioner of the Coimbatore municipal corporation, was that the news reports about food shortages for doctors and PDS theft could “provoke” healthcare professionals and PDS employees against the government, and therefore “derail efforts to fight the coronavirus.”

While opposing Sam’s bail plea, the police claimed he “published the false story with a malafide intention to create fear in public, he published the false news with a intention to create a law and order problem”.

If this is so, it is strange that Section 54 of the Disaster Management Act, which squarely applies to spreading such false news, has not been invoked in the FIR. Instead, Section 505(1) has been, perhaps because it requires a judge to decide if the accused can get bail, unlike the DM Act provision, which is automatically bailable.

As mentioned earlier, Section 505(1) has a strong intent requirement – for someone to be guilty of an offence under it, it has to be shown that they had intent to cause fear or alarm to the public “whereby any person may be induced to commit an offence against the State or against the public tranquility”. How such an intent can possibly be proved here, is beyond belief.

• Regarding the first article, on lack of food for student doctors at CMCH, these doctors have written a petition to the Dean, and the Health Secretary of Tamil Nadu has publicly responded to it.
• With regard to the second, on siphoning of PDS rations, the portal’s article has several testimonies from named complainants, and the District Collector for the area has ordered a probe into the complaints. This means the police’s claims of falsehoods and malafide intentions are quite evidently baseless.

Again, thankfully, the Coimbatore court has not fallen for this charade, and granted Sam bail on 28 April.

This Must Not be Allowed to Become a Trend

The fact that the courts have stepped up and thwarted these attempts to silence these journalists should not take away from the danger that these arrests have revealed.

In the midst of the pandemic, the police now have excuses to use extremely powerful laws and provisions that were previously not available to them, to try to silence journalists who are asking tough questions. These two cases show how the police are more than willing to pull out their shiny new toys – the Disaster Management Act and the Epidemic Diseases Act – and flash them around without really understanding what they allow them to do. Not to mention their slapdash use of the IPC as always.

Many will be willing to just accept the authorities’ claims that it is necessary to use these pandemic-related powers, even against journalists, because of the times we live in, and police and governments will be tempted to use them because of the licence this affords them.

The danger of this cannot be overstated – from the Centre’s attempts to restrict the media under the pretext of the coronavirus in the Supreme Court, to antagonism from the Health Ministry and ICMR over news reports that have questioned the public line, it is clear journalists in more than these two areas are under the scanner.

It is vital that the possibility of this becoming a trend is nipped in the bud, as a robust media is a crucial tool to ensure government accountability even – scratch that, especially – at this time of crisis.

The right to freedom of speech, and therefore the right to a free press, has not been suspended just because there is a pandemic – this cannot happen unless the Centre declares an Emergency. In a time when India’s ranking on the Press Freedom Index has slipped two further places to 142 out of 180 countries, we need to be careful not to let this happen by proxy.