The Supreme Court of India on 14 June, refused to stay the investigation based on an FIR against journalist Vinod Dua filed in Shimla, Himachal Pradesh. In the FIR, Dua has been charged with sedition for a his YouTube broadcast in March on the investigation into the North East Delhi violence in February.
In its order, the SC, however, granted Dua protection from arrest till the next hearing on 6 July. The court also instructed Dua to co-operate with the investigation of the Himachal Pradesh Police which was granted permission to interrogate him via video-conferencing or at his residence in Delhi, keeping the COVID-19 scenario and social distancing in mind.
The Quint spoke to legal experts Alok Prasanna, Swati Malik, Nikhil Mehra and Avi Singh to understand what the court's refusal to stay the investigation means for Dua, and the larger question of freedom of speech in the country.
'Frivolous FIR'
"The more important issue is that the Himachal Pradesh Police, unlike many other police departments in this country, are simply filing an FIR on the basis of a complaint. They are not applying their mind to see if an offence is actually made out," said legal expert Alok Prasanna.
"The problem underlying all of this is that there are no consequences for the police for having done something like this", he added.
Lawyer Swati Malik said that the least that the Supreme Court could have done was to stay the investigation till the next date of hearing i.e. 6 July.
"The least that the Supreme Court could have done was to stay the investigation till the next date, till the state files a status report. It could have waited. This really isn’t a relief for Vinod Dua. Except that he can’t get arrested, which in COVID times, we anyway wouldn't have expected the Himachal Pradesh Police to come arrest him", said Malik.
Lawyer Nikhil Mehra, however, said that the FIR was interesting in the sense that the police was at least "trying" to build a case of sedition.
"What is interesting about this FIR is that it is very different from other sedition FIRs in that it seems to draw a link between the spreading of what they call "fake news" with the raising of sentiments against the existing government with the view to topple it. What they are essentially saying is that some kind of fake news is being spread by Mr Dua where the intention is that the listeners of that news would be instigated to topple the government as it stands. I find this interesting because this is the first time I’ve seen an FIR related to fake news leading to some other effect beside the fraud in the fake news itself," said Mehra.
Similarities & Differences Between The Dua Case And The Case Against Arnab Goswami
The court's further action on the case must also be in the context of the judgment passed by the same apex court in the Arnab Goswami case, says lawyer Avi Singh.
"The honorable Supreme Court, also in Arnab Goswami’s case, had said that there must be also balance between the need to investigate an FIR and the need for the law to protect journalists’ freedom in the ambit of article 19(1A) of the Constitution of India. It is good to recall Mr (Harish) Salve’s pleas in that case that FIRs are being launched to stifle the free expression of views by an independent journalist. So vis-a-vis considered, in July, when the next hearing in the Dua case is scheduled for, if all the pleadings have been completed, we must look upon it in that context," said Singh.
"Of course the interim protection given to Mr Dua was different from the interim protection given to Mr Goswami. In essence, in Goswami's case. one FIR had been allowed to continue and the others had been stayed. Here, for the FIR in question, the investigation has been allowed to continue but the arrest has been stayed and he’s been given further concession of being interviewed at home or by video-conference", he added.
"The difference between those two FIRs is that Arnab’s FIR was under the provisions for invoking communal disharmony because he had blamed a particular community. He had named the community in his show. And he had provoked communalism by naming the community", opined Swati Malik.
"In Vinod Dua’s case, he has only talked against the government and how the government was busy preparing for the foreign delegation or foreign visitors, instead of taking care of COVID or the migrant workers," she added.
'Questioning At Home A Concession Dua Asked For'
Reacting to the social media debate on whether it was correct for the Himachal Pradesh Police to be allowed into Dua's home, experts say that it was a "concession" by the court in COVID times, but a concession that Dua asked for. It was only so that Dua did not have to risk his health and travel to Himachal Pradesh for questioning.
"The court order is largely based on the concession made by the petitioner (Dua) himself, saying that he is ready and willing to participate in any investigation provided that its done from the comfort of his home and that he’s not asked to visit the police station. It is to be noted here that he is a senior citizen suffering from certain ailments and as per the government’s own directives, the Himachal Pradesh Police should not have asked him to come to the police station at all. To that extent the court has only affirmed what he had requested, which is that the police, if they have any questions about the FIR, approach him at home," said Alok Prasanna.
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