Is SC Ignoring its Own Orders to Deny Protection to Tandav Makers?

In both Arnab Goswami and Amish Devgan cases, courts had granted interim protection because of multiplicity of FIRs.

Did the Supreme Court of India ignore its own recent precedents, when denying protection from arrest to people involved in Amazon web-series Tandav?

On 24 April 2020, Republic TV’s Arnab Goswami was granted interim protection from arrest by the Supreme Court of India in connection with the multiple FIRs registered against him across the country for his show on the Palghar lynchings.

The apex court stayed all the FIRs except one, and transferred that one to Mumbai, so as to ensure that the investigation could continue, without prejudicing Goswami’s rights. A more detailed judgment followed in May 2020 confirming this decision and setting out even more reasons in law for doing the same, and extending the protection from arrest.

Two months later, the Supreme Court offered similar protection to News18’s Amish Devgan in the multiple FIRs filed against him for an allegedly inflammatory remark about Sufi saint Khwaja Moinuddin Chishti.

In December 2020, the court refused to quash the FIRs, but clubbed the seven FIRs against him in different states, and transferred them to Ajmer, even as the protection from arrest for him continued.

There was a clear logic and line of reasoning adopted by the court in those cases. If there is a multiplicity of FIRs for the same issue against someone, particularly where the right of freedom of speech is involved, give them protection from arrest for some time till they can approach relevant courts and get bail/anticipatory bail, and also club the FIRs together to ensure they aren’t having to run from state to state.

And yet, on 27 January 2021, faced with a very similar request from producers and actors involved in the Amazon web series Tandav – accused of hurting religious sentiments – the apex court refused point-blank to either club the multiple FIRs against them in various states, or grant any protection from arrest to the petitioners.

Now, one could well say that the court could have had good reasons to treat this case differently. That there were distinguishing factors, which meant that the detailed reasoning adopted for providing those interim reliefs in the other cases.

Unfortunately, the order in the Tandav case includes no reasons whatsoever for why the judges refused this relief, even though the lawyers for the petitioners specifically raised the examples of both Goswami’s and Devgan’s case.

Which means there are serious questions to be asked about why there is no consistency from the highest court in the land when it comes to similar cases, and why the reasoning adopted to protect Goswami and Devgan is not being applied for protection of others.

Do We Have Any Reasons Whatsoever for Refusal of Relief in the Tandav Case?

As mentioned, the order by Justices Ashok Bhushan, MR Shah and Subhash Reddy dated 27 January does not include any reasons for why they haven’t granted interim reliefs to those involved with Tandav.

However, during the hearing on the day, the judges made oral comments along the following lines:

• Why didn’t the petitioners approach the relevant high courts for relief? Why come to the Supreme Court under Article 32 of the Constitution?
• The right to freedom of speech is not absolute. You cannot hurt religious sentiments of others, even an actor who is in character can be considered an accused for a line said by him.
• We are not inclined to grant interim protection from arrest.

Does this give us any clue as to why the Goswami and Devgan precedents do not apply? Not really, but it does help drive home just how problematic the court’s decision was.

The Article 32 Question

Some might argue that the Article 32 point was relevant here, especially given recent comments by Chief Justice of India SA Bobde about how the apex court was trying to discourage Article 32 petitions (ie., pleas to the Supreme Court to protect fundamental rights, which can also often be filed in the relevant high court under Article 226 instead).

However, while the court may have legitimate grounds to ask people to approach high courts first for reliefs, all citizens nonetheless have the right to approach the Supreme Court for protection of fundamental rights directly. And when the issue involves multiple states – FIRs have been filed in six states according to the lawyers for the Tandav makers – the Supreme Court is the only authority that can provide a broad relief.

Furthermore, in both Goswami and Devgan’s cases, the question of whether a direct Article 32 petition in the Supreme Court was the appropriate measure was considered. The benches there in both cases noted that there was an issue of freedom of speech involved, and this meant the court could not ignore the potential violation of rights.

While in those cases the court was dealing with journalists as accused persons, those questions of free speech nonetheless arise in this case as well. Take these lines from the Arnab Goswami judgment in May 2020, where Justice DY Chandrachud is considering the proportionality of the multiple FIRs:

“The manner in which the petitioner has been subjected to numerous FIRs in several states, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views.”  

Let’s be clear here — at no point in the court’s written order, is this Article 32 reasoning provided for refusing to grant relief.

For those who want to suggest that this special dispensation for Article 32 petitions should only lie for journalists, not people involved in the entertainment industy, they might want to go back to the Supreme Court’s decision in 2018 quashing multiple FIRs against Malayalam actress Priya Prakash Varrier. Varrier, who shot to fame for her wink in a video of a song, was also accused of hurting religious sentiments in multiple FIRs across the country.

She approached the court under Article 32 of the Constitution, given the multiplicity of FIRs, and the court first granted her interim protection from arrest, and then subsequently quashed the FIRs against her. Then CJI Dipak Misra headed the bench that day, along with Justices DY Chandrachud and AM Khanwilkar.

Interestingly, Justice Chandrachud was responsible for the Goswami order and Justice Khanwilkar for the Amish Devgan order.

What’s the Big Deal with Multiplicity of FIRs?

Think for a moment what it means to have FIRs against you in police stations across the country. This means that if you have to file bail/anticipatory bail applications you have to approach the local court where those police stations are based.

If you have to file quashing petitions, you have to approach high courts in each state where those police stations are based (sometimes different benches of those high courts, depending on where the police station falls).

You have to pay for multiple lawyers, multiple sets of paperwork, and go through the hassle of dealing with different languages and different places.

Now sure, if the allegations against you are for different crimes committed in different places, then, well, there’s nothing that can be done. But think about what it means for all these FIRs to relate to the same thing, the same set of accusations? You’re essentially being given the run-around for the same allegations, for which there is no logical reason.

An Issue Settled for 20 Years

This is hardly some difficult legal issue to comprehend, and this isn’t some newfangled idea that requires a re-examination of judicial precedent.

In 2001, the Supreme Court had to deal with this issue in the TT Antony vs State of Kerala case. The court held there that the very concept of an FIR – a First Information Report – meant that there could be no second FIR with regard to the same cognizable offence. This is because the investigation is supposed to cover not just the alleged cognizable offence reported in the FIR, but any other possible offences that arise from the same set of facts.

In fact, the court went on to say that any subsequent FIRs would be an abuse of the statutory power of investigation.

With regard to Tandav, after an initial FIR in Hazratganj, Lucknow, subsequent FIRs were filed in other police stations in Uttar Pradesh (including Greater Noida and Shahjahanapur), as well as police stations in other states like Maharashtra and Madhya Pradesh, all for the same or similar accusations.

According to the apex court’s reasoning in TT Antony – reaffirmed in multiple cases subsequently – none of these other FIRs should have been filed, and they are an unnecessary harassment of the accused. Now that they have been filed, there are two options — quash the subsequent FIRs or club them together.

It is understandable for the court to be wary of quashing even the subsequent FIRs as investigations may still be ongoing, or aspects of some of the FIRs might be slightly different. Clubbing the FIRs together resolves that issue, and ensures a fair approach. This is indeed the logic of the decisions in both Goswami and Devgan’s cases, which both cite the TT Antony judgment.

To not do so despite the clear trouble this puts the accused in, without any reasons, is nothing short of baffling. The court didn’t even need to agree to the petitioners’ request to club all cases and transfer them to Mumbai — following the decision in Devgan’s case, they could have transferred the cases to Lucknow, where the first FIR had been filed.

Interim Protection From Arrest Essential For Liberty

Given the Supreme Court has issued notice on the issue of clubbing FIRs despite refusing interim relief, it is nonetheless possible that the undue harassment will be dealt with when the court takes the matter up further.

However, the risk of having to run around different courts in the country to get bail/anticipatory bail continues during this time. It may well be that in the four weeks the court has given before its next hearing, the petitioners could face arrest in multiple jurisdictions while trying to file the numerous bail applications required. This would defeat the entire purpose of the court hearing the request for clubbing the FIRs.

This is indeed why Justice Chandrachud noted in his very first order on interim protection for Goswami in April 2020 that, “Ensuring that in order to enable the citizen to pursue legal remedies, a protection of personal liberty against coercive steps be granted for a limited duration in the meantime.”

The lawyers for the Tandav petitioners in the Supreme Court desperately tried to make this point but again, no reasoning was offered for why such interim protection was refused. The refusal of these reliefs runs the risk of leaving any eventual order of the Supreme Court on clubbing the FIRs entirely redundant, and ignores all the precedents set out by the court.

The big-picture problem here is that there appears to be no consistency to the apex court’s approach to cases of personal liberty and freedom of speech, with the extent of protection you get contingent on getting the right judge.

That is not how a constitutional court that is meant to protect fundamental rights is supposed to operate, that is not how a court of record is supposed to function, and does immense damage to the rule of law.