Nakkheeran Gopal arrest: Using obscure law to stifle press freedom is new strategy

While TN is not new to the harassment of journalists, the use of obscure law such as Section 124 forms part of the state's new modus operandi to target the media.

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On the evening of October 9, hours after veteran journalist Nakkheeran Gopal was picked up by the Chennai police, Magistrate Gopinath of the Egmore 13th Metropolitan Magistrate’s Court rejected the police department’s plea to keep Gopal in custody. While this came as a relief, Gopal’s travails have not ended, for now he has to fight a protracted legal battle against the powerful Governor’s office to get the case against him quashed.

However, Tuesday’s triumph should not distract one from sensing alarm and guarding against a new trend of harassing and silencing journalists. What is this new modus operandi?

It is about those with political power (mis)using obscure provisions of the law to file complaints, and the police immediately arresting the journalist in question. The provision invoked in Gopal’s case is Section 124 of the Indian Penal Code, which makes it a cognizable, non-bailable offence for “assaulting the President or Governor with intent to compel or restrain exercise of any lawful power”. In the event of a conviction, the offence carries a seven-year jail term.

What is Gopal’s purported offence?

In April, his magazine Nakkheeran published a report about Governor Banwarilal Purohit and his Secretary R Rajagopal holding several meetings with Nirmala Devi— an assistant professor of the Devanga Arts College in Aruppukottai, who was arrested in April on the basis of an audio clip in which she is heard asking female students to extend sexual favours to higher officials, in return for marks and money. Nirmala Devi is presently lodged in jail, and it is significant to note that Nakkheeran based its report not on a sting operation, but on police evidence.

Obscure Law, Dangerous Methods

Even a cursory search on the Internet would show that Section 124 has hardly been invoked since Independence, and one would be hard-pressed to find any High Court or Supreme Court decision in which the provision has been adjudicated upon. But that doesn’t mean that the Section doesn’t have teeth— the police can carry out an arrest immediately after an FIR has been lodged, and the magistrate can decide whether to grant bail or allow remand for the accused person.

It is widely-known that the lower magistracy acts with remarkable alacrity when cases under such provisions are lodged, especially by influential persons. And such alacrity is often coupled with a lack of judicious sense and reasoning. It was good that Magistrate Gopinath noticed that Section 124 uses the term ‘assault’. This means that there has to be an exertion of physical force in preventing the Governor from carrying out his legal duties which was absent in the present case. But how many magistrates across the country can be expected to have this sense?

It is also noteworthy that Governor Purohit’s complaint and the police department’s charges were not only against Gopal, but also nearly the entire working staff of the magazine— 14 reporters, 10 administrative staff, in addition to its Editor-in-Charge Kovai Lenin, and Chief Deputy Editor Aaraavayal.

A Defamation Suit? Just as Bad

Soon after Gopal’s arrest, some commentators on social media said that if Governor Purohit was indeed so incensed by what he deems a slanderous report, he should have filed a suit of criminal defamation. But that method is also severely problematic for various reasons. In fact, the advocating of such a stance, especially by those who care about journalistic freedom, is self-defeating.

Firstly, public figures have to satisfy a very high threshold to claim privacy and the right to reputation for demanding prior restraint of a publication, as per the law laid down by the Supreme Court’s 1994 judgement in R Rajagopal vs State of Tamil Nadu, popularly known as the Auto Shankar case. Therefore, it would be very difficult for Purohit to demand prior restraint of the news article. And such difficulty is key, since prior restraint has an undeniably chilling effect on press freedom.

In recent times, there has been an increasing trend of powerful politicians and business houses trying to shut out unflattering reportage by demanding prior restraint or moving court. The instances of Hindi daily Dainik Bhaskar trying to prevent the airing of a Cobrapost sting operation revealing how the paper had tried to manipulate news, or BJP President Amit Shah’s son Jay Shah’s attempt to muzzle news and opinion website The Wire’s reportage on his dubious business deals, are the most recent ones.

Secondly, in the United States and in other countries, courts have recognised the standard laid down by the Supreme Court of the United States in the case of New York Times v Sullivan— that the complainant must prove the presence of actual malice in order to proceed with a defamation suit against a media house. But Indian courts are yet to adopt this standard, and its absence puts an onerous burden on media houses.

Third, a closer examination of records reveals how criminal defamation has been used against journalists by successive governments in Tamil Nadu.

According to a report published on this website in 2015, in one year alone, the Tamil Nadu government had filed 70 criminal defamation suits against media houses which were critical of its policies, and did not spare even newsreaders. In a period of five years, between 2011 and 2016, former Chief Minister Jayalalitha had filed over 200 criminal defamation suits against a vast swathe of journalists and media houses for their criticism of her actions and policies, according to an affidavit the government submitted before the Supreme Court.

Finally, the Supreme Court’s 2016 verdict in the case of Subramanian Swamy, must serve as a reminder of the serious, chilling effect of the criminal defamation law. As editors had feared, the apex court upheld the constitutionality of the law by reasoning that a person’s right to reputation takes precedence over the media’s right to report.

Thus, those appalled at Governor Purohit’s actions should— while being critical of what he has done— be cautious about suggesting another action that could well have more deleterious effects in the near and distant future of journalism and press freedom.