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October 11, 2018
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Why in news?

A Tamil magazine editor was recently arrested under Section 124 of the IPC.

What was the controversy?

  • The arrest was based on a published report about Governor and his Secretary holding several meetings with an arrested assistant professor few months ago.
  • The magazine based its report on this issue, not on a sting operation, but on police evidence.
  • However, the Tamil Nadu Governor’s office had complained to the police, seeking to book the editor under Section 124 of IPC.
  • They cited that the offending articles express an “intention of inducing or compelling the Governor to refrain from exercising his lawful powers”.
  • Section 124 applies to assaulting high constitutional functionaries such as the President and the Governor with “an intent to compel or restrain the use of any lawful power”.
  • It was intended to cover cases where these functionaries are prevented from exercising their power through criminal force, attempts to overawe, or wrongful restraint.
  • The offence shall be punished with 7 years imprisonment and shall also be liable to fine.
  • It is a Non-Bailable, Cognizable offence and not compoundable.

What was the wrongdoing?

  • The Governor had also invoked Section 124 previously when a state party staged black flag demonstrations at sites where he held meetings with district-level officials.
  • It is unlikely that a black flag demonstration can attempt to “overawe” the Governor in a manner that restrains his office from exercising power.
  • Overawe would suggest the commission of an offence that poses a real danger to the exercise of authority.
  • Hence, to extend the meaning of “overawe” to a mere protest or a work of journalism amounts to misuse of the intended provisions.
  • In the recent case, the Metropolitan Magistrate in Chennai realising the absurdity of the prosecution’s case, declined to jail the accused editor.

What are the precedences in this regard?

  • A well-defined law has been laid down by the Supreme Court’s 1994 judgement in R Rajagopal vs State of Tamil Nadu, popularly known as the Auto Shankar case.
  • According to that, public figures have to satisfy a very high threshold to claim privacy and the right to reputation for demanding prior restraint of a publication.
  • Therefore, it would be very difficult for the governor in this case to demand prior restraint of the news article.
  • Also, prior restraint has a chilling effect on press freedom, violating Articles 19(1) & 361A.
  • In contrast, in the Subramanian Swamy case, the apex court stated that a person’s right to reputation takes precedence over the media’s right to report.
  • Countries like US have recognised that the complainant of prior restraint 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.

What should have been done?

  • In a period of five years between 2011 and 2016, over 200 criminal defamation suits against a vast swathe of journalists and media houses for their criticism of governmental actions and policies.
  • The governor could have used other forms of legal redress available to him rather than going for this provision.
  • By citing them to seek registration of a Section 124 case against the magazine’s Editor, journalists and employees, the Governor’s office has only turned the spotlight on itself unnecessarily.
  • Hence, the governor could do himself a favour by withdrawing the complaint, since it is unlikely the TN police will take such a decision on its own.

 

Source: The Hindu

Quick Facts

Categories of Offences

  • If an offence is cognizable, police has the authority to arrest the accused without a warrant and to start an investigation with or without the permission of a court.
  • Otherwise police does not have the authority to arrest the accused without a warrant and an investigation cannot be initiated without a court order.
  • If an offence is bailable, police has the authority to release the accused on bail on getting the defined surety amount along with a duly filled bail bond at the concerned police station.
  • Otherwise arrested person has to apply for bail before a magistrate or court
  • If an offence is compoundable, a compromise can be done between the accused and the victim, and a trial can be avoided.
  • Otherwise, no compromise is allowed between the accused and the victim except under certain situations, where the High Court or the Supreme Court have the authority for quashing a matter.
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