Can a journalist in a court of law make a submission in a case not involving the journalist? The unequivocal answer, according to the Madras High Court, is “yes” but only if called for by the court.
The controversy began in October 2018 when Tamil Nadu police filed a case under Section 124 of the Indian Penal Code against the bi-weekly Tamil magazine Nakkheeran.
The magazine, which built its reputation on the forest brigand Veerappan’s exploits, had carried articles about Tamil Nadu governor Banwarilal Purohit which, the police alleged, were intended to prevent him from exercising his “lawful power and duties”.
In other words: defamation.
But rather than suing the magazine under Section 499, Raj Bhavan used the menacing Section 124 of the IPC, which reads:
“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, [***] the Government established by law in [India], shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.“
Oddly, Purohit is himself a media baron. His family owns the Nagpur-based The Hitavada founded by Gopal Krishna Gokhale in 1911, and he is still listed as its editor-in-chief despite being governor.
Among the loaded stories Nakkheeran reported was Purohit’s alleged links with a jailed assistant professor accused of ‘luring’ four girl students into granting sexual favours to a “higher level officer” and an alleged visit made by him to a guest house of Madurai Kamaraj University, charges he denied.
The governor’s office described the stories as “yellow journalism“.
“It was indeed shocking to see a resurfacing of yellow journalism in an issue of the magazine Nakkheeran in late September,” a Raj Bhavan statement said.
“It can only be a deep sense of hatred towards goodness and truth that could have driven any journalist to have written the articles in the manner they appeared in the Nakkheeran.”
When the magazine’s editor R. Rajagopal, also known as Nakkeeran Gopal, was arrested and produced before the Metropolitan Magistrate in October 2018, the judge declined to send him to remand.
In doing so, the Magistrate relied upon the submission of N. Ram, the former editor-in-chief of The Hindu and the chairman of The Hindu Group, who was present in court that day. Ram’s submissions were also recorded by the Magistrate in his order.
“Ram told the judge that if such an arrest was allowed, it would set a dangerous precedent and police all over India would resort to this. And no journalist had been arrested under this section,” reported The New Indian Express.
Conviction under Section 124A can result in imprisonment between three years and life.
After the rebuff, Tamil Nadu police appealed to the Madras High Court, questioning, among other things, the reliance on “rank outsider” N. Ram’s deposition by the lower court.
The special public prosecutor, appearing for the state, said that in hearing Ram:
“the learned Magistrate was swayed by extraneous considerations“
“N. Ram was a rank outsider and did not have the locus standi to make his submission before the court “
The lawyers for Nakkheeran Gopal, however, argued that Ram was merely standing in the midst of advocates and others who had gathered in the court at the time of the hearing. He did not make any submission on his own.
Citing the judgement of the Supreme Court in Harishankar Rastogi vs Girdhari Sharma, 1978, Gopal’s lawyers argued:
“Inviting Ram and seeking his opinion is very much within the powers of the court and there is no bar in law to seek such an opinion.”
Madras HC sought a report from the Metropolitan Magistrate on his decision to seek N. Ram’s submission.
The Magistrate admitted that he had himself called upon Ram and invited his opinion as to whether the provision under Section 124 of IPC had been previously applied against a media house for publishing an article.
“Only after this query was put to N. Ram he had given his opinion about the same and he had also stated that such registration of FIR will directly affect and interfere with the freedom of the press,” the magistrate averred.
Provisions under Section 32 of the Advocates Act, 1961 and Rule 69 of the Criminal Rules of practice also entitle a judge to call for such opinion.
Section 32 says:
“Any court, authority or person may permit any person, not enrolled as an advocate under this Act to appear before it or him in any particular case.”
It is clear from this provision, ruled Madras HC on 7 January 2019, that the Court as the power to permit any person not enrolled as an advocate to put forth his submissions before a Court with prior permission of the Court, whenever called for by the Court.
“In this case, the Court was dealing with a very peculiar case where a publication has been made a subject matter of an offence under Section 124 of IPC, which is unprecedented and which has come up for the first time before a Court.
“Therefore, the learned Magistrate wanted to get the views of a reputed and senior journalist as to whether there were any such instances in the past. This query was answered by N. Ram by touching upon the freedom of press.
“This Court does not find anything wrong with the procedure adopted by the magistrate and the submissions made by N. Ram in this case have not in any way affected the decision taken by the learned magistrate since N. Ram has not made any submissions on the merits of the case,” the High Court ruled.
The Metropolitan Magistrate’s refusal to remand Gopal on the basis of the material placed before the court was also emphatically upheld by the Madras High Court.
This was the second time the governor had rubbed the Tamil media on the wrong side.
In April 2018, Purohit had been accused by Lakshmi Subramanian, a journalist of The Week magazine of “patronisingly” patting her cheek in response to a question, without her consent, at a press conference on Nirmala Devi, the assistant professor in question.
Purohit, 78, later apologised to the journalist.
“I considered (your) question to be a good one. Therefore, as an act of appreciation for the question that you had posed, I gave a pat on your cheek considering you to be like my granddaughter,” he wrote.
Purohit added that it was “done with affection and to express appreciation for your performance as a journalist, since I was also a member of that profession for about 40 years.”
Among those who rushed to the governor’s defence was the auditor of the satirical magazine Tughlaq, S. Gurumurthy.
‘The Hitavada’ of course did not report the story or its aftermath in April.
Photograph: By special arrangement!