NewsClick FIR casts farmer protests as terror and fails to back sweeping charges with evidence

NewsClick founder and editor-in-chief Prabir Purkayastha has been accused of several sweeping allegations in a first information report filed against him on August 17. He was arrested on Tuesday along with NewsClick’s human resources head, Amit Chakraborty, after unprecedented raids by the Delhi Police on over 40 staffers and contributors of the digital news organisation.

The first information report has invoked several sections of India’s stringent anti-terror law, the Unlawful Activities (Prevention) Act. These include Sections 13 (punishment for unlawful activities), 16 (punishment for terrorist act), 17 (punishment for raising funds for terrorist act), 18 (punishment for conspiracy etc) and 22C (punishment for offences by companies, societies or trusts).

Other offences made out in the FIR: Sections 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence) and 120B (punishment of criminal conspiracy) of the Indian Penal Code.

A Scroll examination of these sections reveals their disproportionality in relation to the ambit of actions NewsClick is alleged to have undertaken in the first information report or could realistically have taken.

Unlawful activities

The Unlawful Activities (Prevention) Act is a stringent law that makes it onerous for an accused person to secure bail. Its provisions have been criticised for being vague and sweeping, opening the doors for their misuse.

A case under Sections 13 and 22C of the Unlawful Activities (Prevention) Act is predicated on NewsClick having committed an unlawful activity. “Unlawful activities” are defined in Section 2(1)(o) of the act as any action which falls within one of the following three categories:

1. Something intended to bring about the cession of a part of Indian territory, or the secession of any territory from India,
2. Something that questions or disrupts the sovereignty or territorial integrity of India, and  
3. Something that causes, or is intended to cause, “disaffection against India”.

The first information report refers to email exchanges involving an American businessman and social activist Neville Roy Singham and Purkayastha that establish a “conspiracy to peddle a narrative, both globally and domestically, that Kashmir and Arunachal Pradesh are disputed territories”. It also refers to their “attempts to tinker with the northern borders of India and to show Kashmir and Arunachal Pradesh as not parts of India in maps” as acts undermining the unity and territorial integrity of India.

There is no reference in the first information report to any specific content by NewsClick that doesn’t show either Kashmir or Arunachal Pradesh as part of India, though.

The Wire has reported that these purported email exchanges were seemingly leaked to some sections of the media. However, none of these reports referred to any map-related email that Purkayastha might have sent.

The first information report also states that “large amount of funds were routed from China in circuitous and camouflaged manner and paid news were intentionally peddled criticising domestic policies, development projects of India and promoting, projecting and defending policies and programmes of Chinese government” to “disrupt sovereignty of India and to cause disaffection against India”. Again, no specific content from NewsClick promoting Chinese programmes and policies has been cited in the FIR.

The term “disaffection” has not been defined anywhere in the Unlawful Activities (Prevention) Act. The literal meaning of the term has a wide span, ranging from a state of dissatisfaction or discontent to alienation and estrangement. Civil and democratic rights organisations have previously pointed out that the vague nature of this term renders the provision “arbitrary, unfair and undemocratic” since the Indian state uses it only to quell critical views and negate the freedom of expression of citizens.

Merely publishing content critical of the domestic policies and development projects by the Union government or any state government, as NewsClick is alleged to have done, does not qualify as “disaffection” under the act, or as an offence under any law. Such a legal position would be antithetical to press freedom in the country.

A petition challenging the constitutional validity of the act has been pending before the Supreme Court since September last year. The plea, filed by the Foundation of Media Professionals, made the same argument among its claims. It said: “The definition of an ‘unlawful activity’ includes ‘disaffection against India’ which does not have a defined meaning under the Act and can be used to target anyone against whom the government harbours a grudge to someone who may have a contrary point of view.”

Terrorist Act

A case under Sections 16, 17, 18 and 22C is predicated on NewsClick having committed a “terrorist act”. “Terrorist act” is defined in Section 15 of UAPA as an action intended to or likely to threaten the unity, integrity, security, economic security or sovereignty of India or “strike terror” in people. This must be done in one of the following ways:

1. Using firearms or weapons to kill persons or damage property,  
2. Disrupting essential services or supplies in India or a foreign country,  
3. Producing, circulating or supplying counterfeit Indian currency,
4. Using criminal force to kill or attempt to kill a public functionary, and
5. Detaining, kidnapping or abducting any person in order to make any government or organisation in India or elsewhere do or abstain from doing something.  

The first information report justifies this accusation by stating that the accused persons “conspired to disrupt supplies and services essential to the life of community in India and abet damage and destruction of property by protraction of farmers’ protest through... illegal foreign funding”. It further alleges that the farmers’ agitation was funded and supported by NewsClick to cause losses worth several hundred crore rupees to the Indian economy and create internal law and order problems.

Painting the farmers’ protest as an act of terror is an inexplicable allegation given Prime Minister Modi has himself responded to the movement by apologising on television and repealing the farm laws.

Even if it were, for sake of argument, true that NewsClick, which covered the protests, was actually funding them, that in itself is not unlawful. The first information justifies the invocation of UAPA’s provisions relating to terrorist acts by framing the farmers’ agitation as a terrorist act that was meant to disrupt essential services, cause the destruction of property, hurt the Indian economy and create law and order problems. This is similar to the narrative regarding the protests that been pushed by Bharatiya Janata Party members.

By that logic, everyone who participated in the protests is liable to be booked under terror-related charges. However, nothing of the sort has happened, even as the protests were openly organised by large farmer unions. It is, therefore, unclear how NewsClick could be charged in this manner.

Promoting enmity between different groups

Section 153A of the Indian Penal Code penalises the commission of an act that fits one of the following four categories:

1. It promotes “disharmony or feelings of enmity, hatred or ill-will” between different social groups, or  
2. It is “prejudicial to the maintenance of harmony” between different social groups and disturbs or is likely to disturb “public tranquillity”, or  
3. It relates to the organisation of or participation in the use of criminal force or violence against any social group.    

The first information report justifies this provision by merely asserting that the accused persons “have been creating disunity and disharmony among different group/classes of people as part of a larger criminal conspiracy” by inciting disaffection among people, especially farmers, towards the Union government. There is no claim or imputation of any specific social group being targeted or antagonised, which is what Section 153A penalises.

The police and the government have neither officially nor unofficially pointed out any content by NewsClick that promotes ill-will or enmity among different social groups.

Other allegations in first information report

The first information report contains several other allegations that are either not covered by the legal provisions invoked or are not unlawful under any law.

It states on multiple occasions that NewsClick’s holding company received crores of rupees through illegal means from foreign sources and that for this purpose, Chinese telecom companies such as Xiaomi and Vivo “incorporated thousands of shell companies in India”, in violation of the Prevention of Money Laundering Act and the Foreign Exchange Management Act.

However, the first information report is not registered under any sections of either of these statutes.

NewsClick has already been under investigation in a case of alleged unlawful foreign funding by the Enforcement Directorate since February 2021. The case is premised on the allegation that NewsClick received foreign funding of Rs 9.59 crore from an American company in 2018-1’9, in violation of the law capping foreign direct investment in digital news organisations.

However, the Delhi High Court had in June 2021 granted interim protection from any adverse legal action to NewsClick and Purkayastha.

The first information report alleges, among other things, that the accused persons spread false narratives to discredit the Union government’s efforts to contain the Covid-19 pandemic and attempted to “sabotage the electoral process” during the 2019 Lok Sabha elections. These are broad and open-ended statements and no material is cited to validate these assertions. However, even if these allegations were true, they are not covered by the legal provisions under which the first information report has been registered. The relevant penal provisions that might cover such offences are not invoked.

The first information report also alleges that the accused “campaign[ed] for and put up spirited defense of legal cases” against Chinese companies “in return for benefits”. Even if this were true, it is lawful to provide legal counsel to someone in exchange for compensation. This is the very basis of the legal profession.

NewsClick has denied the allegations in the first information report through a public statement. It has said that it “has never committed or sought to encourage violence, secession or any illegal act in any manner whatsoever. A perusal of NewsClick’s coverage, which is freely available online, should be sufficient to indicate the veracity of NewsClick’s claims”.

Purkayastha and Chakraborty have already moved the Delhi High Court seeking the quashing of the first information report, challenging their arrest and seeking interim relief from policy custody.