Is there a new pattern emerging in the way supposed media offences are dealt with? A pattern which has less to do with law and procedure and more to do with state discretion or intimidation? If you look back at the last four months, the facts are instructive.

Journalists are frequently in the news these days as offenders or as victims of persecution, such as Malini Subramanian. The provocation she gave in Jagdalpur, Chhattisgarh, was most likely journalistic in origin, though her work was nowhere mentioned. It was only dealt with outside the law – via an attack on her house by members of a group with links to the police.

Last week, it was the turn of Prabhat Singh in Jagdalpur, as he was picked up by plainclothesmen because a fellow journalist ratted on him for sending a WhatsApp message with an unflattering description of the inspector general of police of Bastar Range. In his case, the first information report invokes section 292A of the Indian Penal Code and section 67A of the Information Technology Act, meant for obscenity by electronic means, because the offended journalist and the police seem to have considered Singh’s description of the inspector general obscene. Section 67A is being used more frequently after the Supreme Court read down section 66A of the IT Act in 2015. For good measure, cases of cheating were also tacked on in the FIR against Singh. He has been sent to judicial remand.

Though it was a personal communication that got Singh into trouble, fellow journalists in Bastar say, the alacrity with which he was arrested signals to his writings and campaigning seeking protection for journalists.

No time for niceties

A week before Singh’s arrest in Chhattisgarh, the Union Ayush Ministry filed a police complaint against an independent journalist in Delhi, Pushp Sharma, for an article he wrote for Milli Gazette, the headline for which said that the ministry did not recruit Muslims as yoga teachers. No legal notice was sent to the publication as a first step – such niceties, it appears, are redundant these days. No, the reporter was picked up by the police, who landed up at his home at 6pm, three days after the story was published. Without any warrant.

An FIR was registered under the oft-used section 153A of the Indian Penal Code, which pertains to “promoting enmity between different groups on communal grounds” and does not require a warrant and is non-bailable.

The police took Sharma with them and released him late at night. Thereafter he was asked to report to the police station for three days in a row, kept till night each day and questioned, but not formally arrested. He has been issued a letter by the police asking him not to leave the city. He had been trying to get anticipatory bail from a district court, until last week’s holidays intervened.

Sharma cited in his article the Right to Information replies he had received, but the Ayush Ministry disputes the authenticity of the replies as well as the conclusion the article drew from them. His story was preceded by earlier stories on the same subject.

Arbitrary action

In February, the country heard of the airing of doctored videos by TV channels after an event at the Jawaharlal Nehru University. Tests ordered by the Delhi government proved the footage was tampered with. Yet, there have been no reports of the police landing up at TV newsrooms for questioning, no reports of the journalists who were involved in preparing these telecasts being picked up. Nobody in government evidently has been sufficiently troubled by the allegedly doctored videos to take any action, though the videos were initially seen as evidence to act against individuals for sedition.

In the third week of December 2015, a Dainik Bhaskar reporter in Dausa, Rajasthan, was arrested for an erroneous story regarding the flying of a Pakistani flag atop a house. It was not a Pakistani flag. The paper reported the offending story one day and corrected the “misreporting” in another story the next day. But despite that, the reporter Bhuvnesh Yadav was arrested. He ended up in jail for attempt to create communal disharmony, charged under the same section of the Indian Penal Code, 153A.

The Rajasthan editor of Dainik Bhaskar went on record at the time to say that the initial report on the flag-flying offence came from the police. The paper also carried a report saying the police had got the house owner to file a complaint against the journalist because the newspaper had repeatedly highlighted police failure to maintain law and order in Dausa.

The police net was cast wider in the FIR to include the photographer who took the picture of the flag on the terrace and the Dainik Bhaskar news editor sitting in Jaipur. The latter said that the reporter did get bail and the case is now with the crime branch, which is yet to start investigating it seriously.

The Chhattisgarh model

Misreporting on its own is not an offence cited in any law, unless the writing is defamatory or an incitement to violence. Section 295A or section 153A, both pertain to giving religious offence. The facts with the distortion of video have to do with defamation and forgery. Additionally, a media offence can be made out under a variety of sections of the Indian Penal Code, provided there is demonstrable damage.

What is emerging then, is a new pattern where due process is not mandatorily followed: journalists are arbitrarily picked up, albeit with state sanction, and the decision on which offences the police will act against is a matter of state discretion. Further, there is now the new option pioneered in Chhattisgarh, of simply hounding out a bothersome reporter via attacks and intimidation.