On 4 November, Arnab Goswami, news anchor and founder of Republic TV, was arrested by Maharashtra’s Raigad Police in an abetment of suicide case.

The Hindu, in a striking editorial, noted on Goswami’s arrest:

“The arrest of Arnab Goswami, editor-in-chief of Republic Media Network, is, without doubt, a high-handed action that may contain an element of vendetta […] Police should have avoided an arrest that could be seen as politically motivated.”

The case in question was formally closed in 2019. Goswami was arrested after police began reinvestigating the same. The fashion in which this case was reopened, and a journalist – critical of the state government and Police Commissioner – was arrested, has a chilling effect on the freedom of press and exposes the functioning of a system where the police acts as a puppet of the executive.

With this episode, the moment of truth has arrived yet again – the iniquitous and colonial connection between the police and executive persists even in circa 2020.

In a free India, however, we have an independent judiciary and a written constitution (only if one believes so). So, the action of every constitutional authority shall pass the test on the touchstone of constitution and legality, and the forum prescribed for examining is the Court.

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And yet, the Magistrate – the first line of defence in cases of civil liberties – acted in a mechanical way, when she was supposed to act as a corrective. The Chief Judicial Magistrate (CJM), inter alia, noted that the victim’s death was not clearly connected with the accused and there is no record to show that the magistrate permitted reopening of the case.

The order further said: “… the arrest appears to be prima facie illegal.” 

Yet, the accused was sent to judicial custody – a classic case of a mechanical order by a magistrate working on the behest of a political executive. The behaviour of the magistrate was not surprising, for in a country where the future paths of magistrates are held in the hands of the executive, one cannot expect the former to develop a sense of comradeship while delivering the orders, even more so in a case where the executive, with all its coercive powers, has a stake.

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In effect of the arrest, a burden – unreasonable and arbitrary – is placed upon the critical speech of press. The constant fear of possible imprisonment, if found guilty of trumped-up charges, constitutes the most serious chilling effect, especially upon journalists working on deadlines, and politicians caught up in the thick of political debates.

In response, the accused moved Bombay High Court through a habeas corpus petition under Article 226 of the Constitution. The writ of habeas corpus, however, by definition, is dictated against the executive. But in this case, the challenge was not against the executive since the deprivation of accused’s liberty had received judicial sanction.

So, effectively, the petition was not challenging Arnab’s illegal arrest, but a judicial order of remand. Thus, arose a set of procedural issues on maintainability of the petition.

Round the years, the Supreme Court, however, has set out an anomaly – based on an extraordinary situations – to the rule and ordinary procedure. The formulation of law on this issue was made clear in CFIO v Rahul Modi. The  Court, on the question of personal liberty, could now answer the habeas corpus challenging the order of remand which is “wholly illegal” or have been passed “absolutely mechanically.”

The shift is small but of substantial import in the view of personal liberty of an individual. The new development has also manifested the concept of “presumption of innocence” in its fullest spirit. In this case, however, the Bombay High Court has refused to entertain the petition citing the nature of the case to be graver and therefore, declined the petitioner’s argument of freedom of press and mala fide effectively.

Notably, the jurisprudential basis of this new trend is restricted to the question of free speech and personal liberty, and rightly so. It is bizarre that Goswami’s arrest is not being seen as a case of dealing with “freedom of press” in light of the events happening around it.

The case, of course, is unrelated to Arnab’s work as a journalist. At the same time, the way events have unrolled, the manner in which the police reopened the case, and the fashion in which they have arrested the accused does a straight harm to press freedom.

People rejoicing over Goswami’s high-handed arrest due to his lower journalistic credentials are effectively aligning themselves with the coercive power of the State. They ought to be reminded they they will have no leg to stand on when the reverse crops up.

Views expressed are the author’s own.