Full text: Fali Nariman explains why the CBI raid on NDTV was an attack on press freedom

Noted lawyer Fali S Nariman on Friday criticised the Central Bureau of Investigation raids and FIR against the NDTV news channel on Monday, saying that the “manner and circumstances” of the raids, and the agency’s so-called justification of it “give me reason to believe that all this...[is]...definitely an unjustified attack on press/media freedom”.

Nariman was speaking before a packed gathering at an event organised at the Press Club of India, in Delhi, to express support for the television channel. The raid the home and premises associated with NDTV co-founder Prannoy Roy had been carried out in connection with an alleged loss of Rs 48 crore on a loan NDTV had taken from ICICI Bank.

“We citizens in India enjoy freedoms that are not enjoyed in most places in the continent of Asia,” he said. “We are meeting here to prevent further de-legitimisation of the media by condemning the unexplained raid on NDTV.”

Nariman recalled that in the past, single-party majoritarian governments of the kind India has now have also attacked the press, citing Indira Gandhi as an example.

The constitutional expert acknowledged that no one was immune from being prosecuted for a criminal offence but asked why the CBI had filed an FIR directly on the basis of information supplied by a private individual regarding events that are said to have taken place nearly eight years ago.

He drew attention to the fact that the CBI action against the channel took place days after an NDTV anchor asked Bharatiya Janata Party spokesperson Sambit Patra to apologise or leave a show she was hosting, after Patra claimed that the channel had an agenda.

Here is the full text of his speech:

I come here on invitation to say a few words to you not only because I fervently believe in our constitutionally guaranteed press/media freedom, but more importantly and more significantly because I also believe in the independence, integrity and honesty of Prannoy Roy of NDTV – a friend of more than 30 years – on whose invitation I attend this meeting.

As to the topic – press freedom – we are here speaking amongst the already converted. We citizens in India enjoy freedoms that are not enjoyed in most places in the continent of Asia.

I did not realise this until a few years ago when my wife and I attended the Commonwealth Law Conference in Kuala Lumpur: one of the delegates was a retired judge of Malaysia’s Court of Appeal and he told a crowded hall of over 1,000 delegates in the presence of the then prime minister, Mr Mahatir, who as you know was not exactly a liberal.

The retired judge said in a loud voice: Our written Constitution “guarantees freedom of speech”; applause. Then after a long pause, he added – looking towards his prime minister – “But it does not guarantee freedom after speech”. Freedom after speech – that is really what freedom of speech is all about. Never forget this.

Let me make one thing clear. No one is immune from being prosecuted for a criminal offence – not any of you, not I, not Prannoy Roy, not NDTV.

But the manner and circumstances and the so-called justification of the CBI raids on NDTV (much publicised thereafter) do give me reason to believe that all this (the raids and the FIR filed by the CBI) are definitely an unjustified attack on press/media freedom.

Let me tell you why.

On June 2, 2017, a first information report was lodged by the CBI alleging criminal conspiracy, cheating and criminal misconduct on the part of NDTV, Prannoy Roy and his wife Radhika Roy, and unknown officials of ICICI Bank about something that took place during the financial year 2008-2009.

The FIR was lodged by the CBI in the CBI court on the basis not of any discovery by the CBI on its own but only on the basis of information supplied by one Sanjay Dutt, director, Quantum Securities Private Limited, to the director, CBI, in his letter of complaint dated 28-04-2017 (marked confidential).

Although the criminal misconduct was said to have occurred in the year 2008-2009 – as to why it was not brought to light earlier was neither mentioned nor explained in the complaint letter of April 28, 2017 addressed by Sanjay Dutt to the CBI. Not did the CBI bother to find out why something that happened in the year 2008-2009 was not brought to the notice of the CBI court or of any other criminal court or any other person before 28-04-2017.

The entire FIR filed by the CBI before the CBI court is based only on information supplied in the complaint of Sanjay Dutt dated 28-04-2017.

What is of great significance is that prior to filing his complaint with the CBI by letter dated April 28, 2017, (or thereafter) Sanjay Dutt (although he had sent 200 emails to NDTV on various matters) had not addressed any communication to NDTV making the specific allegations mentioned in his complaint to the CBI, nor does he explain why he did not file an FIR in a criminal court himself alleging breaches of the criminal law on the part of NDTV.

I do not know whether on any other occasion the CBI has filed an FIR directly on the basis of information supplied in a private complaint addressed to it without the complainant being required to make his case before a criminal court – this must be inquired into.

But more importantly, on receiving such a complaint, what is the obligation of a reputed investigative agency of the state set up by law such as the CBI?

Obviously, to my mind, the first thing it (CBI) would do, in fairness, would be to ask the persons against whom allegations are made, viz. NDTV and ICICI Bank, as to what they have to say in the matter – particularly since the allegations now made in 2017 are in respect of events of the year 2008-2009.

But no such inquiry was made by the CBI before conducting the raids on 5-6-2017 or before filing the FIR on 2-6-2017 – not a single letter of CBI to NDTV with regard to the allegations made in Sanjay Dutt’s letter of 28-04-2017.

My legal submission is that in the case of an allegation by any government or governmental agency, including the CBI, of wrongdoing against the press or the media (who enjoy constitutionally guaranteed press freedom)

Whenever the CBI files a criminal complaint (an FIR) not of its own but only on the basis of information supplied by a third party, it must in furtherance of press freedom guaranteed under Article 19 (1) (a) inquire from the owners/promoters of the company running the press or the media concerned what it has to say in the matter before conducting raids on its premises and on the premises of those in charge of the press or media and before filing a criminal complaint on the basis of such information. This it must do, not as a matter of courtesy or favour, but as a matter of constitutional obligation.

In the present case, Prannoy Roy assures me that he and NDTV have a complete answer to each and every statement made in the letter of April 28, 2017 (headed “confidential and privileged”) addressed by Sanjay Dutt to the CBI and which is a letter reproduced in full in the FIR filed by the CBI on June 2, 2017, and that he, Prannoy Roy, has never had an opportunity to deal with its contents.

However, this is not the place or occasion to debate whether NDTV has or has not committed any offence as alleged in the complaint letter dated April 28, 2017, of Sanjay Dutt to the CBI.

But the events preceding the later much-publicised raids on NDTV are the most significant:

1. On June 1, 2017, on a television programme of NDTV, when Sanjoy Hazarika was speaking and the official BJP spokesperson Mr Sambit Patra interrupted him and Sanjoy Hazarika asked whether Sambit Patra had the right to interrupt, the response by Sambit Patra was: “I interrupt people only on NDTV and I do that because NDTV has an agenda and I need to do that.”
2. At this, the anchor asked Mr Patra to leave or apologise.
3. Mr Patra: “Why should I leave? I will expose the NDTV agenda. I should expose you and your TV’s agenda.”
4. The anchor replied that to use such language and make that kind of an accussation was unacceptable.
5. But Mr Patra persisted and said “I will expose it till the end of this debate”, at which the anchor said, “I am not continuing this debate with you any longer.”
6. It was after BJP spokesman Mr Patra’s accusation on live TV on June 1, 2017, that the CBI raids took place on June 5, 2017 at Prannoy Roy’s residence in Delhi, at his home in Dehradun and Mussourie and at the NDTV office in Delhi and Financial and Accounts offices of NDTV.

I urge you to consider these events and their sequence – they must worry you as they have worried me.

Pratap Bhanu Mehta in an article in The Indian Express shortly after these raids, two days ago, said:

“Once the press called all politicians cheats, the political class simply turned the tables on them by calling them all “presstitutes”. Remember, as civil society did, all the state had to do was sow the seeds of doubt. The result was an almost wholescale delegetimisation of the media.”

We are meeting here to prevent further de-legitimisation of the media by condemning the unexplained raid on NDTV and filing of an FIR by the CBI on the basis solely of information given a complaint dated April 28, 2017, by Sanjay Dutt, Director, Quantum Securities Pvt Ltd in a confidential and privileged communication to the CBI as to events that are said to have taken place in 2008-2009 on the basis of which CBI had filed an FIR before the CBI court on 2.6.2017 for adjudication – admittedly without ascertaining from NDTV the truth or otherwise of the facts alleged in the complaint letter dated 28.04.2007.

But all this pertains to the NDTV case.

When there is a single-party majoritarian government as there is in the present time and the present day (as there was it must be remembered in the years when Mrs Indira Gandhi was prime minister and for a while when Mr Rajiv Gandhi was also prime minister), a similar situation had prevailed and there were similar attacks on the freedom of the press.

The press and the media supported by an independent judiciary are the only safeguards to an open democracy.

But then question is, what has this got to do with all the other channels and the press generally – leave it all, NDTV can suffer if they want to?

[This] is the sort of query to which one of the most effective answers was given long ago.

It was in a poem written by German priest Martin Niemoller (1892-1984) and it was about the cowardice of German intellectuals following the Nazis rise to power and subsequent purging of chosen targets group by group. This poem is now enshrined in the Holocaust Memorial Museum in New York:

First they came for the Communists
And I did not speak out
Because I was not a Communist
Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist
Then they came for the Jews
And I did not speak out
Because I was not a Jew
Then they came for me
And there was no one left
To speak out for me.

NDTV apart, we may contemplate today whether the blessings of a Free Press are really worthwhile?

There are several views on this, but those I like best are the following:

First the sophisticated one, given by our own Supreme Court way back in 1950 – the year of the birth of our Constitution (when electronic media was not thought of) – Justice Patanjali Sastri, for five Justices: himself and Chief Justices Kania and Justice Mahajan, BK Mukherjee and Das in a Constitution Bench decision in Romesh Thapar case spoke eloquently about the right of free speech and expression in our Constitution and then added:

  “A freedom of such amplitude might involve risks of abuse. But the framers of Constitution may well have reflected with Madison who was the leading spirit in the preparation of the first Amendment of the Federal Constitution that ‘it is better to leave a few noxious branches to this luxuriant growth than by pruning them away, to injure the vigour of those yielding the proper fruits.’” [Quoted in Near vs Minnesota]  

The other answer is not so sophisticated. It was given by an experienced political figure – a man who later became our President: it is a story of long ago but bears repetition.

It was at the time when my good friend Arun Shourie was the Editor of The Indian Express. He had written an article critical of some action of President Zail Singh and Gianji was so upset that he had Shourie summoned to Rashtrapati Bhawan for a dressing-down. Shourie went meekly (Arun when he writes roars like a tiger, but when he speaks, he is most soft-spoken, almost like a lamb.)

Arun went and called on Gianiji and to his surprise, the Rashtrapati showing him all his pearly white teeth, simply smiled and embraced him and began exchanging pleasantries. “Shourie saab kya chal raha hai,” and the like.

The secretary, who it was that had curtly summoned Shourie, then whispered anxiously into the Presidential ear: “Sir, you are supposed to get angry with him.” At which Zail Singh responded, typical of the man: “Arre unko likhne do. Padhta kaun? [Let them write. Who reads?]”

That is perhaps a more pragmatic answer to the occasional abuses by the press of its privileges.

But let me conclude the message conveyed to me in one final story.

Mario Cuomo was a governor of New York for many years – he was a wily politician like Gianiji. He once addressed a prestigious body, the New York Press Club, soon after the New York Times in an editorial had accused him of exercising political patronage as governor through his law firm run by his son.

Cuomo spoke about press freedom and this is what he said when speaking of the First Amendment in the Constitution to the United States:

“The Founding Fathers knew precisely what they were dealing with. They had a press. And the press of their time was not only guilty of bad taste and inaccuracy, it was partisan, reckless, sometimes vicious. Indeed, the founding fathers were themselves often at the point end of the press sword…They knew the dangers. They knew that broad freedoms would be inevitably accompanied by some abuse and even harm to innocent people. Knowing all the odds, they chose to gamble on liberty. And the gamble has made us all rich and happy. Overall, the press has been a force for good – educating our people, guarding our freedom, watching our government  –  challenging  it, goading it, revealing it, forcing it into the open.”  

I suggest then that on this day we adopt Governor Cuomo’s message and “gamble on liberty” – there is no other democratic way.