Criminal Cases Cannot be Filed Against Journalists Merely Because Their Writings Amount to Criticism of The Government

The Supreme Court of India (the “Supreme Court“) passed two interim orders in October 2024, both of which ruled in favour of journalists against whom FIRs have been filed. In both instances, the FIRs were registered against the journalists for writing articles, alleging that the Uttar Pradesh Government favours individuals from certain castes for their appointment to administrative posts.

Mr. Abhishek Upadhyay, a journalist, filed a criminal writ petition in the Supreme Court subsequent to an FIR being filed against him for publishing a journalistic piece titled “Yadav Raj versus Thakur Raj (or Singh Raj)“, in which, he discussed the caste dynamics that influenced the Uttar Pradesh State Administration in detail and addressed the dangers prevalent in engaging in such bias¹. The piece also alleged that the Uttar Pradesh State Government favours individuals from certain castes for administrative posts.

The FIR charged Mr. Upadhyay with offences under Section 353 (statements conducing public mischief), Section 197(2)(c) (imputations or assertions prejudicial to national integration), Section 302 (uttering words, etc., with deliberate intent to wound religious feelings of any person), and Section 356 (defamation) of the Bharatiya Nyaya Sanhita 2023 and Section 66 of the Information Technology Act 2000. In the FIR, Mr. Upadhyay was accused of posting “false, baseless and misleading information” on his X (formerly Twitter) handle with the intent to tarnish the image of the Uttar Pradesh Chief Minister, Mr. Yogi Adityanath. The official handle of the Uttar Pradesh Police had also replied to Mr. Upadhyay on X stating “You are hereby cautioned and informed not to spread rumours or misinformation. Such unlawful activities, which lead to confusion and instability in society, could result in legal action being taken against you.” The petition filed by Mr. Upadhyay claims that he was also on the receiving end of various threats and wasn’t aware if any additional FIRs had been filed against him pursuant to the publication of the article.

In his petition to the Supreme Court, Mr. Upadhyay submitted that the entire article written by him, if taken at face value, does not disclose any offence punishable under any provisions of the law. Though his petition, Mr. Upadhyay sought to quash the FIR registered against him, and any other FIR that may have been filed in connection with the article.

On October 4, 2024, the Supreme Court granted an interim protection order in favour of Mr. Upadhyay. In granting the interim protection, the bench consisting of Justices Hrishikesh Roy and SVN Bhatti observed that “In democratic nations, freedom to express one’s views are respected. The rights of journalists are protected under Article 19 (1)(a) of the Constitution of India. Merely because writings of a journalist are perceived as criticism of the government, criminal cases should not be slapped against the writer.” The Supreme Court further ruled that no coercive steps should be taken against Mr. Upadhyay in connection with the subject article.

Similarly, on October 24, 2024, the Supreme Court granted interim protection to Mamta Tripathi, a journalist, against whom 4 FIRs had been registered over her article alleging caste discrimination in the administration of the Uttar Pradesh government². Senior Advocate, Mr. Siddharth Dave appearing for Ms. Tripathi contented that the FIRs have been registered as a case of pure harassment, as whenever journalists tweet something about the District Magistrates using red lights in their vehicles or concerning any caste issues, FIRs are registered against them. Senior Counsel, Mr. Dave through the criminal writ petition, pointed out that the FIRs filed against Ms. Tripathi are politically motivated, and the FIRs are attempts being made to stifle freedom of press.

A bench consisting of Justices B.R. Gavai, Prashant Kumar Mishra and K.V. Vishwanathan through the grant of the interim order in favour of Ms. Tripathi, stated that “no coercive steps be taken against the petitioner in connection with the subject articles“.

The press is often referred to as the fourth pillar of democracy. Through the press, the country is ensured access to diverse information and opinions, which fosters informed public discourse. The Court, through their rulings in October 2024 have sought to protect the journalists’ right to publish facts, opinions and analysis, regardless of whether the same can be seen as critical of the Government of India. The free press serves as a watchdog, scrutinizing the government actions, exposing corruption and promoting transparency and democracy. The Supreme Court has rightly held that the journalists in exercising their freedom of speech and expression as granted under Article 19(1)(a) of the Constitution of India should be able to express criticism of the Government and their policies. If individuals and Governmental authorities are allowed to file frivolous FIRs to quash any opinion that may be seen as critical to the government, there would be a chilling effect on the journalism in the country.

¹ Abhishek Upadhyay vs State of Uttar Pradesh, Writ Petition(s)(Criminal) No(s). 402/2024.

² Mamta Tripathi v. The State of Uttar Pradesh, W.P. (Crl.) No. 441 / 2024.