Stronger The Order, More You Feel It Must Be Looked Into Carefully: CJI Chandrachud On Kerala HC's Order Against Shajan Skariah
Chief Justice DY Chandrachud while staying the arrest of digital media journalist Shajan Skariah, said that the Kerala High Court's order refusing him anticipatory bail was a strong order and that the stronger the order, the more one feels it should be looked into more carefully.
FIR was registered against Shajan Skariah, editor of Marunadan Malayali on a complaint by PV Sreenijin, who is an MLA of the ruling party and the son-in-law of the former Chief Justice of India, K. G. Balakrishnan. The Kerala Police had invoked offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the Act) for a news video allegedly making false allegations and accusations against the MLA and his father-in-law.
The CJI sitting on a Bench also comprising Justice P.S. Narasimha said, "The High Court has written such a strong order. That is why said, let me first go and see the transcript. Sometimes, the stronger the order the more you feel that we must look into it a little more carefully". During the hearing, the CJI said that he has already seen the transcript of the video created by Shajan Skariah.
At the outset, the CJI told Senior Advocate V. Giri who said that he is appearing for the MLA that it is only a petition for anticipatory bail. "I read the transcript. There is not a whisper of an allegation under the SC ST Act in the statement", the CJI said. The CJI said that though the words "on the ground of caste" is missing in Section 3(1)(r) of the Act, it has to be read in a reasonable manner.
"Your client belongs to the Scheduled Caste, he said something nasty to your client. But this has no implication on your caste status at all", the CJI told Giri. "He says something about your father-in-law, about the judiciary, it may still be defamatory. You can still take whatever other remedies that you have against him but not a case for arrest", the CJI said.
Chief Justice Chandrachud explained this through an example. "Suppose, A is a member of SC has a contract with B. A takes 25 lakhs and does not return that money to B. B calls A a cheater. Does that involve an offence under (r)", Justice Chandrachud asked.
"Should we be teaching him a lesson because of the fact that we don't approve of his statement by sending him to jail? We thoroughly disapprove of his statement, but jail is not the answer", the CJI remarked.
The Bench did not accept the argument of Senior Advocate Giri that Shajan Skariah mentioned the name of the constituency of the MLA only because the same is a reserved constituency for 20 years, only to highlight the caste of the MLA.
The Court also did not accept the plea of Senior Advocate Ranjith Kumar who appeared for the state and submitted that the Shajan has not joined the investigation even once, seeking some direction in this regard. "This is not a case where money is to be recovered, weapon of offence is at large", the CJI said laughing.
Senior Advocate Sidharth Luthra along with Senior Advocate Sidharth Dave who appeared for Skariah did not have to make any submission. (read report)
During a conversation after the Court passed its order staying the arrest of Shajan Skariah, Sidharth Luthra told the Court about the MLA that "The gentleman invokes this very statute repeatedly. There are other cases. Anybody says something against him, there is one legislation he takes recourse to". The Bench laughed at the statement.
Justice VG Arun of the Kerala High Court in an order of June 30, 2023, denying anticipatory bail, had held that "At this stage, the court can only go by the allegations in the complaint and the attendant circumstances. The allegation is specific to the effect that the appellant has been insulting and humiliating the second respondent only for the reason that he belongs to the Scheduled Caste. The attendant circumstances are the wanton nature of the allegations and the repeated news items published against the second respondent."
The Kerala High Court also noted that allegations levelled against the MLA include murder and contains insinuation against his father-in-law and bestows the title 'Mafia Don' on him. The Court said that as such, it can unhesitatingly be held that the video contains insults, which are intended to humiliate the MLA in public view.
The Court had in the impugned order observed that the four W's of journalism that used to guide journalists in their reporting and helped in ensuring the accuracy and completeness of news stories are: 'Who, What, When and Where' while the videos like the one under consideration make one wonder whether the W's have been replaced with D's; 'Defame, Denigrate, Damnify and Destroy'.
The MLA Sreenijin had submitted the complaint, that he is being singled out by the appellant for the reason of being a Scheduled Caste member. Shajan was then booked under the offences punishable under Sections 3(1)(r) and 3(1)(u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.