The State and Sakshi - Part I
Can the CBI be used as subordinate tool to wreck vengeance against a hostile opposition party and its media?
The selective use of power against the media of a political rival is misuse, says MADABHUSHI SRIDHAR. Pix: movies.rangu.com
With the frustration and apprehension that Sakshi’s campaign would have had a hostile impact on the ruling party in the ensuing by-elections, the Kiran Kumar Reddy’s Government is trying to cripple the financial sources of Sakshi. History has taken a complete turn, as what was done by his father Dr. Y.S. Rajasekhar Reddy as Chief Minister to the Telugu daily Eenadu, is now being done to his son’s (Y.S. Jaganmohan Reddy’s) media house- Sakshi. In 2009 Sakshi substantially influenced the minds of voters against Telugu Desam and helped Congress to retain power. Sakshi TV has extensively used the video clippings of NTR’s criticism against his son-in-law Chandrababu Naidu, alleging backstabbing, seriously affected the TDP chances.
The situation is diametrically opposite now as Sakshi with the YSR Congress Party is threatening the prospects of both the Congress and the TDP. The pertinent question is: if there is clinching evidence why not the state arrest Jaganmohan Reddy and get charges framed by court, which is eternally being delayed because of inaction of political bosses? If they cannot arrest him for fear of an upsurge in his popularity, why cripple the accounts of Sakshi? Can the State target extinction of media in the name of regulation? How can the Central Bureau of Investigation be used as subordinate tool to wreck vengeance against a hostile opposition party and its media?
It is in this context that the seizure of bank accounts of Jaganmohan Reddy’s Sakshi daily and TV, followed by the stoppage of government advertisements smack of ‘mala fides’ which vitiate the legality of action, directly impacting survival of Sakshi. Legally the CBI has every authority to seize the accounts to prevent disappearance of ill-gotten money. The underlying objective of Section 102 of the Criminal Procedure Code was to empower the court to get hold of money linked to crime. An investigating agency can seize accounts if the assets have direct links with an offence (as per Supreme Court of India in State of Maharashtra vs Tapas D. Neogy on 16 September, 1999). The Apex court also mandated issuing of notice before seizure orders. However, the Bombay High Court held in Vinoskumar Ramachandran vs The State of Maharashtra, (Criminal application no.4376 of 2009) that issuing notice is absurd as that facilitates accused to transfer money.
If it is so essential why did the CBI did not seize Sakshi accounts long ago when it contained more than Rs. 350 crore, but freeze it now after it has dwindled to Rs. 100 crore? The agency is yet to prove that this account was a depository of proceeds of crime. Procedural law gave authority to seize only to protect the money to be handed over to the victims of cheating besides valuing it as a piece of evidence. It will remain evidence whether seized or not.
Mala fide action
Using statutory power for purposes other than achieving objects of that statute would amount to misuse and politically motivated, as per the decisions of Supreme Court in several such attacks on media. If excessive exercise of power affects a media organization, it is nothing but attack on the freedom of speech and expression. In fact every attack on freedom of press is apparently by use of some statutory authority only. Here are a few examples. Imposing heavy duty on import of newsprint was held to be the violation of Article 19(1)(a) by Supreme Court Justice O Chinnappa Reddy in Indian Express v Union of India, AIR 1986 SC 515. Freedom of press means freedom from interference from authority. If the result of action would be disastrous to the owners of the Indian Express as they would have to pay heavy customs duty that would be a violation.
Because the Indian Express exposed his actions during emergency as ‘excesses’ Lt Governor of Delhi Administration, Mr. Jagmohan prevailed over Delhi local authority to forfeit lease of newspaper building and issued a notice of re-entry in 1986. The Lt. Governor also held out a threat at the press conference that the new Express Building might have to be demolished for alleged violations. On its petition Supreme Court (Express Newspapers Pvt. Ltd. & Ors vs Union Of India & Ors, AIR 1986 SC 872) held that action was meant for collateral purpose of harming the interests of freedom which amounted to mala fide exercise of power and hence unconstitutional. Such orders were really intended and meant to bring about the stoppage of the publication of the Indian Express which has throughout been critical of the Government in power whenever it went wrong on a matter of policy or in principle, the court explained.
In Maneka Gandhi vs Union of India (AIR 1978 SC 597) the Supreme Court pointed out that even where a statutory provision empowering an authority to take action is constitutionally valid, action taken under it may offend a fundamental right and in that event, though the statutory provision is valid, the action may be void. In this case the Government of India decided to impound petitioner’s passport under s 10(3) (c) of the Passport Act "in public interest". The direct and inevitable effect of an order impounding a passport may be to abridge or take away freedom of speech and expression or the right to carry on a profession and where such is the case, the order would be invalid, unless saved by Article 19(2) or Article 19(6).
Test of Reasonableness
In Bennett Coleman's case (AIR 1973 SC 106) the Court indicated that the extent of permissible limitations on this freedom was indicated by Article 19(2) of the Constitution itself. It was laid down that permissible restrictions have to be imposed by a duly enacted law and must not be excessive i.e. they must not go beyond what is necessary to achieve the object of the law under which they are sought to be imposed. The power to impose restrictions on fundamental rights is essentially a power to 'regulate' the exercise of those rights. In fact, 'regulation' and not extinction of that which is to be regulated is, generally speaking, the extent to which permissible restrictions may go in order to satisfy the test of ‘reasonableness’.
The true test, according to the Court, is whether the effect of the impugned action is to take away or abridge fundamental rights. Applying the same test here, the orders of seizure of accounts might have a direct impact on the survival of the media. It may be recalled that Supreme Court prevented the state from seizing the accounts of Ramoji Rao while initiating prosecution for allegedly collecting deposits for Margadarshi in breach of RBI Act. While rulers tried to defend action as part of rule of law, Telugu Desam Party, Eenadu, eminent journalists and editor’s guild criticized it as an assault on freedom of press. In a similar situation now TDP and a section of press are not saying the same obviously for political reasons. Powers that be should understand that any abuse of state power is an attack on freedom and selective use of power against media of political rival is also misuse.
Madabhushi Sridhar is Professor and Head, Center for Media and Public Policy, NALSAR University of Law
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