The recent arrest of the Andhra Jyothi editor and the reporters has justifiably raised concerns about the freedom of press. Commentators have already termed it as a tussle between social justice and freedom of press. This arrest raises a larger question – whether criminalizing speech and expression is the appropriate way of protecting the rights of the under-privileged sections of the society. The validity of Andhra Jyothi arrests can be sustained only if it is in accordance with the law under which the arrests have been made and more importantly the Constitution which guarantees the freedom of speech and expression.

Let me outline the brief facts before I analyze the legal and the constitutional position. The arrest of the journalists was based on a complaint lodged by Madiga Reservation Porata Samithi (MRPS) leader Manda Krishna Madiga. He had alleged that the action of Andhra Jyothi staffers in beating up an effigy symbolising him with footwear attracted the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This alleged incident took place during a rally taken out by the Andhra Jyothi employees in protest against the attack on their office by MRPS activists. Earlier, the MRPS activists allegedly raided the daily’s office, protesting against a report describing some unnamed leaders belonging to the backward classes as ‘saleable commodities.’
The arrests have been made under section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which penalizes anyone (other than a member of Scheduled Castes and Scheduled Tribes) who “intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view”. The action of the State Government in arresting the Andhra Jyothi editor and reporters is illegal and unconstitutional for four reasons.

First, the State Government cannot invoke the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act merely because a member of the Scheduled Caste and Scheduled Tribe is insulted or humiliated. It can only be invoked when a member of Scheduled Caste or Scheduled Tribe has been insulted or humiliated only on account of he being a member of Scheduled Caste or Scheduled Tribe. If he is insulted or humiliated for any other reason, then this Act is inapplicable. This is the settled legal position and any other contrary view would imply that members of Scheduled Castes are immune from all criticism and insult, even if it is justifiable. To illustrate, if the effigy of Chief Minister Mayawati (who is a member of Scheduled Caste) is burnt in protest against some action taken by her or speech given by her, the provisions of this Act cannot be invoked because she is not being insulted on account of her being a member of Scheduled Caste. In the present case, the effigy of Krishna Madiga was being burnt not on account of he being a member of Scheduled Caste, but rather in protest against attack on the newspaper offices by the organization headed by Krishna Madiga. The State Government’s action goes against the purpose of the Act.

Second, section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act under which the arrests have been made can only be invoked when the member of the Scheduled Caste is insulted or humiliated within full public view. The provision requires the presence of a member of scheduled caste when the alleged insult or humiliation happens. The Kerala, Rajasthan and the Madhya Pradesh High Courts have already held that the Act cannot be invoked if the member of Scheduled Caste or Scheduled Tribe is absent when the alleged insult or humiliation happens. On the undisputed facts, Mr. Krishna Madiga was absent at the place when the protest happened. The arrest is thus illegal and goes against the clear provisions of the Act.

Third, the arrest also violates the constitutional right of expression guaranteed under Article 19(1)(a) of the Constitution of India. The Supreme Court in a series of decisions from right from 1950 has recognized freedom of press to be implicit in the constitutional guarantee of free speech and expression. (See Brij Bhushan v. State of Delhi, AIR 1950 SC 129) While “public interest” is a justifiable ground for restricting other rights granted under Article 19 like the right to practice any profession, trade or business, our constitution makers consciously omitted “public interest” as a ground for restricting free speech. The Supreme Court in a landmark case in Sakal Papers (1962) ruled that it is not open for the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people.

Andhra Jyothi as a newspaper has a constitutional right to express its viewpoint – right or wrong – on the character of public personalities. And when it is physically attacked for expressing that viewpoint, the employees of Andhra Jyothi have a constitutional right to protest. The Andhra Jyothi employees were doing precisely that. Instead of taking effective action against those people who attacked the constitutional right of free speech, the State Government invoked the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and applied it in a manner inconsistent with the right of free speech and expression.

Fourth, the larger concern with the action of the State Government is that it creates a “chilling effect” on the exercise of constitutional right of free speech and expression. Anyone (including the media) who wants to criticize or comment on an action or statement made by a member of a Scheduled Caste or Scheduled Tribe will think twice about doing so, even if it has nothing to do with the caste of that person. The Government is under an obligation to create an enabling atmosphere where people can express its opinions without any fear or threat from the government or from any private organization, however powerful that organization might be. By arresting the editor and reporters of the Andhra Jyothi, the government has created a disabling atmosphere for exercising the right of free speech and expression.