What’s the basis for FIRs filed against The Wire for ‘disobedience and promoting enmity’?

On April 1, two FIRs were filed involving the online news website The Wire, purportedly for “disseminating fake news”. The FIRs were filed over a news story that incorrectly attributed a quote to Uttar Pradesh chief minister Yogi Adityanath.

By the time the FIRs were filed, the story had long been corrected.

Lawyers told Newslaundry that the FIRs didn’t add up. For example, one was filed under a section of the Indian Penal Code that punishes “disobedience to order duly promulgated by a public servant”. Yet, the FIR wasn’t filed by a public servant whose order had been disobeyed in this case; the FIR in fact made no real allegations against The Wire.

Let’s break it down.

Timeline of events

On March 31, The Wire published a piece on the conversion of Jawaharlal Nehru Stadium in Delhi into a quarantine centre due to the spike in coronavirus cases in India after up to 4,000 people attended an event organised by the Tablighi Jamaat in Nizamuddin West.

On the day the event took place, the story continued, Adityanath had “insisted that a large fair planned for Ayodhya on the occasion of Ram Navami from March 25 to April 2 would proceed as usual”.

The original version of the article quoted Adityanath as saying, “Lord Ram would protect devotees from the coronavirus.” When The Wire’s founding editor, Siddharth Varadarajan, posted the story on Twitter, he too attributed the quote to Adityanath.

At 11.19 am on April 1, Adityanath’s media advisor, Mrityunjay Kumar, tweeted that the chief minister had said “no such thing” and threatened to file a defamation case if Varadarajan did not delete the tweet.

Three hours later, at 2.43 pm, Varadarajan clarified on Twitter that the quote had been incorrectly attributed to Adityanath, instead of to Acharya Paramhans, the head of the Ayodhya Temple Trust.

Varadarajan didn’t delete his previous tweet, but The Wire corrected the story and added a clarification.

At around 8.30 pm, Mrityunjay Kumar returned to Twitter and said an FIR had been filed against Varadarajan for not deleting the tweet or apologising.

Soon after, Kumar said a second FIR had been filed against Varadarajan.

Meanwhile, ANI tweeted that an FIR had been filed against The Wire for "allegedly disseminating fake news".

The FIRs

The first FIR, which was also tweeted by ANI, was lodged at the City Kotwali police station in Uttar Pradesh’s Faizabad, against “the editor of The Wire”, without naming Varadarajan specifically. The website has two other founding editors, MK Venu and Sidharth Bhatia.

The complaint was lodged at around 7 pm on Wednesday by one Nitish Kumar Srivastava of Faizabad. It invoked penal provisions punishing disobedience to order duly promulgated by a public servant as well as public mischief, specifically creating or promoting enmity, hatred or ill-will between classes.

According to the Indian Express, Srivastava is the station house officer of City Kotwali police station. The FIR quoted from The Wire’s piece, specifically this section: “On the day the Tablighi Jamaat event was held, Yogi Adityanath insisted that a large fair planned for Ayodhya on the occasion of Ram Navami from March 25 to April 2 would proceed as usual while Acharya Paramhans said that ‘Lord Ram would protect devotees from the coronavirus’. One day after Modi announced the ‘curfew like’ national lockdown on March 24, Adityanath violated the official guidelines to take part in a religious ceremony in Ayodhya along with dozens of people.”

The second FIR was filed at 5.42 pm by Hardajan Goud at the Ayodhya police station in Faizabad under Section 66D of the Information Technology Act. The provision relates to cheating by personation using computer resources. This FIR was filed against “Siddharth” for tweeting “unverifiable claims” about the chief minister of Uttar Pradesh.

The complainant said in the FIR that the tweet had “troubled” him.

It should be pointed out that by the time the FIRs were filed, The Wire had already corrected the piece, and Varadarajan had said as much on Twitter.

At 11 pm on Wednesday, The Wire’s founding editors published a statement about the first FIR, calling it “an attack on the freedom of the press” that is “ aimed at stifling legitimate expression and factual information”.

The statement also pointed out that the FIR specifically mentioned that The Wire had reported on Adityanath attending an event on March 25. That “is a matter of public record”, the statement said.

Are the FIRs legally valid?

Chitransul Sinha, an advocate on record at the Supreme Court, told Newslaundry there isn’t any order by a public servant stating The Wire can’t publish a story that’s factually incorrect.

“Any FIR under Section 188 can only be lodged by the public servant whose order has been disobeyed,” Sinha explained. “The public servant will first have to give a written complaint and on the basis of that, the police has to lodge an FIR.” As noted before, the Indian Express says the complainant in the first FIR, Srivastava, is the station house officer of City Kotwali police station.

Sinha added: “There is no locus for any third party to lodge a complaint under Section 188.”

The FIR itself makes no mention of “fake news” by The Wire. “What the FIR as tweeted by ANI simply says is what The Wire reported, which is factually correct,” Sinha said. “Initially, The Wire had misattributed Paramhans’s statement to Adityanath, but even they had clarified later that it wasn’t true, and that the statement came from Paramhans. Even the allegation of misquoting Adityanath is not mentioned in the FIR.”

The FIR only mentions “an unnamed or unidentified article of The Wire”, Sinha pointed out.

Asked about the complainant invoking Section 505(2), Sinha said, “Section 505(2) talks about statements or rumors which may cause panic or class enmity between race and religion. But the Supreme Court had already ruled that this particular section cannot be attracted unless there is a threat to state security.” He was referring to the apex court’s observation in the 1962 Kedar Nath case, which said Section 505 requires an effect on the security of the state and/or public order.

Sinha said the filing of the FIR showed a “lack of awareness”. “The FIR is not supposed to be the ending point of the allegations. It's only a point for the investigation to begin. However, to register an FIR at the outset is a big step,” he said. “In many cases, only written complaints are given and after a probe, if something is found, then an FIR is registered.”

The second FIR was filed under Section 66D of the IT Act. That section is only applicable in cases of phishing, Sinha said. “Basically if somebody tries to steal your identity, take money from your account, impersonate you, etc. So, it's not applicable here as well.”

Sinha said the filing of the FIRs “says a lot” about the Uttar Pradesh administration and how they “perceive the media”. He referred to how an FIR was filed in Noida against Aam Aadmi Party MLA Raghav Chadha last week, for allegedly making objectionable comments about Adityanath.

“The trigger here is anti-chief minister statements are taken very seriously by the Uttar Pradesh police,” Sinha said. “And especially if it comes from the media, where the police is even stricter with that.”

In The Wire’s case, Sinha said he’s optimistic about the Allahabad High Court stepping in.

“If this is brought to its notice, the high court might just protect The Wire for the time being, even if a detailed hearing might not be provided,” Sinha said. “They might make a decision after everything is settled, and parties can reasonably approach the court and argue before them.”

Sinha’s views are echoed by Vakasha Sachdev, associate editor, legal, of The Quint. Sachdev tweeted a thread on the FIRs on Twitter, which was later retweeted by Varadarajan.

Sachdev also pointed out that since The Wire put up its story on March 31, the only thing that’s changed is the Supreme Court order directing media outlets to publish the government’s official version of developments pertaining to the coronavirus outbreak. “It certainly doesn't make it illegal to report unflattering news about a Chief Minister,” Sachdev tweeted.

Sinha also doesn’t think the Supreme Court order pertains to the FIRs against The Wire. “However, it is possible for the order to be misinterpreted and misused,” he said.

Vikram Singh, a lawyer based in Delhi, told Newslaundry that for Sections 188 and 505(2) to be applicable, a person needed to do something which incited the public to break an order passed by an authority, “which, according to the account of the incident, The Wire hasn’t done”.

“They haven't asked people to defy an order, they haven’t said anything to incite people to commit an offence, and they haven’t personated anybody and spread false information,” Singh said.