Ahmedabad: “Sarkar ne aisa mana ki aapki story se poore Gujarat me dehshat faili hai aur poore Gujarat ka mahoul bigda hai, lekin aisa kuchh nikla nahi (The government has made the assumption that because of your story terror has spread through all of Gujarat and law and order has been disturbed, but nothing of the sort happened.)”
That was what Dhaval Patel, editor of a Gujarat website called Face of Nation, told Article 14, after being released from 15 days in the custody of the Gujarat police.
Patel, 31, had been arrested on 11 May 2020 under the 150-year-old colonial-era law of sedition—essentially, waging war against the state—and “punishment for false warning”, which relates to someone who “makes or circulates a false alarm or warning as to disaster…leading to panic”, under the Disaster Management Act, 2005.
The source of these criminal charges was a story that Dhaval Patel—an investigative writer with a record of uncovering scandals involving the government—wrote on 7 May.
With the headline, “Mansukh Mandaviya called by high command, chances of leadership change in Gujarat”, the piece speculated that the ruling Bharatiya Janata Party (BJP) could replace Chief Minister Vijay Rupani and replace him with Mandaviya, a union minister and Rajya Sabha Member of Parliament (MP), because of Gujarat’s inability to contain the Coronavirus outbreak.
"No such prima facie serious offence is looked out (sic)," said Prerana C Chauhan, an additional session judge in Ahmedabad, while granting bail on 27 May, in contrast with what another judge said when sending Dhaval Patel to police custody 13 days earlier.
Additional Chief Metropolitan Magistrate M J Khojjada called Dhaval Patel’s piece “fake news” and said the editor, in discussing the “so-called change in leadership”, was trying to “destabilise” the elected government, Patel’s lawyer Anand Yagnik quoted Khojjada as saying. The case documents were not made public, which they usually are, with the judge terming them “sensitive”. The first information report (FIR) filed by the police (see below) is also not available online, as FIRs usually are.
According to Yagnik, Khojjada said Dhaval Patel’s crime was “a contempt against the elected government” and so sedition did appear to apply, a view that goes against clear Supreme Court rulings that say sedition applies only when there is an accompanying threat of violence.
In granting bail, Judge Chauhan said Dhaval Patel had no intention to cause hatred, contempt or “excite disaffection” against the government and that it was not seditious to criticize officers of the government. She did, however, say that attacking “the incumbent (the chief minister)” to create disaffection amounted to sedition.
On 18 May, Yagnik filed a petition in the Gujarat High Court to have the FIR dismissed. The court had one hearing via video-conference, and another on 2 June, when a new date was given for 18 June. Dhaval Patel may be out of jail, but his legal battle will continue.
By the end of 2016, the year for which latest data are available, 61 cases of sedition were being investigated, and about 33% of cases had been closed even before reaching the stage of trial, Article 14 reported in February 2020. Only one conviction for sedition was reported for 2014-16.
‘A Bogus Case, An Attempt To Kill Free Speech’
“This is a bogus case, an attempt to kill free speech and freedom of the press in Gujarat,” said Chitranshul Sinha, a Supreme Court advocate and author of The Great Repression, a 2019 book on sedition in India. “A speculative piece should be met with an official rejoinder or denial, not criminal action.”
“This case does not attract Section 124A by any stretch of imagination,” said Sinha. “Even the invocation of the Disaster Management Act appears to be untenable because the story has nothing to do with the pandemic. Speculating on change in administration will not spread panic in the territory.”
At least 17 other media published speculation that Rupani could be replaced as chief minister, but the police only acted against Dhaval Patel because he has “exposed many politicians and religious leaders, most of whom have connections with the BJP”, said Yagnik.
Bankim Patel, a seasoned journalist who launched a campaign to free Dhaval Patel, interpreted his arrest as a message to journalists increasingly willing to exercise their free-speech rights. The media, he said, were “hardly free” when Narendra Modi was chief minister (from 2001 to 2014), and that is changing.
“Now there are many who are vocal, anti-establishment and unbiased media houses,” said Bankim Patel. “The charge and case against him is just a test, basically, the government wants to scare journalists.” He said this was the first time the police had arrested the editor of an independent outlet for a political story.
Attempt To Create Unrest In State, Society: Police
“An attempt to create unrest in the state and society was made through a message on the web portal,” Crime Branch Assistant Commissioner of Police B V Gohil told The Indian Express on 11 May. “A preliminary investigation was conducted by the Crime Branch and after that, the editor was booked and detained.”
“It is clear that an example has been sought to be made of this editor,” said a 15 May statement from the Press Council of India. “It is strange that in this case, the policemen should arrogate to themselves the right and the authority to be arbiters of the validity of political news and developments. This is how police states operate.”
Several journalist organisations and legal experts criticised the government (here and here) for Patel’s arrest amid the COVID-19 pandemic, which had, by 2 June, claimed 1,063 lives in Gujarat, India’s second-highest death toll and the country’ highest mortality rate.
“The Prime Minister and the BJP high command are not satisfied with the performance of Vijay Rupani, who has deployed an army of IAS (Indian Administrative Service) officers to curb the rising cases in Gujarat,” read Dhaval Patel’s story. “Rupani doesn’t have a strong grip on the officials and there have been protests against his performance.”
After Patel’s story, Mandaviya, the minister and MP, made a declaration that the CM was not being replaced.
"The entire world is battling against the coronavirus and so is Gujarat under the able leadership of CM Rupani,” Madaviya, who is close to Modi, tweeted on 7 May. “At this time, spreading rumours about the change of the CM's post, etc are not in the interest of our people. I request citizens not to fall prey for any such rumours."
A Record Of Investigating The Government
Speaking to a local website, an acquaintance of Dhaval Patel said that he had exposed a series of scandals, including those involving sarees for anganwadi (creches-cum-health-centres) workers, and the BJP government’s alleged attempts to rig public tenders.
In 2015, when Anandiben Patel was the chief minister, Face of Nation broke a story about suppliers forming a cartel to land a tender worth Rs 100 crore to supply the government with nutritious food—officially called Nutrition Extruded Fortified Blended Food—for anganwadis.
That same year, Dhaval Patel also received death threats when he uncovered a sex scandal involving Swaminarayan Sampradaya, Hindu sect.
He also revealed how money was set aside for a drinking-water project in the town of Nadiad. The project was never completed. No action was taken against the municipal officials involved; instead Dhaval Patel was accused of soliciting a ransom-bribe.
The original story written by Dhaval Patel on the change in Gujarat leadership has been taken down and is now missing from his website. In its place is a story that says Mandaviya, the MP, has put rumours to rest.
On 7 May, the same day that Dhaval Patel wrote his original story, he put out a follow-up with the headline: "Amid speculation of change of guard in Gujarat, Mandviya denies; says it is a rumour."
In the follow-up story, Dhaval Patel wrote that nothing would happen until the BJP high command made an official announcement. The story said Mandaviya regularly met Modi and other senior party leaders in Delhi.
Police Wanted To Check Source, Neutrality, Political Motivation
The police said they sought Dhaval Patel’s custody to “validate” the source of his story, check its “neutrality” and verify “political motivation”, according to an application filed by the police for Patel’s custody.
Dhaval Patel told Article 14 that he could not talk about the case since he was on bail and the trial would begin, but narrated how the police took him into custody on 11 May and took him for a coronavirus test. The results arrived the next evening (he tested negative), when he was officially arrested.
On 13 May, the police submitted a request for remand to judge Khojjada at his house. He granted a 16-hour remand till the next day.
“I was produced at the judge’s house again and then sent into judicial custody [at Sabarmati Central Jail in Ahmedabad],” said Dhaval Patel. “After being in judicial custody for 13 days, I was released on bail.”
Yagnik has asked the court to dismiss the FIR, arguing—in line with a 60-year-old Supreme Court judgement—that writing can amount to sedition only if it causes public disorder or incites violence and that the article does not contain anything that can incite violence or cause public disorder, directly or indirectly.
The Ambiguity In Sedition Law
Sinha, the Supreme Court lawyer, said there is ambiguity in the language used in section 124A, as it allows the state to clamp down on any speech, performance or publication that could “excite disaffection against the government”.
He agreed with Yagnik’s contention that an “alleged seditious action should incite or have the tendency to incite violence or public disorder”.
He said while the Kedar Nath judgment of 1960 was an improvement on the existing law formulated in 1860, the definition of public disorder had been left open to interpretation. So, police and many courts often interpret sedition as hatred of or disloyalty against the government, even if it does not lead to violence or public disorder.
“The language of the provision as it stands today is more or less identical to the pre-independence language with some cosmetic changes,” said Sinha, who added that section 196 of the Code of Criminal Procedure required state-government sanction before anyone is charged with sedition.
“This sanction is required before filing a chargesheet,” he said. “Prior to filing a chargesheet the police can arrest people and commence investigation without state government sanction. This loophole is exploited by police to crackdown on dissent.”
Sinha said the Disaster Management Act and the Epidemic Diseases Act, 1897, invoked by many states to address the pandemic, provided wide powers, which were now being “misused” to curb “factual reporting” on the pandemic.
“Unrelated reports are being labelled as panic-inducing reports in an effort to bring them under the purview of the Disaster Management Act,” said Sinha. “In a nation where even otherwise journalism, which did not suit the government, was clamped down on, the pandemic has made the situation worse.”