This Case Analysis is done by Aashish Sood, a final year law student at Rayat Bahra University School of Law during his internship with LeDroit India.
Keywords:
Press Freedom, Journalistic Rights, Criminal Procedure Code, Fundamental Rights, Judicial Review,fourth pillar
1.Abstract
The case of G. Vishakan v. State of Kerala & Ors., 2023, highlights significant concerns regarding the rights of journalists, procedural lapses by law enforcement, and the balance between state authority and press freedom. The case arose when the Kerala Police seized the mobile phone of senior journalist G. Vishakan without following due process under the Criminal Procedure Code (CrPC). The Kerala High Court, recognizing the importance of press freedom and procedural integrity, took a firm stance against arbitrary actions by law enforcement. This case analysis explores the legal and constitutional aspects involved, the court’s reasoning, and its broader implications for journalism and law enforcement in India.
2. Introduction:
The role of the press as the “Fourth Estate” is crucial in any democratic society. Journalists play an essential role in holding governments accountable and ensuring transparency. However, in recent times, there have been increasing concerns about governmental overreach and attempts to suppress investigative journalism through coercive actions.
The case of G. Vishakan v. State of Kerala & Ors., 2023, is an important legal battle that underscores the fundamental rights of journalists and the need for strict adherence to procedural law by law enforcement agencies. The Kerala High Court’s intervention in this matter not only upholds journalistic freedom but also reinforces the rule of law.
This case analysis examines the factual background, legal issues, judicial reasoning, and the broader impact of the decision on press freedom and law enforcement practices in India.
3. Background and Context:
The case originates from an incident involving G. Vishakan, a senior reporter with the Malayalam daily Mangalam, based in Ujjaini. On July 3, 2023, police conducted a search at Vishakan’s home in connection with a criminal case against Shajan Skaria, the editor of the Malayalam web portal Marunadan Malayali. Skaria was charged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for allegedly defaming CPI(M) MLA P V Sreenijin, with claims of intentional humiliation. During the search, police seized Vishakan’s mobile phone, despite his assertion that he was neither an accused nor a witness in Skaria’s case. Vishakan’s only connection to Skaria was occasional news sharing for remuneration, highlighting his role as a journalist rather than a direct party to the criminal proceedings.
Vishakan filed a petition in the Kerala High Court, seeking interim directions for the return of his phone, arguing that its seizure was unauthorized and impacted his livelihood, as the phone was his primary tool for work. This action underscores the broader issue of police interactions with journalists, particularly in sensitive cases involving media freedom and legal rights.
4. Factual Background:
A .Seizure of the Mobile Phone
•On July 3, 2023, the police visited the residence of G. Vishakan, a senior journalist associated with Mangalam Daily.
•The police questioned Vishakan regarding his connections with Shajan Skaria, the editor of Marunadan Malayali, a YouTube news channel.
•Following the interrogation, he was asked to appear at the police station.
•At the police station, his mobile phone was seized without any formal procedure or justification.
B. Lack of Legal Basis for Seizure
•The police did not provide a written seizure memo.
•Vishakan was neither named as an accused nor as a witness in any case.
•No legal notice or summons was issued before taking possession of his phone.
C. Allegations of Harassment
•Vishakan alleged that the police harassed him and his family members.
•The police actions were viewed as an attempt to intimidate and silence independent journalism.
D. Legal Petition and High Court Intervention
•Vishakan moved the Kerala High Court, challenging the seizure of his phone.
•He argued that the seizure violated his fundamental rights under Article 19 (freedom of speech and expression) and Article 21 (protection of life and personal liberty).
•The High Court took cognizance of the case and issued notices to the police department.
5. Legal Issues Involved:
A.Violation of Criminal Procedure Code (CrPC) Provisions
•Whether the police followed due process under the CrPC while seizing the journalist’s mobile phone.
B. Breach of Fundamental Rights
•Whether the seizure amounted to an infringement of press freedom under Article 19(1)(a) of the Indian Constitution.
•Whether the police action violated Article 21, which guarantees the right to privacy and protection against arbitrary state action.
C. Protection of Journalistic Sources
•Whether the forced seizure of a journalist’s device without legal authorization threatened the confidentiality of journalistic sources.
D. Misuse of Law Enforcement Powers
•Whether the police were misusing their authority to suppress independent journalism.
6. Court’s Observations and Judgment:
A.Press Freedom and Procedural Safeguards
•Justice P.V. Kunhikrishnan noted that journalists play a vital role in a democratic society and their rights must be protected against arbitrary state action.
•The court emphasized that police cannot seize a journalist’s phone without following proper legal procedures under the CrPC.
B. Necessity of Following Due Process
•The court held that any seizure must be conducted in accordance with Sections 91 and 102 of the CrPC.
•The failure to issue a seizure memo or record the reasons for seizure made the police action unlawful.
C. Confidentiality of Journalistic Sources
•The court recognized that journalists receive sensitive information from various sources, and unauthorized seizure of their devices may compromise their sources.
•This could lead to a chilling effect on investigative journalism.
D. Allegations of Harassment
•The court took note of the allegations of harassment and warned law enforcement agencies against using their powers to intimidate journalists.
E. Directions to the Police
•The Station House Officer (SHO) was directed to submit a detailed report explaining the circumstances under which the phone was seized.
•The court scheduled the next hearing for July 21, 2023, to further examine the matter.
7. Significance of the Judgment:
A. Reinforcement of Press Freedom
The judgment reaffirmed that journalists enjoy constitutional protection under Article 19(1)(a), and law enforcement authorities cannot arbitrarily interfere with their work.
B . Protection Against Arbitrary Seizure
The ruling emphasized that due process must be followed in all seizures, reinforcing accountability in police actions.
C. Safeguarding Journalistic Sources
By highlighting the confidentiality of sources, the court reinforced the right of journalists to protect their informants from state scrutiny.
D. Prevention of Police Misuse of Power
The judgment served as a warning against law enforcement excesses and established guidelines for the proper handling of such cases.
8. Analysis of Key Issues
Several key issues emerge from this case, each with broader implications for law and journalism:
1.Procedural Compliance: The case highlights the importance of adhering to CrPC procedures for search and seizure. Unauthorized seizures, especially of journalists’ devices, can lead to legal challenges and potential violations of individual rights. The court’s insistence on a statement from the police reflects a commitment to procedural justice.
2.Journalists’ Rights and Press Freedom: Journalists play a critical role in democracy, and their ability to protect sources is paramount. The seizure of Vishakan’s phone, even if indirectly related to a case, raises concerns about a chilling effect on journalism. It could discourage reporters from pursuing sensitive stories, fearing police interference. This case aligns with global debates on press freedom, particularly in contexts where media is scrutinized for political reasons.
3.Balance Between Law Enforcement and Individual Rights: The case illustrates the tension between police investigative powers and individual rights. While police have a duty to investigate crimes, they must do so within legal bounds, especially when dealing with professionals like journalists. The court’s intervention suggests a need for clearer guidelines to balance these interests, ensuring neither side is unduly prejudiced.
4.Potential Precedents and Future Implications: The outcome of this case could set a precedent for how similar situations are handled in the future. It may lead to judicial guidelines on the seizure of journalists’ devices, emphasizing the need for warrants, judicial oversight, and respect for press freedom. This could influence police practices across India, particularly in cases involving media personnel.
9. Comparative Context:
This case can be compared to other instances where journalists’ rights have been contested, such as the Vishaka & Ors vs State of Rajasthan & Ors, 1997 case, which established guidelines for workplace sexual harassment but also highlighted broader rights issues. While that case focused on gender equality, G. Vishakan vs State of Kerala focuses on press freedom, reflecting evolving legal concerns in India. Internationally, similar cases, such as those in the UK or US involving journalist source protection, underscore the global relevance of balancing law enforcement with media rights.
10. Unexpected Detail: Connection to Political Sensitivities:
An unexpected detail is the political context, with Skaria’s case involving allegations against a CPI(M) MLA, suggesting potential political motivations behind police actions. This adds a layer of complexity, as it raises questions about whether the seizure was part of a broader effort to suppress media scrutiny of political figures, a concern that could resonate with public debates on media freedom in India.
11. Conclusion:
The G. Vishakan v. State of Kerala & Ors. case serves as a landmark ruling in the protection of journalistic freedom and procedural integrity in law enforcement. The Kerala High Court’s observations reaffirm that:
•Press freedom is essential for democracy and must be protected from undue state interference.
•Police cannot seize journalistic materials arbitrarily without following the proper legal procedures.
•Confidential sources of journalists must be safeguarded to ensure the free flow of information.
•Law enforcement agencies must be held accountable for any procedural lapses or harassment.
This judgment strengthens the legal protections available to journalists in India, ensuring that the press can operate freely without fear of government overreach. The case underscores the importance of the rule of law, procedural fairness, and constitutional rights in modern democratic governance.
12. Key Citations:
• Journalist’s phone can’t be seized in a case without legal procedure: Kerala HC | HT
• Journalist’s Phone Can’t Be Seized By Police Without Legal Procedures – Kerala High Court – Trak.in
• “Journalist’s Phone Can’t Be Seized Without…”: Kerala High Court Case Mine
