New Delhi, 28 Aug

The Supreme Court on Thursday granted interim protection for four weeks to journalist Abhisar Sharma in an FIR lodged against him in Assam over a video post allegedly criticising the state's policies.

A bench of Justices MM Sundresh and N Kotiswar Singh refused to entertain his prayer challenging the FIR lodged against him in Assam and asked him to approach the Gauhati High Court.

It, however, issued notice to the Centre seeking its response on his prayer challenging the validity of Section 152 of the Bharatiya Nyaya Sanhita (BNS), which deals with acts endangering the sovereignty, unity and integrity of India.

"In so far as the challenge to the FIR is concerned, we are not inclined to entertain. However, we are inclined to give interim protection to the petitioner (Sharma) for a period of four weeks so as to enable him to approach the high court," the bench said.

Senior advocate Kapil Sibal, appearing for Sharma, said Section 152 of the BNS seems to have become an "omnibus provision" which can be invoked against anyone.

The bench asked him to challenge the FIR before the high court. Sibal said the top court has already interfered in a similar matter which was pending.

"We will give you protection, you go there (high court)," the bench said, adding, "Why are you bypassing the high court?"

Sibal said another FIR might be lodged against the petitioner. The bench observed another FIR might be lodged even if the apex court would entertain the plea.

Sibal said the apex court was already dealing with a separate plea raising similar issue and "some uniformity should be there".

"We will protect you," the bench said, while asking the petitioner to approach the high court.

"This is not fair. What has the journalist done?" Sibal said, adding, "The society looks up to this court. Please don't do this... What message are we sending".

The bench issued notice on the plea only with respect to the challenge to the vires of the Act.

The plea, filed through advocate Sumeer Sodhi, said the FIR was registered on a complaint by a private person against a video posted by Sharma on his YouTube Channel in which he questioned the wisdom of allotting 3,000 bighas of tribal land to a private entity and "exposed government decisions that affect tribal land rights, environmental concerns, and democratic accountability".

It said the FIR was lodged on 21 August this year for alleged offences, including under Section 152 of the BNS. It said the video uploaded by the petitioner stems from a recent Gauhati High Court proceeding with respect to such allotment.

"The petitioner's statements are not fabricated assertions but grounded in verifiable facts which were supported by original video clips of speeches made by the chief minister of Assam. The criticism of government policies, functioning, or political strategies do not amount to an offence under Section 152 BNS," the plea submitted.

It said in a democracy, elected representatives remain open to public scrutiny and criticism and at no point does Sharma call for violence, insurrection, or public disorder.

"The present FIR is a classic case of misuse and abuse of Section 152 BNS to stifle dissent and journalistic freedom. Criminal prosecution under a provision carrying life imprisonment, against a journalistic video is grossly inappropriate to be a constitutional affront," the plea said.

The plea submitted that Section 152 of the BNS is a "reincarnation" of the sedition provision (Section 124-A of the erstwhile Indian Penal Code), which is under judicial scrutiny by the apex court "due to its vagueness".

The plea said the top court had earlier observed that authorities would restrain from registering any FIR under Section 124-A of IPC or continue with pending investigation under this provision.

"The instant case is not an isolated instance but forms part of a larger pattern of repeated misuse of criminal provisions akin to sedition against journalists and critics of the government," it submitted.

The plea claimed that journalists across the country were subjected to FIRs and prosecutions for merely reporting or commenting on governmental policies and political developments.

The plea said the petitioner merely exercised his fundamental right to freedom of speech and press by reporting and critically commenting on political speeches already in the public domain.