Gauhati High Court Ruling on Journalist’s Freedom of Expression

Agencies & KalimNews, August 19, 2025 : The Gauhati High Court has held that a journalist who is expressing fear regarding illegal immigration, religious fundamentalism, militancy, or demographic terrorism against indigenous communities cannot be presumed to have sought to promote enmity between classes or communities or incite violence.

The judgment was delivered by Justice Pranjal Das, who emphasized that the core responsibility of journalism is reporting social issues of significance, no matter how controversial they may be. It was on this premise that the court upheld a 2016 FIR lodged against journalist Kongkon Borthakur of Dainik Janmabhumi under Sections 153A and 34 of the IPC.

The FIR had been registered on November 11, 2016, by Farid Islam Hazarika, President of the All Assam Muslim Students’ Union (AAMSU), Sivasagar. Hazarika claimed that the report of Borthakur had perturbed communal peace and challenged harmony among demographic groups.

The report in question had written about issues pertaining to religious fundamentalism, illegal migration from one country, the demographic issue it created, and the militant activities associated with such fundamentalism.

Borthakur objected to the FIR, claiming his reporting was done after ground-level research and the charges did not meet the legal criteria of Section 153A. The court concurred with this argument, observing that the evidence indicated that the journalist’s mind was not to cause disharmony but to educate the people on important issues. “When put to the test on the anvil of Section 153A IPC, it cannot be said that the petitioner had intended to create enmity or induce violence,” the bench held.

Introduction

The case of Kongkon Borthakur vs. The State of Assam and Anr. came before the Gauhati High Court, where an important question was raised regarding the delicate balance between a journalist’s duty to highlight pressing social issues and the alleged misuse of penal provisions to stifle free expression.

At the heart of the dispute lay a news report authored by journalist Kongkon Borthakur, published in the Assamese daily Dainik Janmabhumi, which discussed matters of illegal migration, religious fundamentalism, militant activities, and demographic threats faced by indigenous communities of Assam.

The controversy began when, on November 11, 2016, Farid Islam Hazarika, the President of the All Assam Muslim Students’ Union (AAMSU), Sivasagar unit, lodged an FIR under Section 153A read with Section 34 of the Indian Penal Code, alleging that the report disturbed communal harmony and was designed to create enmity between demographic groups.

The journalist, facing accusations of promoting disharmony and hostility among religious and social groups, moved the Gauhati High Court, seeking to quash the proceedings by arguing that the FIR did not disclose the essential ingredients of the offence alleged.

Justice Pranjal Das of the High Court undertook a careful examination of the case and ultimately ruled in favor of the journalist, quashing the FIR while affirming that raising such critical issues falls squarely within the core duty of journalism and cannot, by itself, be construed as incitement or an attempt to promote enmity.

Arguments Presented by the Petitioner Journalist

The petitioner, journalist Kongkon Borthakur, advanced strong submissions before the court highlighting both constitutional guarantees and the failure of the FIR to disclose any prima facie offence.

He argued that the impugned report was based entirely on ground-level research and had no ulterior motive to vilify any specific religious or ethnic community. The purpose of his publication, as contended, was to draw public attention to the serious social and demographic issues arising from unchecked illegal migration, the rise of religious fundamentalism in certain areas, and the militant tendencies that could threaten peace and indigenous rights in Assam.

He emphasized that Section 153A IPC, which criminalizes promoting enmity between groups on the basis of religion, race, language, or other grounds, requires the existence of a specific mens rea—that is, an intention to create disharmony or incite violence.

According to the journalist, his report contained no such intention or expression; rather, it was an exercise in the fulfillment of his professional duty as a journalist. The petitioner further asserted that suppressing such reporting under the threat of criminal prosecution would amount to a direct assault on the freedom of the press guaranteed under Article 19(1)(a) of the Constitution of India.

He pointed out that free speech is not only an individual right but also a tool of democracy, essential for ensuring accountability and transparency. The FIR, he argued, was not only frivolous but also motivated by a desire to silence criticism and inconvenient truths.

The petitioner’s counsel therefore prayed for the quashing of the FIR on the grounds that it was devoid of merit and was nothing more than an attempt to misuse criminal law to muzzle journalistic freedom.

Arguments Presented by the Respondents

On the other hand, the State as well as the complainant sought to defend the registration of the FIR. The complainant, Farid Islam Hazarika, alleged that the contents of the journalist’s article had the effect of disturbing communal harmony and could potentially pit one group against another.

According to the FIR, the report unfairly portrayed certain sections of the population as illegal migrants, fundamentalists, or militants, which, in the view of the complainant, was a deliberate attempt to stigmatize communities and disturb peace in the region.

The prosecution argued that journalists, while enjoying the right to freedom of speech, also have a corresponding duty to ensure that their writings do not fuel prejudice, hatred, or disharmony.

They contended that unchecked publications alleging religious radicalization and demographic threats could have a snowball effect in a sensitive region like Assam, which has historically witnessed tensions between communities.

The respondents submitted that whether or not the journalist harbored an actual intent to promote enmity was a matter of trial and evidence, and therefore the FIR ought not to be quashed at the threshold.

They further emphasized that the journalist’s article, by linking migration and militancy with specific groups, had crossed the thin line between fair reporting and provocative commentary. Consequently, the respondents urged the court to dismiss the petition and allow the legal process to unfold.

Court’s Observations and Judgment

The Gauhati High Court, presided over by Justice Pranjal Das, carefully analyzed the rival submissions as well as the contents of the news report that had triggered the controversy.

At the outset, the bench made a crucial observation: that the report in question was clearly a result of ground-level research undertaken by the journalist and was not a casual or reckless expression of opinion.

The court then examined the provisions of Section 153A IPC, which criminalizes the promotion of enmity between different groups on the grounds of religion, race, place of birth, residence, language, or any other similar basis, and prohibits acts prejudicial to the maintenance of harmony.

Justice Das stressed that the essential ingredient of Section 153A is the existence of mens rea, i.e., an intent to cause disharmony, enmity, or ill-will among different groups.

The court emphasized that upon a prima facie reading of the report, there was nothing to suggest that the journalist had made derogatory remarks against any specific religious or ethnic group. Instead, the article was focused on raising issues of illegal migration, religious fundamentalism, militant activities, and demographic threats, which, in the opinion of the court, were matters of serious public concern.

Importantly, Justice Das observed that, “it is the core duty of journalism to raise burning issues which matter to society. Raising concerns about illegal migrants, religious fundamentalism, militant activities, and demographic threats to the indigenous people cannot, by itself, be construed as an attempt to create enmity between groups or to incite violence.”

The court further observed that penal provisions like Section 153A IPC must not be invoked mechanically against journalists for expressing inconvenient truths or unpopular opinions. Doing so would have a chilling effect on the freedom of the press and would discourage journalists from reporting on sensitive but significant issues.

The High Court made it clear that while freedom of speech is not absolute and is subject to reasonable restrictions, the threshold for criminal liability under Section 153A is high, and mere discussion of contentious social issues cannot meet that threshold.

After considering the totality of the circumstances, the court concluded that the FIR against the journalist did not disclose the commission of any offence and was therefore liable to be quashed. Accordingly, the High Court allowed the petition and quashed the criminal proceedings in their entirety, bringing much-needed relief to the journalist.

In its judgment, the court struck a crucial balance between protecting free expression and safeguarding communal harmony. While acknowledging the need for caution in reporting on sensitive issues, the court decisively held that genuine journalistic work done in good faith, even if uncomfortable for certain sections, cannot be criminalized merely because it raises inconvenient questions.

This ruling, therefore, is not only significant for the individual petitioner but also sets a wider precedent for press freedom in India, especially in regions marked by complex demographic and communal dynamics. (Courtesy & Source: The Legal Affair)