A vacation bench, comprising Justices Indira Banerjee and Ajay Rastogi, said Right to Liberty, a fundamental right, is non-negotiable as it granted bail.
New Delhi: Freelance Journalist Prashant Kanojia, who was arrested by the Uttar Pradesh police for “defaming” Chief Minister Yogi Adityanath, must immediately be released on bail, the Supreme Court said on Tuesday.
Even though the UP Government submitted through Additional Solicitor General Vikramjit Banerjee that arrest was necessary “to send a message” that provocative tweets cannot be tolerated, the bench rejected it, choosing to bat for personal liberty.
The Supreme Court was hearing a petition by Mr Kanojia’s wife, challenging his arrest on Saturday. “Normally we don’t entertain these types of petitions. But a person can’t spend 11 days in jail,” the Supreme Court said.
A total of five people, including Mr Kanojia, were arrested in two days on charges of posting allegedly objectionable content about the Chief Minister. The arrests over the weekend sparked a huge debate on social media on freedom of expression in the country, with the Editors Guild of India terming the journalists’ arrests “high-handed and arbitrary”. The editors’ body had said it amounted to “authoritarian misuse of laws”.
“It is made clear this order is not construed as an approval of tweets,” the Supreme Court said, while hearing Jagisha Arora’s petition which was filed on Monday.
A vacation bench, comprising Justices Indira Banerjee and Ajay Rastogi, said Right to Liberty, a fundamental right, is non-negotiable as it granted bail.
“We may disapprove these tweets but we disapprove the denial of liberty,” the top court said.
“I believe in Constitution. I have fought this case. I am happy,” a visibly tired Jagisha Arora told reporters outside the Supreme Court, soon after the hearing.
Justice Banerjee asked how an arrest could be made over tweets, to which the public prosecutor replied that Kanojia had made provocative tweets against gods and religion on previous occasions and therefore offence of public mischief under Section 505 of IPC was added in the list of charges.
Expressing dissatisfaction over the prosecutor’s remarks, the bench said that the Magistrate’s order of remanding Kanojia till June 22 was “not appropriate”.
Kanojia was arrested Saturday last week for allegedly uploading a video on Twitter in which a woman is heard making some claims about Yogi Adityanath. An FIR was lodged against Kanojia at Lucknow’s Hazratganj police station under Sections 505 (statements conducing to public mischief) and 500 (defamation) of the IPC, and Section 67 of IT Act (publishing or transmitting obscene material in electronic form) on a complaint filed by Sub-Inspector Vikas Kumar.
The head of a Noida-based news channel that had broadcast the video shared by Kanojia was arrested, along with one of the editors of the channel. A fourth person named Raju Singh Yadav was arrested Monday morning for allegedly uploading morphed photographs of the CM and the Kanpur-based woman on Facebook.
Arora’s petition filed through Advocate Shadan Farasat has pointed out the following illegalities in the arrest:
- Criminal defamation under Section 500 IPC is a non-cognizable offence, for which action can be taken only on a private complaint filed before the Magistrate by the aggrieved person.
- Section 66 of the IT Act, the other provision mentioned in the FIR, has no relevance here, as it pertains to “dishonestly/fraudulenty damaging a computer system”.
- The arrest was made by police men in plain civil clothes, without serving an arrest memo, and without telling his wife the reasons for arrest and therefore violated the mandatory procedure before arrest laid down by SC in D K Basu case.
- There was no transit remand obtained by UP Police for taking Kanojia from Delhi. He was not produced before the local Magistrate before taking him out of State.
- The offences are in any case bailable and therefore police was bound to release him as per Section 436 CrPC. The continued detention is therefore illegal.
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