The Supreme Court on Tuesday ordered the immediate release of journalist Prashant Kanojia on bail, saying it had no intention of sitting back and watching a citizen being deprived of his personal liberty for his social media posts.
Mr. Kanojia’s family claims that he was picked up from his home on June 8 by plainclothesmen and taken to an undisclosed location allegedly for having shared on social media a video of a woman claiming she had sent a marriage proposal to Uttar Pradesh Chief Minister Yogi Adityanath.
“Arrest? Arrest? A citizen’s right to liberty has been infringed. We have gone through the records... Yes, these sort of tweets should not be made... But to arrest him? Liberty guaranteed under fundamental rights is sacrosanct. Whatever it is, he [Kanojia] has to be released on bail immediately,” Justice Indira Banerjee said, addressing Additional Solicitor General (ASG) Vikramjit Banerjee who was appearing for the Uttar Pradesh government.
The court called the action taken by the Uttar Pradesh government a “glaring case of deprivation of liberty” in which a citizen had been sent to custody for 13/14 days.
When the ASG stated that Mr. Kanojia’s release would be construed by the public as an endorsement of his social media posts, Justice Banerjee shot back, saying, “Why should it? It will be treated as an endorsement of his right to personal liberty.”
“We are not appreciative of the manner of his tweets, but we are bothered about his arrest and incarceration... We live in a country where there is a Constitution. Proceed against him in accordance with law, but should he be behind bars?” Justice Banerjee observed.
Mr. Banerjee countered that free speech is not “absolute” and another's right cannot be trampled upon. “With great liberty comes great responsibility,” he said.
To this, Justice Banerjee said free speech and criticism on social media cannot be choked by incarceration. “Even we take in a lot from social media, but does that mean incarceration? Show your magnanimity,’’ she told the State.
To this, the ASG said, “This order of release should not be seen as a endorsement of his tweets.”
Justice Banerjee responded, “It is very wrong to think whatever uploaded will be swallowed by the public. People are educated.”
‘Not an endorsement of his tweets’
However, the court later clarified in its order that the journalist’s release should not be construed as an “endorsement” of his tweets, but as a firm stand taken by the highest court to protect personal liberty. It said fundamental rights of free speech and personal liberty were “non-negotiable”.
“We need not comment on the nature of the posts/tweets for which the action has been taken. The question is whether Prashant Kanojia ought to have been deprived of his liberty for the offence alleged. The answer to that question is prima facie in the negative," it recorded in the order.
The court said the State would follow procedure as per law in Kanojia's case. “We direct that the petitioner's husband [Kanojia] be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate. It’s made clear that this order is not be construed as an approval of his tweets/posts in the social media. This order is passed in view of the excessiveness of the action taken. Needless to mention that the proceedings will take their own course in accordance with law,” it said.
West Bengal case
The U.P. government then referred to how the court, in another case on May 14, asked BJP Yuva Morcha leader Priyanka Sharma to apologise on her release from custody for posting a morphed image of West Bengal Chief Minister Mamata Banerjee on social media.
Justice Banerjee was heading that Bench too.
“That was on entirely different facts. It was a photo,” Justice Banerjee replied.
The hearing on Tuesday was based on habeas corpus petition moved by Mr. Kanojia’s wife, Jagisha Arora, represented by advocate Nitya Ramakrishnan, under Article 32 of the Constitution to know the whereabouts of her 26-year-old husband.
During the hearing, the State informed the Vacation Bench of Justices Banerjee and Ajay Rastogi that Mr. Kanojia was remanded to judicial custody till June 22 in Lucknow.
The ASG argued that a habeas corpus plea would not lie before the apex court as the accused had already been produced before the jurisdictional court and remanded in custody through a judicial order. The State government said Ms. Arora should ideally challenge the remand order in the Allahabad High Court.
But the court differed with the government, saying Article 32 enshrined a fundamental right. The Bench threatened to use its extraordinary powers under Article 142 of the Constitution to do complete justice in the Kanojia case. The Bench repeatedly expressed its incredulity at the “harshness” with which Mr. Kanojia was dealt with. “Have you ever come across a 11-day remand?” Justice Rastogi asked.
“Is this a case of murder? Do you expect him to stay behind bars and challenge the remand order? Not very fair,” Justice Banerjee remarked.
The ASG countered, saying the “law is very clear, he [Kanojia] can challenge the remand order.”
Justice Banerjee retorted, “The law is very clear indeed... A person cannot be deprived of his personal liberty. A person can't spend 11 days behind bars for putting up posts/tweets on social media.”
U.P. says it’s not a personal vendetta
The U.P. government maintained that the action against Mr. Kanojia was not a part of a “personal vendetta”.
ASG Banerjee said the tweet on Mr. Adityanath was not a one-off incident as portrayed by critics. Mr. Kanojia had been posting a series of “very strong, very, very inflammatory” remarks on social media that ranged from being casteist to deprecatory of gods and goddesses. That was why he was booked under Section 505 (for public mischief) too, he reasoned.
In her petition, Ms. Arora argued that the Uttar Pradesh Police had no role to file an FIR for criminal defamation against her husband. It was up to the aggrieved person to file a complaint. Besides the offences of criminal defamation and public mischief under the IPC, Mr. Kanojia had also been booked under Sections 66 and 67 of the Information Technology Act.
She said the men who came to take her husband away neither introduced themselves nor told the family where they were taking him. They did not even produce an arrest memo. No transit remand was applied for, though Mr. Kanojia was arrested in Delhi and believed to be taken to Lucknow, the petition said. The offences under which Kanojia was booked were bailable, yet he was denied bail.
Section 505 of IPC (statements conducing public mischief) and Section 67 of the Information Technology Act (publication or transmission of obscene material in electronic form) require extraordinary reasons to be put down in writing for arrest.
“Sharing of a video available in public domain by a person proclaiming love for even a public official cannot be prima facie called a rumour much less one which can disturb public tranquillity and similarly the same is not ‘lascivious or appeals to prurient interests’,” Ms. Arora said.