SC Upholds Free Speech Rights, Orders Immediate Release of Prashant Kanojia

The vacation bench of Justices Indira Banerjee and Ajay Rastogi observed that Kanojia's arrest and remand were illegal and went against personal liberty.

New Delhi: The Supreme Court on Tuesday ordered the immediate release on bail of freelance journalist Prashant Kanojia, who was arrested on Saturday afternoon for social media posts about Uttar Pradesh chief minister Adityanath.

Once his bail bond is presented before the magistrate in Lucknow, Kanojia will be released, presumably on Wednesday morning.

The vacation bench of Justices Indira Banerjee and Ajay Rastogi observed that Kanojia’s arrest and remand were illegal and went against personal liberty, LiveLaw reported. The court also turned down the state’s submission that the petitioner should approach the lower court or high court for bail.

The order came in a habeas corpus petition filed by Kanojia’s wife, Jagisha Arora, seeking his release. Arora’s lawyers, Nitya Ramakrishnan and Shadan Farasat, argued that the FIR against Kanojia has been filed under Sections 500 of the IPC and 66 of the Information Technology Act – both bailable offences.

Their petition laid out procedural lapses on the part of the police, including not presenting Kanojia before a magistrate and no arrest memo being prepared.

Two sections were later added to the charges, which were not on the original FIR – IPC Section 505 and IT Act Section 67. Arora’s petition says that “neither of these sections are even prima-facie made out”.

20683_2019_4_1_14604_Order_11-Jun-2019 by The Wire on Scribd

Kanojia, who was earlier a staff reporter at The Wire Hindi, was picked up from his residence in Delhi by plain-clothed officials of the UP police. In a statement on Saturday, the state police detailed the charges and said that Kanojia had accepted his crimes after “strict questioning”.

Also read: Journalists’ Bodies Condemn Arrest of Three Journalists for ‘Defaming’ Adityanath

According to the statement, Kanojia made “obscene comments” and “spread rumours” on social media and his arrest was necessary “to send a message” that this would not be tolerated.

Appearing before the court for the Uttar Pradesh government, additional solicitor general Vikramajit Banerjee said that Kanojia’s arrest was not just for his comments against the state chief minister.

When Justice Rastogi asked on what basis Section 505 of the IPC had been invoked – a serious charge which involves the accused spreading rumours with a view to inciting violence and disaffection – Banerjee cited a number of tweets by the journalist that were “about gods and goddesses, tweets not restricted to political figures. His tweets are very strong, very inflammatory,” Bar&Bench reported.

Curiously, all of these “inflammatory” tweets were posted by Kanojia well before the tweet that finally led to his arrest, and some date as far back as 2016.

The bench rejected the state’s stand, which it said was against personal liberty. The court said that while it “did not appreciate” Kanojia’s tweets,” it questioned whether he could be “put behind bars for that”.

“The court need not comment on the contents of the tweets. The question is, should the petitioner have been deprived of his liberty over them. The answer to that is prima facie in the negative. Fundamental rights under Article 19 and 21 are non-negotiable.”

Justice Rastogi further questioned the 11-day remand order, asking: “Is he accused of murder?”

According to The Hindu, the ASG asserted in court that Kanojia’s release would be “construed as an endorsement of his tweets”.

Justice Banerjee responded, “Why should it? It will be treated as an endorsement of his right to personal liberty.”

Arora’s lawyer Ramakrishnan informed the court: “The alleged post on its face value constitutes no criminal offence and [the arrest] is an unwarranted assault on the right to free speech and right to life”.

Also read: Editorial: The Yogi as Commissar

Kanojia had recently posted on Twitter and Facebook a video of a woman speaking to various TV channels about wanting to marry Adityanath. She claimed in the video that she had been conversing with the chief minister for a long time over video chat and that now she wanted to know if he was willing to spend his life with her.

The journalist posted the videos with his own comment, mocking the chief minister.

Arora’s petition argued that “posting a video clip in the public domain, which has been carried as a news item in major media outlets is no offence. Furthermore, to add a comment by way of a hackneyed one-liner “love cannot be hidden” is hardly defamatory or a crime warranting police action.”

The UP police’s heavy-handed approach has been widely criticised, with a number of journalists’ groups issuing statements condemning the arrest. A protest march was held at the Press Club in New Delhi on Monday afternoon against the action taken.