Right to liberty not negotiable, release journalist, Supreme Court tells UP govt

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Jagisha Arora, wife of Prashant Kanojia takes part in a protest with media members in New Delhi. (Reuters)

Ruling on Kanojia’s wife Jagisha Arora’s petition for writ of habeas corpus, the bench said: “We direct that the petitioner’s husband be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate. It is made clear that this order is not to be construed as an approval of the posts/tweets in the social media. This order is passed in view of the excessiveness of the action taken.” It said the State of Uttar Pradesh was free to proceed against Kanojia “in accordance with law”.

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“We need not comment on the nature of the posts/tweets for which the action has been taken. The question is whether the petitioner’s husband, 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,” the bench said.

Appearing for UP, Additional Solicitor General Vikramjit Banerjee said the petitioner should have first approached the High Court for relief instead of coming straight to the Supreme Court with a petition under Article 32.

But the bench did not agree: “As a matter of self-imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32, which is itself a fundamental right, cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband, Prashant Kanojia, would be in custody for about 13/14 days for putting up posts/tweets on social media. We are not inclined to sit back on technical grounds. In exercise of power under Article 142 of the Constitution of India, this Court can mould the reliefs to do complete justice.”

Prashant Kanojia was arrested for allegedly making “objectionable comments” against UP Chief Minister Yogi Adityanath on social media. (PTI)

During the hearing, Justice Banerjee told the ASG “we do not appreciate the tweets, but the question is can you put him behind bars”. The judges said their concern was about deprivation of liberty: “Sometimes we suffer the brunt of social media sometimes it is just and sometimes unjust. Question is only deprivation of liberty.”

Asking the UP police to show magnanimity, the bench noted that not everything put on social media is correct and the state could proceed with the trial even after bail. The ASG said the order should not be not seen as a endorsement of Kanojia’s tweets.
Justice Banerjee said it will be treated as an endorsement of his right to personal liberty. She also remarked that “people are educated” and it will be wrong to think that they will lap up whatever is uploaded on the social media.

When the ASG questioned the petitioner not moving the High Court, Justice Banerjee said “the right to liberty of a citizen has been infringed….These sort of tweets should not be made, but arrest?… Court does not ordinarily entertain Article 32 petition… But when something is so glaring, can court fold its hands and say go to High Court”.

Justice Rastogi sought to know why Section 505 (statements conducting to public mischief) of IPC had been added to the FIR. The ASG said it was not just about one tweet but a series of them, adding that the tweets were not only about political figures but also referred to gods and goddesses and were “very inflammatory”.

The judges also took exception to the remand order. Justice Rastogi said: “He’s remanded for 11 days… Have you ever come across a 11-day remand?”. Justice Banerjee added “Is this some murder charge?”.