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Above: Prashant Kanojia with his wife Jagisha Arora, who moved the SC against his arrest/Photo courtesy: Facebook

In a significant judgment, the Supreme Court asked the UP government to release a journalist held for posting comments about the UP CM Yogi Adityanath and said fundamental rights are “non-negotiable”  

By Atul Chandra in Lucknow

Five days after he was arrested for an objectionable post on social media about UP Chief Minister Yogi Adityanath, freelance journalist Prashant Kanojia was released from Lucknow Jail on June 12 following the Supreme Court’s strong indictment of the government’s action. Liberty, the apex court said, was “sacrosanct and non-negotiable” as it made a strong argument for restraint on the part of the government in dealing with social media posts.

Kanojia was arrested by four policemen in plainclothes from the cyber cell of Lucknow Police from his Delhi home on June 8 on charges of defamation and under Section 66A of the Information Technology Act and was brought to the state capital. The FIR registered by sub-inspector Ashok Gupta of Hazratganj police station said that Kanojia had shared a video about the chief minister with defamatory comments. This, the FIR said, was intended to malign the image of Yogi Adityanath.

The video, with Kanojia’s alleged inappropriate tweet, showed a Kanpur-based woman talking to reporters about writing a love letter to the chief minister. Subsequently, four other journalists were arrested on similar charges. One journalist, Anshul Kaushik, was arrested for sharing or airing content defamatory of the UP CM even as the Supreme Court advised the UP government to show “magnanimity”. Kaushik works for Hindi TV channel Nation Live. Two other staffers of the channel—Anuj Shukla and Ishika Singh—along with the channel head Ajay Shah were arrested immediately after Kanojia for airing the defamatory news.

Expressing surprise over the arrest, the Supreme Court bench of Justices Indira Banerjee and Ajay Rastogi said: “Liberty has been infringed. We have gone through the record. These things (social media post) should not have been said but under what provision has he been arrested?”

Kanojia’s wife, Jagisha Arora, challenged his arrest and incarceration by filing a plea under Article 32 of the Constitution. “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 bench said and added: “The answer to that question is prima facie in the negative.” The judges said that the fundamental rights guaranteed under the Constitution and in particular, Articles 19 and 21 are “non-negotiable”.

Additional Solicitor General Vikramjit Banerjee argued on the maintainability of the petition for different reasons, but the Court set aside the contention. “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,” the judges countered. The Court ordered the immediate release of Kanojia “in view of excessiveness of the action taken”, even though it said that the “order should not be construed as an approval of posts/tweets in the social media”.

In an important remark, the judges said that the government should not take harsh actions like arrests for social media posts. “We also take a lot from social media. We also feel the brunt of social media. Sometimes it is just and sometimes it is unjust but that does not mean it should lead to incarceration. Show your magnanimity,” the judges said. “Principle of forgiveness should be followed for citizens.”

The additional advocate general said there was wide reach and consumption of social media with tremendous impact and made a case for discouraging people from posting objectionable material on the sites. The judges said that even though Kanojia’s tweets cannot be appreciated, his arrest was not needed and said that he can be prosecuted under appropriate law.

The state government, however, is in no mood to show either magnanimity or forgiveness towards the four TV journalists, making it difficult for the media to discharge its duties. While Kanojia got relief from the Supreme Court, the four TV journalists were not so lucky as their bail applications were rejected by a lower court.

The Editors Guild of India called the arrests “an effort to intimidate the Press” and said that the law of defamation was being misused. The Guild said: “Whatever the accuracy of the woman’s claims, to register a case of criminal defamation against the journalists for sharing it on social media and airing it on a television channel is a brazen misuse of law. To give the police powers to arrest, provisions of Section 66 of the IT Act have also been added.”

This is not the first time that someone has been arrested for objectionable or defamatory posts against Adityanath. In November 2018, five Muslims were arrested for a Facebook post on the UP chief minister and the RSS. The arrests created such fear that several families were said to have fled the village. So to expect “magnanimity” from the Adityanath government would be asking for too much. In 2015, a 19-year-old Class 12 student from Bareilly was jailed for posting a comment on Facebook and attributing it to Samajwadi Party leader Azam Khan.

But UP is not alone. In 2012, Jadavpur University professor Ambikesh Mohapatra and his neighbour were arrested for drawing cartoons of West Bengal Chief Minister Mamata Banerjee with “derogatory” messages. The cartoon showed Mamata in conversation with Dinesh Trivedi alluding to the latter’s replacement as railways minister.

A newspaper report said that in 2017 and 2018, “at least 50 people were arrested across India for posts on social media. Some spent half-a-year behind bars, a few were in jail for roughly a month, while others were let off within a week”. With Section 66 A of the IT Act in place, freedom of expression has become a casualty. But with the number of mobile internet users shooting up, the future is likely to see more such instances of an intolerant state. And the pole position could well go to UP.

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