The Supreme Court on Tuesday ordered the UP government to release arrested journalist Prashant Kanojia on bail but allowed the government to proceed against him under the FIR registered against him.

At yesterday’s hearing, the bench of Justices Indira Banerjee and Ajay Rastogi questioned the UP govt and asked it about what legal procedures were followed to effect the arrest of Kanojia. “Opinions may vary, he (Prashant) probably should not have published or written that tweet, but on what basis was he arrested,” the bench asked. ASG Vikramjit Banerjee appearing for the State informed the bench that Kanojia was arrested under Section 505 of the IPC.The bench said: “Liberty is a guaranteed by the Constitution and the fundamental rights are sacrosanct and non negotiable.” Banerjee replied that Kanojia’s arrest will amount to endorsement of his tweets.To which the bench said: “It will be treated as an affirmation of his personal liberty. Even we hear the onslaught on social media but does that imply it should lead to prison?” and ordered the release of Kanojia on bail.

It started with a tweet of Kanojia, a journalist, sharing a video of a woman allegedly claiming before reporters about love affair with the Chief Minister of Uttar Pradesh, Yogi Adityanath. The Uttar Pradesh Police taking suo moto cognizance under section 500 IPC and 66 of Information Technology Act, arrested the journalist from Delhi on 8^th of June, 2019 over the alleged tweet defaming the image of Yogi. There was a huge hue and cry on internet and media over the arrest of Prashant as notable constitutional experts termed the arrest as arbitrary, illegal and devoid of proper legal procedure. Later that day, UP Police released a press note claiming that the FIR has added few more charges against Prashant including 505 IPC and 67 of Information Technology Act in pursuant to older tweets of the journalist defaming religious gods and hurting religious sentiment.

The wife of Journalist, Jagisha Arora, moved Supreme Court on 10^th June 2019, placing a habeas corpus writ before the vacation bench. The Bench allowed urgent hearing and put up the mater for detailed hearing on 11^th June 2019. The matter was placed before the Justices Indira Banerjee and Ajay Rastogi for detailed hearing. The Additional Solicitor General Vikramjit Banerjee stated before the bench that the arrest was necessary to send a message that provocative tweets cannot be tolerated, the bench, however, rejected it and chose to bat for personal liberty. The counsel for Petitioner, Nitya Ramakrishnan stated that “the alleged post on its face value constitutes no criminal offence and the arrest is an unwarranted assault on the free speech and right to life”.

The ASG for UP further justified arrest through the earlier tweets of Prashant wherein he was allegedly made defamatory tweets against religious gods hurting the sentiment of the religious community and their practices. Therefore, the arrest was warranted under public mischief and section 505 of IPC is rightly added further. The Bench, however, not convinced with the contention of the counsel of state remarked “We do no appreciate his tweets. But can he be put behind bars for that.” The court could not find merit in an arrest of 11 days of Prashant and stated, “Is he an accused for murder?”.

The ASG for Uttar Pradesh reminded the court about the precedent of not entertaining habeas corpus once the judicial remand has been granted.  The Bench refused to hear the technical glitch and preferred that the Supreme Court has power under article 142 to do complete justice.

The Counsel for Petitioner had various other contention to call out illegality in the arrest such as:

• Criminal defamation under Section 500 IPC being non-cognizable offence, for which action can be taken only on a private complaint filed before 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/fraudulently/damaging a computer system”.
• The arrest did not follow the procedure as established in DK Basu case:

1. No transit remand obtained by UP Police.
2. The offences were blable and therefore police were bound to release him as per section 436 Crpc.

The bench after hearing the arguments on both the sides chose to bat for the personal liberty and freedom of speech. The bench allowed the habeas corpus and ordered an immediate release of Prashant Kannojia on bail.

-India Legal Bureau

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