11JUNE2019
STATE OBSERVER
A vacation Bench, comprising Justices Indira Banerjee and Ajay Rastogi, said the right to liberty, a fundamental right, is non-negotiable.
The Supreme Court on Tuesday ordered the immediate release of journalist Prashant Kanojia on bail, saying it had no intention to sit back and watch a citizen deprived of his personal liberty for his tweets.
Mr. Kanojia’s family claims he was picked up from his home on June 8 by plainclothesmen and taken to an undisclosed location for allegedly sharing a video on Twitter and Facebook of a woman claiming she 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 addressed Additional Solicitor General (ASG) Vikramjit Banerjee, appearing for the Uttar Pradesh government.
When the ASG objected that Mr. Kanojia’s release would be construed by the public as an endorsement of his tweets, 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 what we are bothered about is why he was arrested… 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.
But Mr. Banerjee countered that free speech was not “absolute” and another’s right could not be trampled upon. “With great liberty comes great responsibility,” he said.
To this, Justice Banerjee replied how free speech and criticism on social media could not be choked by incarceration.
“Even we take in a lot from social media, but does that mean incarceration? Show your magnanimity,” Justice Banerjee told the State.
“This order of release should not be seen as a endorsement of his tweets,” Mr. Banerjee persisted.
“It is very wrong to think whatever uploaded will be swallowed by the public. People are educated,” Justice Banerjee responded.
However, the court later clarified that its order for his immediate release should not be construed as an “endorsement” of Mr. Kanojia’s tweets, but as a firm stand taken by the highest court to protect the personal liberty of a citizen. The court said fundamental rights of free speech and personal liberty were “non-negotiable”.
The court said the State would follow the procedure as per law in Mr. Kanojia’s case.
“We direct that the petitioner’s husband (Prashant Kanojia) 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 be construed as an approval of his tweets/posts in the social media. This order is passed only in the face of the harshness of the order,” the Supreme Court ordered.
The petitioner, Mr. Kanojia’s wife Jagisha Arora, represented by advocate Nitya Ramakrishnan, had directly moved the apex court with a habeas corpus petition to know the whereabouts of her 26-year-old husband.
On Tuesday, the State informed a Vacation Bench of Justices Indira Banerjee and Ajay Rastogi that Mr. Kanojia had been remanded in judicial custody till June 22 in Lucknow.
The ASG argued that a habeas corpus plea would not lie before the Supreme Court as the accused was already produced before the jurisdictional court and remanded to 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, even threatening to use its extraordinary powers to do complete justice under Article 142 of the Constitution. The Bench further 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 the “law is very clear, he (Mr. Kanojia) can challenge the remand order”.
Not personal vendetta: U.P. govt.
The Uttar Pradesh government maintained that the action against Mr. Kanojia was not part of a “personal vendetta”.
Mr. 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 which range from being casteist to derogatory towards gods and goddesses. That is why Mr. Kanojia was booked under Section 505 (for public mischief), the law officer reasoned.
