Freelance journalist Prashant Kanojia, who was arrested by the Uttar Pradesh government for posting derogatory tweets about Gods, Goddesses and inflammatory posts on UP CM Yogi Adityanath, has been asked to be released by the apex court. The Supreme Court has asked the UP government to show ‘magnanimity’ in releasing the controversial journalist Prashant Kanojia.
Justice Banerjee: Liberty is a guaranteed by the Constitution and the fundamental rights are sacrosanct and non negotiable.
— Bar & Bench (@barandbench) June 11, 2019
Hearing the habeas corpus petition filed by Kanojia’s wife, Jagisha Arora, seeking his release, the vacation bench of Justice Indira Banerjee and Justice Ajay Rastogi passed the order. The bench observed that the arrest and remand were illegal, violating the principle of ‘Liberty’ enshrined in the constitution.
Representing the prosecution, Additional Solicitor General Vikramjit Banerjee asserted that the arrest was necessary “to send a message” that inflammatory tweets cannot be permitted. However, the bench rejected it, opting for the primacy of an individual’s personal liberty.
Advocate Nitya Ramakrishnan, the counsel for the defendant claimed that the alleged post uploaded by Prashant constitutes no prima facie criminal offence and that his arrest was totally unwarranted and an attack on free speech and right to life.
The Additional Solicitor General appearing for UP Government argued that the arrest was not solely for comments against the CM. The ASG cited several tweets posted by Kanojia in the past which were insulting gods, religious sentiments and people from particular castes and communities. He asserted that his arrest was made for public mischief, and Section 505 IPC was added in the FIR later.
However, the bench remained unconvinced. Justice Banerjee asked, “We do not appreciate his tweets. But can he be put behind the bars simply for that?” The Court also expressed its disbelief at 11 days remand ordered by the Magistrate. Justice Rastogi argued, “Is he accused of murder?”
The ASG responded back claiming that there were SC precedents that remand orders cannot be challenged in habeas corpus petition and that the appropriate remedy was to seek bail from lower courts. ASG mentioned that the remand orders have been passed by the Magistrate and hence Article 32 shouldn’t be entertained. But the court didn’t budge at this technical objection. It mentioned Article 142 of the Constitution that grants SC powers to do “complete justice”.
ASG Banerjee: His release will be seen as an endorsement of his tweets
Justice Banerjee: It will be treated as an endorsement of his personal liberty. Even we hear the brunt on social media but does that mean it should lead to incarceration?
— Bar & Bench (@barandbench) June 11, 2019
On Saturday, the UP police officials picked up Prashant Kanojia after a case was registered at Hazratganj police station, Lucknow. The arrest was made after he was accused of spreading rumours on social media. The police officials had confirmed that the accused has confessed to his crime.
A case was registered under IPC section 500 (defamation), 505 (statements conducing to public mischief) and section 67 of the IT act (publishing or transmitting obscene material in electronic form).
The accused Prashant Kanoja is notoriously known in social media circles for spreading fake news, rabid anti-Hindu hate especially against Dalits by making atrocious statements. Prashant Kanoja has a history of making vile comments against Dalits and Hindu saints. He had even referred to Dalits as ‘animals with no brains’.
The Court’s decision comes in stark contrast to the case in which a BJP youth wing leader Priyanka Sharma was arrested for sharing an innocuous meme on West Bengal CM Mamata Banerjee and sent on remand for 14 days. The Court had then asked Sharma to tender an apology to the CM Mamata Banerjee for sharing the meme.
Justice Indira Banerjee had then contended that Freedom of Expression is non-negotiable, but it cannot encroach upon another person’s rights. Although the court later dispensed with the requirement of her apology to get bail, she was still asked to tender her apology after her release.
