SC pulls up UP govt for arrest, gives scribe bail

New Delhi: Holding liberty to be sacrosanct and non-negotiable, the Supreme Court on Tuesday ordered a freelance journalist’s “immediate” release from judicial custody after his objectionable social media posts against chief minister Yogi Adityanath landed him in a jail in Uttar Pradesh.

Deprecating the severity of the action in arresting the Delhi-based journalist for sharing a social media post, the vacation bench of Justice Indira Banerjee and Justice Ajay Rastogi granted bail to the accused saying, “This order is passed in view of the excessiveness of the action taken” by the Uttar Pradesh police

“The fundamental rights guaranteed under the Constitution, in particular Articles 19 and 21, are non-negotiable,” said an apparently anguished court pulling up the UP government’s action saying, “We disapprove of the deprivation of liberty.”

Expressing concern over the arrest of the scribe, Justice Banerjee said, “An unduly harsh action could be counterproductive. We live in a country which has a written Constitution, which is perhaps one of the best written constitutions.”

Prashant Kanojia as picked up by the Uttar Pradesh police from outside his residence in Delhi’s Prasad Nagar on June 8 after an FIR was registered in Lucknow on June 7 under Section 500 IPC, 505 IPC and section 67 of Information Technology Act, 200. He had shared a video of a woman claiming that she had sent UP CM a marriage proposal.

The top court clarified that granting bail to Mr Kanojia, who was sent to judicial custody by a UP court, cannot be construed as approval of his posts or tweets.

The court said that the proceedings against the journalist will go on as per the law.

“May be, we don’t appreciate these tweets, but the question is whether he should be behind bars for these social media posts,” the bench said after perusing the tweets during a hearing on a habeas corpus petition filed by Mr Kanojia’s wife, Jigisha Arora, seeking his release.

It is a “glaring case of deprivation of liberty” as Mr Kanojia has been remanded to almost two-week judicial custody, till June 22, for putting up posts or tweets in social media, said the bench, asking, “Is it a case of murder?”

Rejecting submission by additional solicitor general Vikramjit Banerjee that the habeas corpus plea by Ms Arora was not maintainable, Justice Banerjee said, “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.”

“We are not inclined to sit back on technical grounds,” said the bench, brushing aside the plea by Mr Banerjee that the magistrate court has granted judicial remand and the accused may approach the Allahabad high court to challenge it.

When ASG Banerjee, who represented the Uttar Pradesh government, tried to play the victim of “very very inflammatory posts” by Mr Kanojia, Justice Banerjee said, “Sometimes we suffer the brunt of social media. But the question is should it amount to a deprivation of liberty.”

At the outset of the hearing, Justice Banerjee observed, “Arrest? Arrest?? A citizen’s right to liberty has been infringed. We have gone through the records... These sort of tweets should not be made, but arrest?

In a query, Justice Rastogi asked ASG Banerjee, “Are you satisfied that ingredients of Section 505 IPC is made out?”

Section 505 of the IPC deals with statements conducing to public mischief.

Unimpressed by the ASG’s submission on the impact of the” very inflammatory” posts on social media, Justice Banerjee  said, “It is very wrong to think whatever is uploaded will be swallowed by the public. People are educated. People are intelligent. They don’t accept whatever is put in social media.”

The top court saw no similarity between the current case and the matter related to West Bengal BJP activist Priyanka Sharma who was arrested for targeting chief minister Mamata Banerjee. The top court had asked Ms Sharma to apologise upon her release from jail for allegedly posting a morphed image of Ms Banerjee on social media.