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The Supreme Court today granted bail to journalist Prashant Kanojia who had been arrested by Uttar Pradesh Police for tweets against Yogi Adityanath.
A Bench of Justices Indira Banerjee and Ajay Rastogi made some strong remarks against the Uttar Pradesh Police and State of Uttar Pradesh for incarcerating Kanojia and also turned down the submission of the State that the petitioner should approach the lower court or High Court for bail.
The remarks were made in a petition filed by wife of Prashant Kanojia seeking issuance of writ of Habeas Corpus.
When the hearing began, Additional Solicitor General Vikramajit Banerjee appearing for Uttar Pradesh submitted that the remand order has been passed by the Judicial Magistrate and hence, Article 32 petition should not be entertained.
“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?”, asked Justice Indira Banerjee.
Justice Rastogi asked on what basis has Section 505 of IPC been invoked. Counsel for Uttar Pradesh sought to place reliance on older tweets by Kanojia.
“We went through his Twitter timeline… He has made tweets about gods and goddesses, tweets not restricted to political figures. His tweets are very strong, very inflammatory”, he said as a ground for adding Section 505.
But the Bench insisted that no ground was made out for incarceration.
Justice Banerjee also said that the order of Judicial Magistrate remanding him to judicial custody was not appropriate.
“June 22? He’s remanded for 11 days?”, asked Justice Rastogi.
“Is this a murder charge?”, demanded Justice Banerjee.
ASG argued that the challenge to the same has to be made in a lower court or High Court.
“There is a judgment of Constitution Bench of Supreme Court on this”, he said.
Justice Banerjee, however, said that the Supreme Court can pass any order under Article 142 of the Constitution to do complete justice. She also reminded that the liberties under the Constitution are sacrosanct and the Court cannot shy away when “something is so glaring”.
“Court does not ordinarily entertain A.32 but the Article is there in Constitution for those whose freedom is affected. When something is so glaring, can court hold its hands and say go to High Court?”, asked Justice Banerjee.
Both the judges took exception to the incarceration of the Kanojia while also stating that what he tweeted might not have been appropriate.
“We do not appreciate these tweets, but can you put him behind bars for this?”, asked Justice Banerjee.
The Court, therefore, ordered that Kanojia should be released on bail.
“The Court need not comment on the contents of the tweets. The question is, should the petitioner have been deprived of his liberty over them. The answer to that is is prima facie in the negative.
The fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.”
The Court was of the view that even though in the ordinary course of action, petitioners are directed to approach the High Court first in cases of violation of fundamental rights, the right under Article 32 cannot be “rendered nugatory.” The Order, in this regard, says,
“As a matter of self imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, 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 Court further added that it can use its power under Article 142 to do complete justice and was not inclined to “sit back on technical grounds.”
“We are not inclined to sit back on technical grounds. In exercise of power under Article 142 of the Constitution of India this Court can mould the reliefs to do complete justice.”
The Court thus, directed that Kanojia be released on bail immediately on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate.
“We direct that the petitioner’s husband be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate.”
The Court, however, clarified that the order for release is not to be construed as an approval of the tweets posted by Kanojia and proceedings against Kanojia can take place in accordance with law.
“It is made clear that this Order is not to be construed as an approval of the posts/tweets in the social media. This order is passed in view of the excessiveness of the action taken.
Needless to mention that the proceedings will take their own course in accordance with law.”
The Petitioner was represented by Advocate Nitya Ramakrishnan with Advocates Shadan Farasat and Shruti Narayan. The Respondent State was represented by ASG Vikramjit Banerjee along with Advocates Swarupama Chaturvedi, Aparna Trivedi, and Mukesh Kumar.