“THIS IS A NATION THAT HAS A CONSTITUTION LIBERTY CANNOT BE INFRINGED LIKE THIS.” JUSTICE INDIRA BANERJEE ON KANOJIA’S ARREST.

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On 11th June 2019, the Supreme Court exercised its special powers to direct the “immediate release” a journalist arrested by Uttar Pradesh police for objectionable tweets against Chief Minister Yogi Adityanath, saying an individual liberty was non- negotiable guarantee under the Constitution. He was arrested in Delhi on 8th June 2019. Kanojia has been charged with offences under section 500(defamation) and section 505(Statements conducing to public mischief) of the Indian Penal Code as well as section 67(publishing or transmitting obscene material in electronic form) of Information Technology Act.

The petition claims that Kanojia was picked up from his residence by people in plain clothes and no arrest was provided. The Uttar Pradesh police, according to the petitioner, did not seek transit remand from any court in Delhi before making the formal arrest.

The matter was mentioned before the vacation bench of Justice Indira Banerjee and Ajay Rastogi. The bench observed that- Prashant probably should not have published or written the tweets, but on what basis was he arrested. It also asked UP government to show document related to his release order. The lawyer arguing on behalf of state plea that the tweets was inflammatory; very, very strong and inflammatory tweet were made by accused, which has infringed on somebody’s right, but the court rebutted that it cannot be justified by putting a person behind the bars. The court advised that the petitioner should turn down and approach the lower court or high court for bail.

On 11th June 2019, according to the press note issued by the Uttar Pradesh police acted on Suo Motu in the case. Kanojia’s wife challenged the arrest and has now moved the Supreme Court seeking issuance of the writ of Habeas Corpus. 

Additional Solicitor General (ASG) Vikramjit Banerjee and Advocate. Swarupama Chaturvedi, appearing for the Uttar Pradesh government, said a habeas corpus plea cannot be entertained as the accused is in judicial custody.

ASG argued that a remand order was passed by the judicial magistrate and the petitioner should first approach the Allahabad High Court and he also said the plea was not maintainable and the apex court does not entertain writ petition unless High Court has first been approach.

The bench said that the law is very clear. A person cannot be deprived of his fundamental right i.e. Article 19(1) {Right to freedom of speech and expression} and Article 21{Right to life and personal liberty}. Even if it is an Article 32 petition, the Supreme Court can entertain it and the court cannot keep it’s and folded when there is deprivation of right to liberty.The bench also said that, Article 32 which itself is a fundamental right cannot rendered in a glaring case of deprivation of liberty in the instant case, where the judicial magistrate has passed an order of remand till 22nd June 2019 which mean Prashant Kanojia would be in custody for 13 to 14 days for just posting tweet on social media. The bench exercise the power under Article 142{enforcement of decrees and orders of Supreme Court} of the constitution of India this court can mould the reliefs to do complete justice, the bench said while disposing the petition that the order for release is not to be constructed as an approval of the tweet posted by Prashant Kanojia and proceeding against Kanojia will continue in accordance with law.

By:-

Chikita Malhotra

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