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SC orders release of journalist arrested for tweet about UP CM, says fundamental rights ‘non-negotiable’

The Supreme Court of India has ordered the release of journalist Prashant Kanojia, who was jailed on Saturday for tweeting about Uttar Pradesh chief minister Yogi Adityanath, Live Law reports. the UP police picked Kanojia up from his house on Saturday for “defaming” Adityanath, after he shared a video of a woman who claimed that she had a relationship with the chief minister. They lodged a suo moto FIR against Kanojia under Section 500 of the Indian Penal Code and Section 66 of the Information Technology Act. But earlier today, a vacation bench of Justices Indira Banerjee and Ajay Rastogi observed that Kanojia’s arrest and remand were illegal and went against personal liberty (read the full order on Live Law). The court also turned down the state’s submission that the petitioner – Kanojia’s wife Jagisha Arora – should approach the lower court or high court for bail.

‘Not inclined to sit back’: What the Supreme Court said

In its three-page order, the court said the nature of Kanojia’s posts was irrelevant and the real question was whether he ought to have been deprived of his liberty for the alleged offence. “The answer to that question is prima facie in the negative,” the court said, adding that the fundamental rights guaranteed under Articles 19 and 21 of the Constitution were “non-negotiable”.

The bench noted that the Additional Solicitor General appearing on behalf of the state argued against giving Kanojia bail on the grounds that a judicial magistrate had already passed a remand order, and that his lawyers should have approached the high court first. The bench said that while the court would ordinarily direct the petitioner to approach a high court first, even in cases where fundamental rights are alleged to have been violated, it was not “inclined to sit back on technical grounds” in the present case. It noted that the judicial magistrate’s remand order would have kept Kanojia in custody for two weeks, simply for putting up posts on social media. While ordering Kanojia’s immediate release on bail, the court made it clear that this should not be construed as an approval of his social media posts, rather in view of the “excessiveness of the action taken”.

Two other journalists arrested on Saturday

Two other journalists who work for a television channel, Anuj Shukla and Ishika Singh, were also arrested on Saturday for hosting a discussion that allegedly “maligned” Adityanath, The Indian Express reported. It is not clear if the allegations were over the same video. Another case was lodged in Fatehpur district on Saturday night against a 30-year-old man who allegedly uploaded to Facebook morphed photographs of the CM and the woman at the centre of the video row.

Internet Freedom Foundation calls on govt to strengthen free speech

Meanwhile, the Internet Freedom Foundation on Monday had called for Kanojia’s immediate release and also pressed for “much-needed policy and legal reforms” in a letter to Amit Shah, the home minister, and Ravi Shankar Prasad, minister of electronics and information technology, and law and justice. In it, IFF highlighted the need for legal reforms in India – especially the repeal of criminal defamation and sedition laws – to ensure freedom of speech and expression.

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“With the continuously increasing number of Indians gaining access to the Internet, fear of unlawful prosecution and arrests only appear to be growing. This in all eventualities results in an incredible amount of self-censorship; a direction India seems to be moving towards similar to that of China. The repeal of criminal defamation and sedition is the need of the hour, more now so than ever before.”

IFF suggested the following immediate steps and long-term reforms to solve the problem:

  • Immediate steps: Issue a detailed advisory to all State Governments cautioning against the use of criminal law to police free speech of social media users. Especially, arbitrary arrests.
  • Long-term systemic reform: Operationalise the Law Commission of India to spearhead a comprehensive media and speech laws reform project with public participation.

Read a copy of IFF’s representation to the government here.

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