Freelance journalist Prashant Kanojia was arrested for allegedly sharing an objectionable post against Uttar Pradesh Chief Minister Yogi Adityanath on twitter and Facebook. An FIR was registered against Prashant Kanojia by sub-inspector Vikas Kumar at Hazratganj police station on 7.06.2019 in which it was alleged that the accused made “objectionable comments against the CM and tried to malign his image”. He posted a link to another video in where a woman is seen speaking to reporters of various media organizations outside the CM’s office, expressing her desire to marry Yogi Adityanath and claiming that she had sent him a marriage proposal.
The news item shared by kanojia is absolutely false and his comments were no doubt distasteful. Even then the arrest is not sustainable in law. It appears to be a blatant abuse of power as the offences mentioned in the FIR do not justify the arrest.
The Supreme Court stepped in on the raging controversy over the arrest of the journalist in Uttar Pradesh and the Supreme Court coming quite hard on the yogi Adityanath govt. and ordering the immediate release of the freelance journalist. This happened after the family of the journalist filed a bail in the apex court against the dogmatic arrest. SC says the right to liberty is sacrosanct and non negotiable.
The apex court goes on to say that releasing the journalist and granting his bail should not be taken as an endorsement or approval of such comments but merely disapproving the way which the UP govt. and police handled the case is not just objectionable post against UP govt. but a series of tweets that he has put out with regard to religion ,with regard to certain casteist remarks, the SC says not going on the context of the tweets , they have seen and thoroughly gone through the tweets ,however the question here is of liberty .the apex court has clearly said that he is a citizen and his fundamental right of liberty cannot be interfered with in this manner and the fact that he has been sent to a judicial custody immediately for 14 days after the arrest only on the basis of tweet is unacceptable ,however the proceedings shall go on, no stay on proceeding but just release on bail ,this shall not affect the trial, proceedings shall continue as per law ,but the arrest was excessive and was a serious deprivation of liberty .
HIGHLIGHTS OF THE CASE
- The SC asked the UP govt. to show magnanimity in releasing the journalist
- SC held the right to liberty as sacrosanct and non negotiable which cannot be trampled upon by govt. by arresting a citizen without sufficient reason
- The FIR lodged suo moto by the UP police is registered under section 500 of the Indian penal code plus section 66 of the information technology act making allegations against Mr. kanojia made defamatory statements against UP Chief minister yogi Adiyanath with an attempt to slander his image and damage his reputation.
- The case was heard by a vacation bench comprising of justices Indira Banerjee and Ajay Rastogi
- Kanojia’s wife put a petition for writ of habeas corpus before the honorable supreme court
- The arbitrary and irrelevant inclusion of section 66 of the IT act though a cognizable offence has no role to play in this case as it deals with fraudulently and dishonestly damaging a computer system. Clearly this addition to the FIR is vague and absurd.
- Criminal defamation under section 500 IPC is a non cognizable offence, action can only be taken when a private complaint has been filed before the magistrate. According to sec. 41 CRPC arrest without warrant can take place only in relation to cognizable offences. Clearly, the UP police could not have taken direct cognizance of it by registering an FIR.
- The police has made additional provisions in the statement on its press release which was not earlier there on the original FIR. This includes section 505 of the IPC and section 67 of the information technology act.
Even these additional provisions does not seem very appropriate in this case as sec. 505 of the IPC deals with statements conducing to public mischief
- The charges made against the journalist is for defamation ,sec. 66 of IT act (tampering and not sharing video content on social media),sec. 67 of the IT act dealing with transmitting obscene material ,nothing in the video is vulgar or obscene ,sec. 505(1) of IPC deals with spreading rumors causing disharmony among groups ,the tweet didn’t incite any religious or linguistic group
ARRESTS CONTRARY TO CRPC AND SC PRECEDENT
As per sec 41 of CrPC,
Arrests for offences which are punishable with imprisonment up to 7 years can be made only in exceptional cases.
Acc. To sec. 41 (1) (b) (2), CrPC, before making the arrest the police has to make satisfaction in writing that the arrest was necessary:
- To prevent such persons from committing any further offence ;or
- For proper investigation of the offence ;or
- To prevent such person from causing the evidence of the offence to disappear or tampering with the facts to the court or to the police officer ;or
- As unless such person is arrested ,his presence in the court whenever required cannot be ensured
The introduction of this particular provision was to make sure that if a person is made accused for an offence which comes with an imprisonment of not less than 7 years, the police under only extraordinary circumstances is empowered to make the arrest by citing the reasons for arrest in writing and not otherwise. The police is required to serve a valid notice under sec 41A CRPC asking him to appear for investigation on allotted dates instead of directly arresting the concerned person at the very first instance.
The supreme court in Arnesh Kumar v. state of Bihar AIR2014SC2756.
The purpose of incorporating this provision by 2009 amendment was to act as a safeguard against arbitrary arrests and an emphasis on the need to check on power of arrests.
SC‘s note on Arnesh Kumar case,
“Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scar forever, we feel differently. No arrest should be made only because the offence is non bailable and cognizable and therefore lawful for officers to do so. They must provide with justification for such arrests.”
In this case as well, the UP police has not listed out any extra ordinary reasons for the hasty and arbitrary arrest was clearly out of their jurisdiction.
It is shocking and daunting to see how the liberty of journalists are being trampled upon by the authority. Instances such as these show why journalism continues to be risky and why India’s rank on the world press freedom index over past few years continue to drop and is ranked 140 out of 180 countries which is bad. We aren’t denying the fact that reasonable restrictions must be put upon the liberty on an individual and we absolutely acknowledge that right comes with a responsibility but arrest was excessive and despotic.
OTHER INSTANCES
Although journalist Prashant Kanojia has been released, there have been other instances too, where people got arrested for similar reasons.
Three people from a Noida based channel, Nation Live, the owner Ishika Singh , editor Anuj Shukla and editor Anshul Kaushik who were arrested for broadcasting the video “without verifying” its authenticity, which Kanojia then tweeted with a comment of his own. The channel had held a panel discussion and ran the video of an interview of the women who claimed that she had sent a marriage proposal to Yogi Adityanath. Ishika Singh and Anuj Shukla were arrested on June 8 and remanded to 14-day judicial custody. Anshul Kaushik was arrested two days later.
A complaint about the illegal operation of the channel was also made by the additional district director at the police station subsequent to which an FIR under Sections 420 (fraud), 467 (forgery of documents) and related offences was registered, police said.
Police on Sunday had sealed the premises of the channel amid protests by social activists and the Editors Guild of India, which described the episode an attempt to “intimidate” the press and “stifle the freedom of expression”.
Two persons have been arrested in Gorakhpur district for allegedly posting objectionable comments on social media.
Peer Mohammad, a scrap dealer and a resident of Gola area was arrested for making a fake “wedding card” of Yogi Adityanath go viral on social media.
Another person, Ram Prasad, who is a manager of a nursing home and lives in Shahpur, was also arrested for making indecent remarks against Yogi Adityanath on social media.
Cases have been registered in both the incidents under Sections 503(criminal intimidation), 505 (public mischief) of the IPC and Sections 65/66 of the IT Act.
In the meantime cases have been registered against two other persons on similar grounds, but they have not been arrested until now.
Vijay Yadav of Basti is facing charges for allegedly making derogatory remarks against Yogi Adityanath on social media, while Santosh Kumar Gupta has been booked for uploading a morphed picture of Yogi Adityanath.
IS IT FAIR?
The arrest seems to be a clear misuse of law. The Uttar Pradesh police FIR books Kanojia for defamation and defamation requires that a magistrate takes note of the case before arrest and no permission was taken before Kanojia’s arrest. He was also charged under section 66 of the IPC Act which relates to destroying computer property. This charge is particularly mystifying as putting out a tweet cannot amount to destruction of computer property. Section 67 in the FIR are against Kanojia relates to transmitting obscene material now an interview with a woman no matter how accurate or inaccurate her claims are cannot be called obscene. There was also nothing obscene in Kanojia’s comment which was tweeted along with that video. The journalist was also charged under section 505, spreading rumors with the intent to promote communal enmity which of course begs the question, does criticizing a chief minister equate with communal enmity.
Almost all provisions of the CrPc and the IPC are allegedly violated in the arrest of Kanojia. The FIR itself is legally untenable. The arrest is a serious clampdown on not just his fundamental rights but also the constitutional guarantees of freedom of speech and expression.
FREEDOM OF PRESS
Hundreds of journalists from different organisations protested at the press club of India in New Delhi against the arbitrary arrest of journalists by the Uttar Pradesh police in the name of defamation, condemning the arrest and demanding the release of Kanojia without any further delay.
One Veteran journalist said that, “the arbitrary arrests show that the present regime led by PM Modi and CM Yogi does not acknowledge media freedom and have displayed utter disrespect for the rights enshrined in the Constitution. Criticism and commentary is part of our job. How can police decide if something amounts to defamation or not, if present situation continues to prevail, no journalist can feel safe in India.”
Another senior journalist said that, “The arrest once again makes it clear that the law of criminal defamation is often used in these cases. It should be struck down given the misuse by police. Even Britain, where it originated, has struck down the law. Why are we still using such archaic laws?”
IS THIS AZADI OR ZABARDASTI? The police action amounts to misuse of law and it seems like an effort to intimidate the press and stifle the freedom of expression. This is clearly a brazen misuse of law. The FIR in this case was not filed by the person allegedly affected by suo motu by the police. This is a condemnable misuse of law and state power. The criminal defamation as well as IT act and the IPC provisions that have been invoked looks like a vindictive action and motivated.
And with netizens outraged over Kanojia being held, the scribes name and the hashtag #freeprashanthnow were trending on twitter, calling the journalists detention as grave miscarriage of justice for merely posting a video, congress leader and senior lawyer Abhishek Manu Singhvi urged the Allahabad High Court to take the suo motu cognizance of the matter.
The drop in India’s ranking in press freedom has been linked to the existence of a sedition law that encourages self-censorship particularly in a period of heightened nationalism.
The ghastly murder of senior journalist Gauri Lankesh and the state of media outlets In Kashmir where some organizations reportedly became target of violence by soldiers acting with the central govt.’s tacit consent, all of this show that clearly media freedom is under grave threat.
CONCLUSION
The arrests of the journalists raises major concerns over the obvious subversion of the system of law enforcement and selective use of laws in spite of the fact that press freedom has been recognised as part of freedom of speech and expression under the Constitution. Journalists are increasingly becoming victims of harassment, illegal detentions and arbitrary arrest.
According to the World Press Freedom Index, India ranks 138th out of 180 countries in 2018, and has become the nation with the maximum number of murders of journalists under police investigation.
In 2017, the International Press Institute recorded the targeted killings of 12 Indian journalists.
Besides the impending threat of being murdered, Indian journalists also face online harassment if they speak critically of the government. Many TV anchors have been removed from prime time debates.
This abuse of power cannot be left unchallenged since it has huge implications on the freedom of the press as well as on our democracy.
Fali Nariman once said, “Freedom after speech-that is really what speech is all about. He emphasised that you are allowed to speak, speak as much as you like, but there is a fellow waiting there to nab you and out you in so you can’t speak again.”
By – Astha Rao and Shipra Sahu