The wife of Noida-based journalist Prashant Kanojia on Monday, 10 June, moved the Supreme Court challenging his arrest. Kanojia was picked up by the Uttar Pradesh Police from his Delhi residence on Saturday, 8 June, for a social media post against Uttar Pradesh Chief Minister Yogi Adityanath.
“Expect SC to Declare Prashant's Arrest Unconstitutional”
Jagisha Arora, wife of Kanojia, said she expected the Supreme Court – which will hear the plea on Tuesday – to declare that her husband’s arrest unconstitutional. Speaking to The Quint at a protest march held at Delhi’s Press Club on Monday against Kanojia’s arrest, Arora said that the police was not treating her husband well and was bothering him, saying that she had heard the same from her friends.
Arora said that she was sure that the apex court would rule on Tuesday that all the charges placed on Kanojia were unconstitutional and that he should never have been arrested at all.
Arora Files Habeas Corpus Petition in SC
A vacation bench, comprising justices Indira Banerjee and Ajay Rastogi, on Monday took note of the submission by a lawyer that the plea filed by Kanojia’s wife warranted urgent hearing as the arrest was "illegal" and "unconstitutional", reported news agency PTI.
Arora has filed a habeas corpus petition in the Supreme Court, in which she has argued that his arrest by the UP Police was illegal.
She confirmed to The Quint that she had filed the case and was at the court this morning.
Key Points of Arora’s Petition
The Quint accessed the petition filed by Arora in the Supreme Court. Here are some of the key points of the petition:
- Police could not have lodged an FIR under Section 500 of the IPC (criminal defamation) since only the person aggrieved by an allegedly defamatory statement can file a complaint before a magistrate for criminal defamation. Here, Yogi Adityanath had not filed any such complaint, and there was no basis to arrest him under this section.
- Section 66 of the IT Act, the other offence under which the FIR had been registered, carries a maximum sentence of three years imprisonment, and is therefore bailable as per the IT Act. Therefore, the police had to release him in Delhi itself, as per Section 436 of the Code of Criminal Procedure (which mandates release on bail in such cases).
- The two other provisions which the police cited in their press note (Section 505 of the IPC and Section 67 of the IT Act) are not even prima facie made out, even if the allegations by the police are considered true. Sharing a video by a woman proclaiming love for a public official, which was available in the public domain, could not be considered a rumour, and cannot disturb public tranquility (as required by Section 505 of the IPC), and is not “lascivious or appeals to the prurient interest” (as required by Section 67 of the IT Act).
- Both the new provisions also have a maximum sentence of three years imprisonment, and therefore there need to be extraordinary reasons for arrest, which have to be recorded in writing, as persons accused of offences with a sentence of 7 years or less are usually not to be arrested at all as per the Supreme Court’s decision in the Arnesh Kumar case in 2014 (and now in Section 41(b)(ii) of the CrPC). Section 67 is also bailable as per the IT Act.
- The post on its face value constitutes no criminal offence and the case against Kanojia is an “unwarranted assault on the free speech and the right to life.”
- The state of Uttar Pradesh took steps to ensure that no legal recourse could be taken by Kanojia against their wrongdoing. They did not follow the procedure for arrest under the Code of Criminal Procedure as they did not identify themselves, or inform him of the grounds of detention or prepare an arrest memo or inform his family.
- They took him into custody without releasing him on bail as required, did not obtain a transit remand order even though they were taking him to a different jurisdiction, thereby depriving him of the right to be produced before a Magistrate as soon as practical.
Soft-Spoken, Introvert and Today Scared: Arora in Facebook Post
On Sunday, 9 June, she had put up a Facebook post saying: "I am Jagisha Arora, a naive, soft-spoken, introvert, and today scared. I am the wife of the famed or ill-famed Prashant Kanojia who has been detained by the UP Police under direct directives of the designated Chief minister of the state."
The FIR had said Kanojia was being charged under Section 500 of the IPC (criminal defamation) and Section 66 of the IT Act (fruadulently/dishonestly causing damage to a computer system). However, a press note by the Uttar Pradesh Police after his arrest also alleged that they were of the view that his conduct violated not just Section 500 but Section 505 of the IPC (statements/rumours amounting to public mischief) and Section 67 of the IT Act (obscenity) – they made no mention of Section 66 any more.
In the post, Arora went on to write, "I lost the sense of time, for the first 30 minutes or so, I was lost in thoughts, but when I gained senses I broke down and cried for another almost 30 minutes, then managed to call upon and inform his journalist friends. It was then I realised the nightmare of every journalist had come alive in my life too."
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