The Allahabad High Court on Friday, 15 May, granted anticipatory bail to Siddharth Varadarajan, editor of The Wire, in the criminal case against him in Ayodhya over an article which mentioned that Uttar Pradesh Chief Minister Yogi Adityanath had attended a religious function after the Prime Minister announced the nationwide coronavirus lockdown.
Two FIRs were filed against Varadarajan in Ayodhya referring to the article and his tweet sharing it, in which he’d cited the relevant section about the UP CM attending a religious function in Ayodhya on 25 March.
The article, originally mistakenly attributed a comment by a religious leader to Adityanath, but the error was rectified before any FIR was filed.
The FIRs do not reference the attribution error, and instead claim that Varadarajan was attempting to create communal disharmony by tweeting about Adityanath and the Tablighi Jamaat issue together. The police filed a charge-sheet in the case on 8 May, and the trial has been posted for hearing on 8 June.
Frivolous, Malicious, Motivated Case: Varadarajan’s Plea
Varadarajan’s lawyer, senior advocate IB Singh, argued that the FIRs are “an attempt to muzzle free speech”, and pointed out that the article and tweets were based on statements of facts which have been reported in various other news publications as well – the UP government has not denied that Adityanath did attend the function.
Singh therefore argued that Varadarajan had not committed any criminal offence, and that the case is “frivolous, malicious and motivated in nature.”
On the issues directly connected with the grant of bail, Singh pointed out that the article and tweet in question are a matter of record, so there is no risk that the evidence in the case could be tampered with if Varadarajan is not arrested. He also pointed out that Varadarajan is unlikely to abscond – as the Ayodhya police claimed – as he is a permanent resident of Delhi, with “deep roots” and immediate family in the city.
It was also pointed out to the court that among the charges against Varadarajan – Sections 66D and 67 of the IT Act, Sections 188 and 505(2) of the IPC, Section 54 of the Disaster Management Act and Section 3 of the Epidemic Diseases Act – only one of them was non-bailable (Section 505 IPC), and even there, the maximum punishment is 3 years imprisonment. Consequently, there was no legal bar on the court granting him anticipatory bail.
In his arguments to the court, Singh also pointed out that on 10 April, a group of policemen had come to Varadarajan and his wife’s home in Delhi and given her a notice for him to appear at the police station in Ayodhya on 14 April despite the ongoing lockdown.
Singh observed that the Supreme Court had confirmed in several cases that anticipatory bail under Section 438 of the Code of Criminal Procedure was important to protect “individual liberty against arbitrary, frivolous and malicious arrests”.
He noted that the imprisonment of the accused during investigation and trial is only meant to ensure their cooperation, not punish them, and that Varadarajan had fully cooperated with the investigation – hence there was no need to arrest him.
Attempt to Disrupt Communal Harmony: UP Govt’s Objections
The State of Uttar Pradesh “vehemently opposed” Varadarajan’s request, according to the court order. Additional Advocate General VK Shahi and another government advocate argued that the article and tweet were meant to “create a confusion amongst the public at large in order to disturb the communal harmony”.
They claimed that because of the article and tweet, “there were several unfortunate communal incidents which destroyed the public peace, and cases were registered upon which actions were taken immediately by the vigilant activities and activeness of the district police.” The claims go so far as to say that if the police in Ayodhya hadn’t taken prompt measures, the communal harmony would not only have been disturbed in Ayodhya, “but even would have widely spread outside the state.”
The UP government lawyers claimed that there was “every likelihood” that Varadarajan would abscond and intimidate witnesses and evade trial. They informed the court that he holds a US passport and is an American citizen, and so could flee from the country – though interestingly they themselves noted that despite this he had been residing in the country since 1995.
Law is Clear: High Court Grants Anticipatory Bail
Justice Chandra Dhari Singh of the Lucknow Bench of the high court was not convinced by the UP government’s objections to the request for anticipatory bail, including the claim that Varadarajan couldn’t request anticipatory bail now that the charge-sheet had been filed.
Noting that Varadarajan had a reasonable apprehension of arrest – in light of the notice sent to him to come to the police station in the middle of the lockdown, and especially now that the charge-sheet had been filed – the judge held that he did not “find any merit” in the arguments by the UP government, and that the law was clearly in the journalist’s favour.
Accordingly, the high court held that in the event Varadarajan was arrested, he was to be released on bail immediately on execution of a personal bond of Rs 2 lakhs with two sureties each of the same amount.
Other conditions specified included that he would not leave India during the trial without the trial court’s permission, would surrender his passport to the trial court or high court, would be present in person for key stages of the trial, and would not seek adjournments of dates fixed for evidence in the trial.
Finally, Justice Singh clarified that the observations in the anticipatory bail order would not affect the trial proceedings in any manner, and were limited to the issue at hand.
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