“The fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.”
There are two ways in which we can view this line from the Supreme Court’s order directing the release of journalist Prashant Kanojia on Tuesday, 11 June.
On the one hand, it could be viewed as the kind of stirring language that keeps finding its way into court judgments without actually having any real significance – after all, this line comes early in the order, and is not expressly linked to the operative part where Kanojia is granted bail.
Moreover, when the apex court has had the chance to really stand up for these rights, whether in the challenge to criminal defamation in 2016 or the Bhima Koregaon arrests last year (or, whisper it, the Aadhaar case), such sentiments have been conspicuously absent.
On the other hand, this statement could yet be of profound significance because it could perhaps be understood as the foundation stone of the court’s order in favour of Kanojia. And if this is how it comes to be interpreted, it could just become a useful weapon for those arrested unnecessarily by the police for merely airing an opinion (no matter how ill-advised).
Too caught up to read the whole story? Listen to it here:
What Exactly Does the Court Order Say?
Justices Indira Banerjee passed this order on behalf of herself and Justice Ajay Rastogi while hearing a habeas corpus petition filed by Kanojia’s wife, Jagisha Arora.
Habeas corpus petitions are one of the types of writ petitions which can be filed under Article 32 of the Constitution of India, and are generally used to bring forth someone detained by the government, so that the courts can assess whether they’ve been lawfully deprived of their liberty.
In Kanojia’s case, the court framed the key legal question before it right at the start, saying: “The question is whether the petitioner’s husband – Prashant Kanojia ought to have been deprived of his liberty for the offence alleged.” Crucially, at the outset itself, the order notes that the “answer to that question is prima facie negative.”
It’s at this point that the line from the beginning of this article comes in, before the court jumps into the arguments by the State of Uttar Pradesh.
The State authorities argued that this writ petition in the Supreme Court was not admissible since a local magistrate had already passed a remand order sending Kanojia to jail till 22 June. In previous judgments, the apex court has said in such circumstances that writ petitions under Article 32 cannot be filed, and the detainee has to challenge that judicial order in an appropriate forum. The State authorities also argued that Kanojia/his wife should have approached the Allahabad High Court first.
The court’s order proceeds to reject these arguments in an interesting way. The judges concede that these arguments are valid. However, it then notes that the fundamental right enshrined under Article 32 – to ensure the state follows the rules in how it treats you – cannot “be rendered nugatory in a glaring case of deprivation of liberty as in the instant case.”
The judges took great exception to the fact that Kanojia had been remanded to custody till 22 June, which meant he was facing 13-14 days in jail, just for putting up some posts on social media. The judges then state that they “are not inclined to sit back on technical grounds.”
And so, by exercising their power to do ‘complete justice’ under Article 142 of the Constitution, they dismissed the arguments by the government of Uttar Pradesh, and ordered Kanojia’s release. The order is expressly stated to have been passed “in view of the excessiveness of the action taken” by the authorities.
Not an Isolated Problem
Kanojia’s arrest should not be viewed in isolation. Notwithstanding the police’s attempts to rake up his old social media posts that they claim to be offensive, the tweet that got him the police’s attention and was the basis for his arrest was a joke about a video in which a woman claims to be in love with UP Chief Minister Yogi Adityanath. She says they’ve been video-chatting for a while, so she wants to know if he loves her too.
A day after the freelance journalist was detained, the UP police also arrested the head of the channel Nation Live which had broadcasted the video, Ishita Singh, as well as its editor Anuj Shukla. One FIR was registered against the channel for issues with its licence, but another FIR related to the video itself, even though it was reporting a genuine story.
But even this isn’t the full picture. Just over the last couple of weeks, there have been a spate of arrests and criminal complaints against people for social media posts and WhatsApp messages for “objectionable comments” about Prime Minister Narendra Modi, continuing a trend which has been in place for several years.
Social media posts critical of Yogi Adityanath have led to numerous arrests in UP, including under Section 66A of the Information Technology Act even though this was struck down by the apex court four years ago.
Unflattering comments on social media about West Bengal Chief Minister Mamata Banerjee have also led to arrests. The recent detention of BJP youth leader Priyanka Sharma for sharing a meme about her on Facebook led to widespread condemnation, and the Supreme Court ordered her release as well (though, problematically, Sharma was also directed to issue a written apology to Banerjee upon her release).
Manipur journalist Kishorechandra Wangchem had to spend four months in jail after being arrested for criticising the BJP and PM Modi in social media posts, including a video saying Chief Minister N Biren Singh was a puppet of the PM. After he was released on bail by a lower court, the authorities slapped National Security Act charges against him so that he could be detained without trial for a year, and it took the intervention of the Manipur High Court to get these dropped and secure his release.
In a remarkable turn of events, a BJP IT cell member in Assam was reportedly arrested by the Assam police on Thursday for posts on social media against the BJP government in the state, and Chief Minister Sarbananda Sonowal.
What this shows is that we have a significant problem in India of people being arrested and thrown in jail for social media posts which are either critical or make fun of politicians, especially if it’s about the BJP.
The problem isn’t just about angry politicians allegedly ordering arrests because they feel insulted. It’s also about the police officers who register cases under provisions that are not applicable and then completely ignore required procedures when effecting arrests. It’s also about the magistrates before whom the accused are produced, who don’t bother to see if the cases have any substance, and who mechanically pass remand orders throwing people in jail for weeks, or where the NSA is involved, months at a time.
So Will the Kanojia Order Help Deal With This Problem?
The higher judiciary has thus far failed to come up with an overarching approach to this problem, with any orders for release tending to be based on the facts and circumstances of the particular case, with no focus on the aspect that these cases deal with essentially harmless social media posts.
There are some who believe that the Kanojia order falls in the same category.
“It’s individualised and case specific,” says Supreme Court advocate Apar Gupta, who is the executive director of the Internet Freedom Foundation. In his view, the order is just about the direction to release Kanojia, and that such orders “ordinarily will not significantly alter or create any shift in the existing law.”
This is an entirely reasonable interpretation of the order and could well be what the court intended, since it doesn’t pass any generalised directions against arrests for similar cases. However, the reasoning adopted by the court does give rise to an alternate viewpoint.
Supreme Court lawyer Shadan Farasat, who represented Jagisha Arora in the case, is of the opinion that the court was making a broader point with this decision. Speaking to The Quint, he said: “It was of the clear view that such high-handed police action is not permissible in a constitutional democracy. I think that’s the broad principle on which the court gave the order today.”
At the very least, according to him, this order is meant to impress upon the police, not just in this case but others as well, that they should not be arresting people for mere social media posts:
“I think this is a very important order... to say that in cases of freedom of speech and expression, whether your view is palatable, unpalatable to somebody who is just a citizen or somebody who is high up in government, it does not matter. And certainly, you cannot use the state’s coercive power of arrest in such cases. If at all you want to initiate some proceedings, that’s open, but state’s coercive power of arrest is an extraordinary power, which in these kind of cases can normally not be used at all.”Shadan Farasat, Supreme Court Lawyer
What Does it Mean for Fundamental Rights to be ‘Non-Negotiable’?
It’s in this context that the court’s observation about the non-negotiable nature of fundamental rights becomes relevant.
Farasat’s interpretation relies on an understanding that in a constitutional democracy, freedom of speech includes the freedom to criticise and lampoon, and any decision by the state to deprive someone of their liberty should only be made where absolutely necessary.
Constitutional scholar and lawyer Gautam Bhatia has written in a blog post that the court order –
“rests upon the necessary inference that freedom of speech and personal liberty are such critical constitutional values, that the ‘deprivation of liberty’ for a pure speech offence (‘... putting up posts/tweets on the social media’ (sic)) would ipso facto be presumptively illegal.”
Bhatia clarifies that this does not apply to incitement of imminent violence or public disorder, as these would not constitute ‘pure speech offences’ – there is an actual attempt to engineer another crime there. But in cases of defamation, hurting religious sentiments, obscenity, etc which do not amount to actual incitement, the court is essentially saying that there is no need to arrest someone, and doing so is excessively harsh.
The wording of the order does offer support for this interpretation – from its mention of “glaring deprivation of liberty” to the reference to the number of days Kanojia has to spend in jail, to the specific reference to the harshness of the action taken. The question framed by the judges at the beginning of their order again does the same thing.
The Court Chooses the Bigger Picture
But what really hammers the point home is that the judges took this action despite the fact that the Supreme Court has passed decisions clearly saying that writs of habeas corpus cannot be filed once a magistrate has passed a remand order (see for example State of Maharashtra vs Tasneem Rizwan Siddiquee).
The idea behind these precedents is that writs lie against the executive branch of government, but a magistrate’s order is by the judiciary, not the executive. So, once a magistrate passes a remand order approving the arrest and providing custody, you have to follow the regular appeals process against it, because it’s no longer in the executive’s hands.
Now, there is a way to argue around this.
Farasat told The Quint they were ready to argue before the court that such precedents were not applicable where the lower court has passed an order without ‘application of mind’, and there is case law which could be used to support this view, like SFIO vs Rahul Modi (SC, 2019). In this case, it was held that if a magistrate passes a remand order mechanically, without applying is mind, this isn’t a valid order, and so the court can still assess the legality of the arrest and detention.
In Kanojia’s case, however, the court didn’t even bother getting into this argument – as a matter of fact, the judges didn’t even feel a need to hear arguments from Kanojia’s wife’s lawyers. For them to dismiss the government argument as a technicality shows that they were indeed taking a bigger picture view here, and putting the fundamental rights on a pedestal to protect them against the state’s depredations.
Where do We Go From Here?
This does not mean that India now offers USA’s First Amendment-style freedom of speech. There are still reasonable restrictions on it here.
The idea is just that the police should now understand that when it comes to social media posts and other “pure speech” (as Bhatia puts it) they can still register FIRs, investigate complaints, file chargesheets, do whatever they think necessary – but they cannot just arrest people in these cases. Magistrates are being sent a clear message that mechanical orders granting custody are excessive and will not be tolerated by the higher judiciary.
Sure, this isn’t going to magically stop such arrests and remand orders, especially in cases which don’t involve journalists, and are not high-profile. We will no doubt see arguments by state authorities that this order is not actually some grand precedent, that it is only case-specific, etc etc.
However that doesn’t take away from the potential this order has. Yes, the Supreme Court could have been more specific, and yes, it should have ordered disciplinary action against the police officers and magistrate in this case to show there will really be accountability for this sort of abuse of process (which is one of the few things which might actually make the authorities sit up and take notice).
But the order can still do its job for procedural rigour and protection of fundamental rights if relevant stakeholders see it through.
- Judges of the Supreme Court and the high courts should adopt this rights-friendly interpretation in subsequent cases which come up before them.
- Lawyers in these cases need to keep making the argument – something which would be a lot tougher without this order.
- The media needs to publicise and disseminate this order and its implications, and raise questions based on it every time someone gets arrested for social media posts or other such statements – not just when it’s one of their own, but in every such case, regardless of whether the statements are tasteful or not.
If all these things happen, we will hopefully begin to see the lower courts starting to exercise their discretion in such cases.
And maybe, just maybe, we’ll see more procedural discipline from them in not just cases about social media posts, but all issues involving the power of arrest – which is the best way of ensuring respect for the liberty of our citizens.
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