Freedom of expression

Unlawful arrests

Print edition : July 05, 2019

Prashant Kanojia, a Hindi journalist, being released from the Lucknow jail on June 12. Photo: Nand Kumar/PTI

Uttar Pradesh Chief Minister Yogi Adityanath. The public sharing of a video clip has apparently hurt his image as a bachelor. Photo: Rajeev Bhatt

Jagisha Arora, wife of Prashant Kanojia, takes part in a protest with mediapersons in New Delhi on June 10. Photo: Anushree Fadnavis/REUTERS

By arresting journalists for their social media posts under the provisions of the IT Act that the Supreme Court has struck down, the Uttar Pradesh Police display scant regard for the law and for media freedom.

THE re-election of the Bharatiya Janata Party-led National Democratic Alliance at the Centre has further narrowed the tolerance levels for freedom of expression, especially in States where the BJP is in power. Any attempt to lampoon its leaders, directly or indirectly, is tantamount to testing the scope of the exercise of the constitutional guarantee of freedom of expression. In this, whatever the legal provisions and the judicial orders may say in defence of freedom of expression, those in power are likely to invoke the legal process as a punishment in itself, even if the action taken against such dissenters cannot stand up to legal scrutiny and is liable to be struck down on that ground.

On June 8, the Uttar Pradesh police arrested a Hindi language journalist, Prashant Kanojia, for sharing a video on his Twitter handle and Facebook page about Uttar Pradesh Chief Minister Yogi Adityanath. In the video clip, a woman claims that she has been having video chats with Adityanath for a year and wants to know whether the Chief Minister will marry her. In the video, she is seen talking to reporters of various media organisations outside the Chief Minister’s office in Lucknow. She even claims to have sent him a marriage proposal.

Adityanath is a monk, and the public sharing of the video has apparently hurt his image as a bachelor. The Uttar Pradesh police picked up Kanojia from his home in Delhi and took him to Lucknow pursuant to the first information report (FIR) registered by the Hazratgunj Police Station in Lucknow.

On June 11, the Supreme Court’s vacation bench comprising Justices Indira Banerjee and Ajay Rastogi ordered the immediate release of Kanojia on bail. It asked the Uttar Pradesh government to show magnanimity as the question involved denial of a citizen’s liberty. “The fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable,” the bench held, taking serious note of the fact that the jurisdictional magistrate remanded Kanojia to custody for 14 days for his social media posts and tweets. “We are not inclined to sit back on technical grounds,” the bench said and justified its intervention in view of the excessiveness of the action taken.

Kanojia’s arrest led to protests by mediapersons. The Editors Guild of India described the police action as an “authoritarian misuse of laws and an effort to intimidate the press”. It sought decriminalisation of the defamation law and called the invocation of the provisions of the Indian Penal Code (IPC) and the Information Technology (IT) Act, 2000, as motivated and vindictive. Kanojia’s arrest was followed by the arrests of Eshika Singh, managing director of a private television news channel, Nation Live, and Anuj Shukla, the channel’s managing editor, for telecasting the controversial video clip. The show’s anchor, Anshul Kaushik, was also arrested on June 11, close on the heels of the Supreme Court’s order to release Kanojia. The order seems to have had little effect on the Gautam Budh Nagar District Court, which refused to entertain the bail pleas of the arrested mediapersons.

The Network of Women in Media, the Indian Women’s Press Corps, the Press Club of India, South Asian Women in Media and the Press Association issued a joint statement condemning the arrests. Hundreds of mediapersons and activists staged a protest march in New Delhi on June 10, describing the arrests as an attack on the freedom of expression.

Section 66A of IT Act

In 2015, the Supreme Court declared Section 66A of the IT Act, 2000, ultra vires the Constitution in Shreya Singhal vs Union of India. This provision sought to penalise “any person who sends, by means of a computer resource or a communication device (a) any information that is grossly offensive or has menacing character; (b) any information that he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will persistently by making use of such computer resource or a communication device; and (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.”

The court struck down Section 66A saying it was vague, went overboard and was inconsistent with any of the specified grounds under Article 19(2) of the Constitution, which justify restrictions on the freedom of expression. The two-judge bench of Justices J. Chelameswar and Rohinton F. Nariman had said in its order: “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.” The definition of offences under the provision was “open-ended and undefined”, it said.

The court said: “The information disseminated over the Internet need not be information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the [Indian] Penal Code at all.”

However, it appears that the news of the demise of Section 66A, at the hands of the Supreme Court, has not yet reached some of the States whose police continue to invoke the provisions. On being told that the these provisions had been consigned to the archives of history, they have no compunction in relying on its grounds, even if they have to cite an irrelevant legal provision.

Secion 500, IPC, invoked

Kanojia was booked under Section 500 (defamation) of the IPC and Section 66 of the IT Act. Section 66 says that if any person, dishonestly or fraudulently, does any act referred to in Section 43, he shall be punishable with imprisonment for a term, which may extend to three years, or with fine, which may extend to Rs.5 lakh, or with both. Section 43 deals with penalty and compensation for damage to computer, computer system, etc.

Section 500 of the IPC deals with criminal defamation, which is a non-cognisable offence. That is, the police can take cognisance of it only after a private complaint is made by the aggrieved person before a magistrate. In this case, Adityanath, who might have been the aggrieved person, did not make any complaint before a magistrate, warranting Kanojia’s arrest.

When the police realised that Section 66 was inapplicable in this case, they invoked Section 67 of the IT Act, which deals with publishing or transmitting obscene material in electronic form and Section 505 of the IPC, which were not mentioned in the FIR.

Specifically, Section 67 seeks to punish anyone who transmits electronically any material that is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained or embodied in it. The punishment for first conviction under this provision is imprisonment for a term, which may extend to five years, and with fine up to Rs.10 lakh. In the event of second or subsequent conviction, the maximum punishment that may be imposed is seven years imprisonment and a fine of Rs.10 lakh. Clearly, a mere statement about the private life of the Chief Minister cannot be termed as obscene.

Section 505 has specific provisions, which were not satisfied in this case. It will kick in only when the alleged offender has an intent to cause fear or alarm to the public, whereby any person may be induced to commit an offence against the state or against public tranquillity. A statement about the private life of the Chief Minister cannot be expected to lead to public disorder.

Arrest in such cases, the Supreme Court has held on several occasions, can be made only after the police records exceptional reasons in writing, to justify proper investigation of the offence, for example, among other possible reasons. Since the arrest of a person curtails his or her freedom, humiliates and stigmatises him/her forever, the Supreme Court has held that a police officer should not arrest a person without a reasonable satisfaction, after some investigation as to the genuineness of the allegation.

The fact that the State government wanted to use the process as the punishment in the Kanojia case became clear when the Additional Solicitor General, Vikramjit Banerjee, representing the Uttar Pradesh government, questioned the Supreme Court’s jurisdiction to intervene, when the aggrieved party should have approached the High Court first. Kanojia’s wife, Jagisha Arora, filed a habeas corpus petition in the Supreme Court under Article 32 of the Constitution.

Although the bench has disposed of her petition, following the release order, the question of ensuring accountability for applying laws without application of mind against mediapersons and others for their social media posts remains.

A scrap dealer, Peer Mohammad, was arrested in Gorakhpur in Uttar Pradesh on June 10 for making a fake “wedding card” of Chief Minister Yogi Adityanath on social media. Another person was reportedly taken into custody for making indecent remarks against the Chief Minister on social media.

The Uttar Pradesh Police’s arbitrary action against four mediapersons coincides with a similar action (registration of FIR) by the Karnataka police against the editor of a Kannada newspaper for publishing a news article alleging conflict within the family of Chief Minister H.D. Kumaraswamy.

The FIR has been filed against the editor-in-chief of Vishwavani, Vishweshwar Bhat, for publishing an article on Kumaraswamy’s son, Nikhil Kumaraswamy, who lost to Sumalatha Ambareesh, an independent candidate, in Mandya Lok Sabha constituency in the recent general election. The silence maintained by Congress president Rahul Gandhi on the Karnataka FIR, while he criticised the arrests made in Uttar Pradesh, is seen in political circles as double standards.