Violence Against Speakers / Impunity
Restrepo Barrientos v. El Colombiano Newspaper
Closed Expands Expression
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In June 2019, the Supreme Court of India, which is the apex court in the country, released on bail the journalist, Prashant Kanojia who was arrested by the Uttar Pradesh Police for a tweet he posted about a woman who professed her love for the Chief Minister of Uttar Pradesh, Yogi Adityanath and claimed they had been communicating . Proceedings were initiated against him under sections 500 (for defamation) and 505 (statements conducive to public mischief) of the Indian Penal Code, 1860; also sections 67 of the Information Technology Act (for publishing or transmitting obscene material in electronic form). Seeking the journalist’s release, Prashant Kanojia’s wife, Jagisha Arora approached the Supreme Court of India in a Habeas Corpus Petition. The Supreme Court held that an individual’s rights under Article 19 (right to freedom of expression) and Article 21 (right to life), are non-negotiable, and granted Prashant Kanojia bail. The court, however, made it clear that this bail order was “not to be construed as an approval of the posts/tweets in the social media.”
On June 06 2019, journalist Prashant Kanojia posted a tweet which contained an interview of a woman, by a local news channel, in which she professed her love for the Chief Minister of Uttar Pradesh. She claimed that she and the Chief Minister were in an online relationship. Along with the video, Prashant Kanojia’s tweet read,“Ishq chupta nahi chupaane se yogi ji”, which means that the Chief Minister could not keep his relationship a secret, even if he wanted to. This video was already in circulation and was being carried as a news item by many media/ news outlets.
On June 07, 2019, a First Information Report (FIR) was registered against Prashant Kanojia, in Hazratganj Police Station, Lucknow, Uttar Pradesh, for his alleged attempt at tarnishing the image of the Chief Minister, by making objectionable remarks against him. He was charged under Section 500 of the Indian Penal Code, 1860 (IPC) which prescribes the punishment for defamation and Section 505 of the IPC which prescribes the punishment for making statements conducive to public mischief or creating or promoting enmity, hatred or ill-will between classes; and Section 67 of the Information Technology Act, 2000 which prescribes punishment for publishing or transmitting obscene material in electronic form.
The journalist was arrested on June 08, 2019 in connection with his impugned speech. Against the arrest, Prashant Kanojia’s wife Jagisha Arora approached the Supreme Court in a Habeas Corpus petition. The Petitioner submitted that Prashant Kanojia was protected by his right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India, and his tweet was in any case, was a piece of news which was already widely in circulation. The Petitioner further stated that due process had not been followed, and Prashant Kanojia’s arrest was violative of his right to free speech, right to life and also the right to fair procedure prescribed in the Constitution of India. While refraining from making observations on the content and merits of the impugned speech, the court limited its order on whether the journalist “ought to have been deprived of his liberty” for his impugned speech.
Justice Banerjee and Justice Rastogi delivered a judgment in the matter.
The sole issue considered and decided by the court was whether the petitioner’s husband – Prashant Kanojia ought to have been deprived of his liberty for his impugned speech, before the case was finally decided.
The Petitioner argued that the charges against Prashant Kanojia wouldn’t lie, since his tweet was protected by his right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India, and was in any case a piece of news which was already widely in circulation. The Petitioner further stated that due process had not been followed, and Prashant Kanojia’s arrest was violative of his right to free speech, right to life and also the right to fair procedure prescribed in the Constitution of India.
The defence presented by the Respondent, the State of Uttar Pradesh was based on a jurisdictional challenge to the Habeas Corpus petition. The State contended that the Petitioner ought to have approached the jurisdictional High Court of the State of Uttar Pradesh, instead of approaching the Supreme Court at the first instance.
In its order, the Court, at the outset, stated that the right to life (Article 21 of the Constitution) and right to freedom of expression (Article 19 of the Constitution) are non-negotiable rights. While refusing to go into the merits of Prashant Kanojia’s impugned speech and limiting itself to the issue of his arrest, the court rejected the State’s arguments on jurisdiction, stating that the Court could not “sit back on technical grounds” [p. 3].
The Court further observed that even though ordinarily, the Supreme Court directs the jurisdictional High Court to be approached first “as a matter of self imposed discipline” [p. 2], since Article 32 on the right to approach the Supreme Court directly is a fundamental right in itself, it could not be “rendered nugatory in a glaring case of deprivation of liberty as in the instant case” [p. 3]. The Court categorically held that keeping Prashant Kanojia in custody for about 13-14 days for his impugned speech was impermissible.
The Court exercised its power under Article 142 of the Constitution of India (which provides that the Supreme Court has the power to pass decrees and orders as are necessary to do complete justice), and directed that Prashant Kanojia be released immediately subject to the bail conditions as prescribed by the relevant Magistrate. The Court held that the order was being passed specifically due to the excessiveness of police action, in Prashant Kanojia’s arrest.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court categorically held that Prashant Kanojia’s arrest was excessive in relation to the impugned speech. The Court refused to be bound by procedural sanctions of approaching the jurisdictional High Court and invoked its powers under Article 142 of the Constitution to do complete justice. However, the difficulty in treating this case as binding precedent in future cases is that the Court in its order has explicitly stated that this order was passed in view of excessive state action against the journalist. The threshold of violence that warrants the country’s highest court’s interference is high, and not entirely consistent.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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