Case Summary and Outcome

In April 2019, the High Court of Manipur in India released on bail, the journalist, Kishorchandra Wangkhem, who was detained under Section 3(2) of the National Security Act, 1980 (NSA), finding that the pictures and video clips that were posted by him on Facebook that formed the basis for arrest and detention were not supplied to him and therefore, the detention order was vitiated. Under Section 3(2) the NSA, a person can be detained at the satisfaction of the government to prevent any person from acting in a manner prejudicial to national security or public order. Kishorchandra Wangkhem was arrested on August 09, 2018 for defamation and statements promoting enmity between classes by the Manipur police  for pictures with captions he posted on Facebook criticising the government two days prior. On the next day, he was released on bail. He was arrested again on November 20, 2018 on the charge of sedition for posting a Facebook video critical of Chief Minister N. Biren Singh, Prime Minister Narendra Modi and the Rashtriya Swayamsevak Sangh, an organisation allied to the ruling political party. In the video, he called the Chief Minister of Manipur a puppet of the Prime Minister. Six days later, on November 26, 2018, Imphal’s Chief Judicial Magistrate granted Wangkhem bail. On November 27, 2018, when he was released on bail, a detention order under the NSA was passed against him by the District Magistrate, Imphal West District, Manipur and he was taken to Manipur Central Jail. The detention order dated  November 27, 2018 and grounds for detention dated December 1, 2018 stated that he had been arrested because he was a habitual offender who committed offences that “cause fear and alarm to the public” [para. 4]. To ensure that he doesn’t commit these offences again, an “alternative preventive measure” had to be taken. The Manipur High Court found that the detaining authority had not supplied Wangkhem the copies of Facebook posts and compact disc containing the videos uploaded by him, thereby preventing the journalist from making an effective representation against the detention order. Thus the Court directed Wangkhem to be released. 

Facts

On August 07, 2018, journalist Kishorchandra Wangkhem posted pictures with captions  criticising the government on his Facebook wall. A suo moto First Information Report (FIR) was filed against Wangkhem under Sections 500 and 505(2) of the Indian Penal Code (IPC)  which provide punishment for defamation and statements promoting enmity between classes. The Petitioner was arrested and remanded to judicial custody. Thereafter, by an order dated August 10, 2018, of the Chief Judicial Magistrate, Imphal, Manipur, (CJM) Wangkhem was released on bail.

On November 19, 2018, Wangkhem posted a video on his Facebook wall expressing frustration with the ruling Bharatiya Janata Party for celebrating Rani Laxmi Bai at the party head office in Canchipur, Manipur. He also mentioned that the present Chief Minister of Manipur is a puppet to the Prime Minister of India. Wangkhem criticised the ruling party’s efforts to create a pan-Hindu identity for India and promotion of Hindutva ideology over a secular state. He was again arrested on November 20, 2018 in connection with another FIR for the videos under Section 124-A/194/500 IPC for sedition, defamation and giving false evidence. The CJM released him on bail on November 26, 2018. 

The CJM recognised that the comments made by Wangkhem were expressing an opinion that constituted fair criticism against the public conduct of public figure.  In the order the CJM says that the Petitioner’s impugned speech was not seditious and was a “mere expression of opinion against the Prime Minister of India and Chief Minister of Manipur, which cannot be equated with an attack to invite people to violence against the Govt. of India or Manipur to topple it.” 

On  November 27, 2018, Wangkhem, was picked up by unidentified persons in police uniform and taken to Imphal Police Station where he was detained for about 5 hours. On the same day, a preventive detention order under Section 3(2) of the NSA was passed against him by the District Magistrate, Imphal West District, Manipur and he was taken to Manipur Central Jail. The State Government by an order dated December 07, 2018 in exercise of the powers conferred under Section 3 (4) of the NSA approved the order of detention passed by the District Magistrate. The NSA allows preventive detention on the discretion of the State or Union Government, if they believe that a person is acting in a manner prejudicial to the defence of India, the relations of India with foreign powers, the security of India or maintenance of public order. The detention can be up to 12 months without the detainee being brought before a court of law. Under the NSA, there is  an advisory board that reviews detentions. On December 13, 2018 the Advisory Board found that there were “sufficient grounds” for the detention of Wangkhem.

Wangkhem made representations to District Magistrate Imphal, State Government of Manipur and Government of India, stating that he had not been supplied with the copy of impugned videos and pictures of the posts made by him thereby pleading that such a non-supply of material forming the grounds of his detention under NSA had prevented him from making an effective representation against his detention order. However, the representations were rejected. On December 14, 2018, the State government exercising powers conferred under Section 12(1) of the NSA confirmed the detention order of the Petitioner and fixed detention period as twelve months. Thus, Wangkhem approached the High Court of Manipur challenging the order of detention. 

Decision Overview

Justice Jamir delivered the judgment on behalf of the Court. 

The main issue before the Court was whether the detention order dated  November 27, 2018 was vitiated in view of the non-supply of the impugned videos and pictures of the posts; thereby preventing the Petitioner from making an effective representation before the concerned authority. Wangkhem contended that his representation against his detention was not properly considered by the State and Central Government. He also argued that his representation should have been considered before the approval of the detention order by the Government. Per contra, Advocate General of Manipur and the Additional Solicitor General appearing for the Union of India argued that all the materials relevant under the detention order were supplied to Wangkhem. They further argued that the representation was disposed of within time and there was no requirement under law that the representation had to be disposed before the detention was approved. 

The Court perused the grounds of detention order dated December 1, 2018 and held that the detaining authority while coming to the subjective satisfaction that the Petitioner should be detained under the NSA had taken into consideration the FIRs against the Petitioner. This  indicates that the picture with the captions alleged to have been posted by the Petitioner on his Facebook Wall was taken into consideration by the detaining authority. However, in the representation dated December 5, 2018 the Petitioner clearly stated that such pictures with captions were not provided to him. There was also no proof to show that the Petitioner had been supplied the four video clips that were  also the basis of the detention order. Therefore, the Court found that the detention order dated November 27, 2018 stood vitiated on these grounds.