" The fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable. …. Is this a murder charge? … Court does not ordinarily entertain Article 32 but the Article is there in Constitution for those whose freedom is affected. When something is so glaring, can court hold its hands and say go to High Court?”.
These are some of the comments made by Justice Indiara Banerjee in the course of the Supreme Court granting bail to Prashant Kanojia, the joournalist who was arrested last Saturday by UP police on the charge of defaming UP chief minister Yogi Adityanath. It has become necessary for the highest court of the country to remind the ruling class that we have a constitution. The Court has also had to publicy share the concern that the governments of the day are using authority to flout the constitution.
The criminal offence Prashant Kanojia was charged with is that he posted a video in which a young woman informed the media outside the chief minister's office that she had made a marriage proposal to the chief minister, and added his comment to it. As per IPC 500, 505 and IT Act 67, that post was insulting to the chief minister and causing spread of obscenity in the country. On the grounds of the same, Ishika Singh, the head of a private news channel 'Nation Live' and its editor Anu Shukla were put behind bars on the counts of defamation and prapagating obscenity among the people.
Over the last five days, five people were arrested in different parts of UP on the allegation of maligning the chief minister's reputation through social media. One of them is Amit Sharma, who had been to Shamli district in western UP to report the derailing of a train. And the provisions under which he was arrested and tortured, are also the same. The charge sheet says that he tried to make a report that caused das defamation to the chief minister. Although Prashant Kanojia got bail thanks to the intervention of the Supreme Court, the others are still in detention.
What runs amok in Yogi's UP is an experiment of preventing criticisms of the ruling establishment by placing defamation laws over those of freedom of expression. The protest statement by Editors Guild against the arrest of journalists, raises the question how UP's police could register defamation cases suo motu, without any complaints, and arrest people including journalists widely. The court also observes that the arrests in UP were made without compliance with the rules regarding the preliminary steps before an arrest, or Supreme Court's guidelines. It is a serious violation of law that Kanojia was arrested without producing a warrant or obtaining the permission of the local magistrate. The Court's strong disapproval of the violation of law by the government itself, that is bound to enforce law, can be read in the words of Justice Indira.
Yogi Adityanath's UP is becoming notorious for vindictive actions. It is due to such daytime hunting that socially committed people, right from Dr Kafeel Khan to Amit Sharma, lost their peace in life. These arrests will only serve to instill a public notion that even criticising the government's policies and executive failures will be deemed as sedition and defamatory. It is apparently a government calculation that although they will not stand the test of the court, by re-creating fear it can slowly kill the criticisms being raised in the public against the government. The protagonists of Indian fascism need no external education to be convinced that people, who by and large are frightened of the police and widespread arrests, will opt to become silent; and then an autocratic social system in the garb of democracy can be established through it.
Instead of asking the question what was wrong with sharing a woman's statement in public about a chief minister, the court said it could not be a party to an act of depriving an individual of his fundamental right, at the same time when it did not approve of the tweet's content. In this observation one can glean an insight about the current weakness of the pillars of democracy. In the country where autocracy is creeping in through a democratic path, it is a great thing that the highest court is reminding rulers from time to time that we have a constitution.