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Journalist Prashant Kanojia be released immediately, right to liberty 'non-negotiable': SC

New Delhi: Directing immediate release on bail of journalist Prashant Kanojia, arrested for allegedly making objectionable comments on social media against Uttar Pradesh Chief Minister Yogi Adityanath, the Supreme Court Tuesday said fundamental right to liberty is "sacrosanct" and "non-negotiable".

The apex court clarified however that granting bail to Kanojia cannot be construed as approval of the posts or tweets.

The order is being passed in "view of the excessiveness of the action taken", it said, making it clear that the proceedings against the journalist will go on as per the law.

The top court slammed the Uttar Pradesh government for arresting the scribe and observed that fundamental right guaranteed under the Constitution cannot be infringed upon by the state.

"May be, we don't appreciate these tweets, but the question is whether he should be behind bars for these social media posts," it said after perusing the tweets.

It was a "glaring case of deprivation of liberty" as Kanojia has been remanded to almost two-week judicial custody for putting up posts or tweets in social media, said a vacation bench of Justices Indira Banerjee and Ajay Rastogi.

The bench was hearing a habeas corpus petition (a writ for producing a person who is under arrest or in unlawful detention before a court) filed by Kanojia's wife, Jagisha Arora, challenging his arrest.

"We direct that the petitioner's husband be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate. It is made clear that this order is not to be construed as an approval of the posts/tweets in the social media. This order is passed in view of the excessiveness of the action taken," the bench said in its order.

Kanojia had allegedly shared a video on Twitter and Facebook wherein a woman is seen speaking to reporters of various media organisations outside the chief minister's office in Lucknow, claiming that she had sent a marriage proposal to Adityanath.

An FIR was registered against Kanojia by a sub-inspector at the Hazratganj police station in Uttar Pradesh last Friday in which it was alleged that accused made "objectionable comments against the CM and tried to malign his image".

During the hearing, the apex court said it is granting bail to Kanojia as it disapproves the deprivation of right to liberty by the state.

"A citizen's right to liberty is sacrosanct and non-negotiable. It is a fundamental right guaranteed under the Constitution and can not be infringed upon by the state," the bench said and asked the state to show "magnanimity" in releasing him.

The bench also observed that even courts have to bear the brunt of social media. "Sometimes even we have to suffer the brunt of social media. Sometimes it is just and sometimes it is unjust but we have to exercise our powers."

It said the court need not comment on the nature of the posts or tweets for which action has been taken against the journalist.

"The question is whether the petitioner's husband-Prashant Kanojia ought to have been deprived of his liberty for the offence alleged. The answer to that question is prima facie in the negative," the bench noted in its order.

"The fundamental rights guaranteed under the Constitution and in particular Articles 19 (freedom of speech and expression) and 21 (right to life and liberty) of the Constitution of India are non-negotiable," it said.

Additional Solicitor General (ASG) Vikramjit Banerjee and advocate Swarupama Chaturvedi, appearing for the Uttar Pradesh government, said a habeas corpus plea cannot be entertained as the accused is in judicial custody.

The ASG argued that a remand order was passed by the jurisdictional magistrate and the petitioner should have first approach the Allahabad High Court.

He said the plea was "not maintainable" and the apex court does not ordinarily entertain writ petitions unless the high court has first been approached.

To this, the bench said, "The law is very clear. A person cannot be deprived of his fundamental rights. Even if it is an Article 32 petition, the Supreme Court can entertain it and the court can not keep its hands folded when there is deprivation of right to liberty."

It noted that as a matter of "self imposed discipline and considering the pressure of mounting cases on this court", it has become the practice of top court to "ordinarily" direct the petitioner should first approach the high court even in cases of violation of fundamental rights.

"However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till June 22, 2019 which means that the petitioner's husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media," the bench said.

"We are not inclined to sit back on technical grounds. In exercise of power under Article 142 (enforcement of decrees and orders of Supreme Court) of the Constitution of India this Court can mould the reliefs to do complete justice," the bench said while disposing of the petition.

During the hearing, the bench questioned the almost two week long judicial custody of Kanojia and said, "Is this a case of murder?"

"In the facts of the case, a person can't be allowed to stand 11 days behind the bars," the bench said, adding that "the person is behind the bars, which is troubling us".

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