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Prashant Kanojia released on bail by the Supreme Court
"The arc of the moral universe is long, but it bends towards justice."

The whole world knows by now that journalist Prashant Kanojia was arrested  on Saturday last week for allegedly uploading a video on Twitter in which a woman is heard making some claims about Yogi Adityanath. 

The UP police caught him on Friday evening for allegedly maligning the image of Uttar Pradesh Chief Minister Yogi Adityanath. An FIR was lodged against Kanojia at Lucknow's Hazratganj police station on a complaint filed by Sub-Inspector Vikas Kumar. 

Senior superintendent of police (SSP) of Lucknow, Kalanidhi Naithani, said the initial probe provided evidence against Kanojia under Section 505 of IPC for making, publishing or circulating false statements, report or rumour and under Section 67 of the Information Technology Act for transmitting obscene material in electronic form.

Apart from Kanojia, Ishika Singh, who heads private news channel Nation Live and Anuj Shukla, its editor were arrested, in Noida on Saturday. 

On June 6, during a debate on the channel, the woman, whose video Kanojia shared, had allegedly made defamatory remarks against the state CM. On Sunday, the police added fresh charges against Prashant Kanojia. The police also sealed the premises of the private TV news channel in Noida for allegedly running without a license, a day after arresting the head and its editor.

The wife of Delhi-based freelance journalist Prashant Kanojia had moved the Supreme Court for his release.

Of course, we're living in democratic country and today the following news comes like a morning breeze in these politically murky times:

"The Supreme Court Tuesday came down heavily on Uttar Pradesh police for arresting freelance journalist Prashant Kanojia, saying that he should be immediately released on bail. The court, however, clarified that its order should not be seen as an approval of Kanojia's social media posts. Hearing a habeas corpus petition filed by Kanojia's wife, a vacation bench comprising Justices Indira Banerjee and Ajay Rastogi observed that the "liberty of a citizen is sacrosanct and non-negotiable" and that "it is guaranteed by the constitution and it cannot be infringed". Justice Banerjee asked how an arrest could be made over tweets, to which the Additional Solicitor General (ASG) appearing for UP government replied that Kanojia had made provocative tweets against gods and religion on previous occasions and therefore offence of public mischief under Section 505 of IPC was added in the list of charges. Expressing dissatisfaction over the prosecutor's remarks, the bench said that the Magistrate's order of remanding Kanojia till June 22 was "not appropriate".

The arrests sparked a huge debate on social media on freedom of expression and top editor's body in the country calling it an 'effort to intimidate' the media. The Editor's Guild of India has condemned the action against the media-persons and called it "an effort to intimidate the press, and stifle freedom of expression".

'We express our collective outrage at the manner in which Prashant Kanojia, Ishita Singh and Anuj Shuklahave been arrested by UP Police,' Indian Women's Press Corps, Press Club of India, South Asian Women in the Media Press Association said in a joint statement.

The petition claimed that necessary legal guidelines were not followed during the arrest and therefore it is illegal. Her lawyer told the court that Kanojia was "unceremoniously arrested by the UP police and it is illegal. Please take up the case today itself."

Kanojia was arrested after a complaint was filed alleging that he tried to 'malign' the Chief Minister's image. He had shared a video on Twitter and Facebook of a woman speaking to reporters outside Adityanath's office, claiming that she had sent him a marriage proposal.

This scribe would never approve the character assassination, defamation or detraction of any citizen for the ulterior motives.

However, as a layman I do often find that criminal defamation charges frequently make its way in news. Questions have been raised on whether defamation should be treated as a civil wrong or criminal offence or both. It is argued that criminalizing defamation has a harsh effect on the right to freedom of speech and expression provided under Article 19. There are many demands to make defamation only as a civil wrong.

According to section 499 of IPC, whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said. Section 499 also cites exceptions. These include "imputation of truth" which is required for the "public good" and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance.

Section 500, which is on punishment for defamation, reads: "Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."

In India, defamation is both civil and criminal offence. The remedy for civil defamation is covered under the 'Law of Torts.' In a civil defamation case, a person who is defamed can move either High Court or subordinate courts and seek damages in the form of monetary compensation from the accused.

Notwithstanding the expansive and sweeping ambit of freedom of speech, like all rights, the right to freedom of speech and expression is "absolutely sacrosanct" but"is not absolute." It is subject to the imposition of reasonable restrictions. It also said that the reputation of a person is an integral part of the right to life granted under Article 21 of the Indian Constitution and it cannot be allowed to be crucified at the altar of the other's right of free speech.

The irony in this case is that the complaint is not registered or filed by the Mukhya Mantri Adityanath himself but theFIR was lodged against Kanojia at Lucknow's Hazratganj police station by Sub-Inspector Vikas Kumar.

Section 199(1) the CrPCsafeguards the freedom of speech by placing the burden on the complainant to pursue the criminal complaint without involving state machinery.

Having said that, we must emphasize that criminal defamation should not be allowed to be an instrument in the hands of the state, especially when the Code of Criminal Procedure gives public servants an unfair advantage by allowing the state's prosecutors to stand in for them when they claim to have been defamed by the media or political opponents. And no-one should be convicted or arrested for criminal defamation unless the party claiming to be defamed proves, beyond a reasonable doubt that the charges are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intent to cause harm to the party claiming to be defamed. Public authorities, including police and public prosecutors, should take no part in the initiation or prosecution of criminal defamation cases, regardless of the status of the party claiming to have been defamed, even if he or she is a senior public official.

In the aftermath of the arrests, the Opposition has reacted sharply, with Congress president Rahul Gandhi saying that if "every journalist who files a false report or peddles fake, vicious RSS/BJP sponsored propaganda about him is put in jail, most newspapers or news channels would face a severe staff shortage".

Article 505 of the IPC states that:

1.   Whoever makes, publishes or circulates any statement, rumour or report

1.   with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in his duty as such; or

2.   with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or

3.   with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

2.   Statements creating or promoting enmity, hatred or ill will between classes ? Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

3.   Offence under sub-section (2) committed in place of worship, etc. ? Whoever commits an offence specified in sub-section (2) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.

Exceptions

1.   It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it 2in good faith and without any such intent as aforesaid.

Editorial NOTE: This article is categorized under Opinion Section. The views expressed in this article are solely those of the author and do not necessarily represent the views of merinews.com. In case you have a opposing view, please click here to share the same in the comments section.
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