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‘Social media users can not be arrested, Freedom of Speech protected under Article 19, Article 21’ of Indian Constitution: Supreme Court Judgement delivered blow to hyperactive, Politically motivated Police actions
TIWN June 23, 2019
‘Social media users can not be arrested, Freedom of Speech protected under Article 19, Article 21’ of Indian Constitution: Supreme Court Judgement delivered blow to hyperactive, Politically motivated Police actions
PHOTO : Supreme Court of India.

AGARTALA, June 22 (TIWN): BJP ruled states Police forces from UP to Tripura continue harassing social media users for posting comments against ruling party politicians. Even though as being parts of Tripura, a Northeast state has always been far from National media limelight, but in the ongoing chaos with the social media related arrests across India was long back started in Tripura. How a Government can attack the Govt critics illegally, none other than Tripura people had the best experience. Now, Police can arrest, but Police are not above the law but still social media user till date are confused what they can put in social media and what they can not.

Journalist Prashant Kanojia who was arrested over his sarcastic social media post, after he put a video clip with a tweet "Ishq chhupaye nahin chhupta Yogiji (can't hide love in this way, Yogiji)," on June 6 was released with full dignity by the Supreme Court. In the FIR, Lucknow police said he had made "objectionable comments" on Adityanath and maligned his image.  Two days after his tweeted, Kanojia was arrested without any arrest warrant and was dragged from Delhi to Uttar Pradesh. 

However, good news is that while giving bail order for Kanojia, Supreme Court of India has clearly stated, a person can not be arrested over his / her social media post.

So, in a state like Tripura where many have been arrested or cases are going on against social media users, it’s important to know for all of us, what Supreme Court of India said while releasing Journalist Prasant Kanojia.

In a divisional bench of Justice Ajay Rastogi and Justice Indira Banerjee, Supreme Court in response to a petition filed by Jagisha Arora, wife of Prasant Kanojia said, “In this Writ Petition under Article 32 of the Constitution of India, the petitioner has challenged the arrest and incarceration of her husband – Prashant Kanojia against whom proceedings have been initiated under Sections 500 and 505 of the Indian Penal Code read with Section 67 of the Information Techonlogy Act. We need not comment on the nature of the posts/tweets for which the action has been taken. The question is whether the petitioner’s husband-Prashant Kanojia ought to have been deprived of his 2 liberty for the offence alleged. The answer to that question is prima facie in the negative”.

“The fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable”, said SC.

“We are not inclined to sit back on technical grounds. In exercise of power under Article 142 of the Constitution of India this Court can mould the reliefs to do complete justice”.

“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. Needless to mention that the proceedings will take their own course in accordance with law. The writ petition is disposed of accordingly”, said SC.

So, under Article 19 and 21, Social media users need not to be afraid. Let us know what is Article 19 and Article 21 :

Article 19 : Article 19 of Constitution of India and Right to Freedom. Article 19-22 (Right to Freedom) deal with the different aspects of Personal Liberty, the basic right of a citizen in a democracy. These articles are as follows: Article 19: Protection of certain rights regarding freedom of speech, etc.

Article 21 : Article 21 reads as: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty. This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of Article 21.

Article 21 secures two rights:

1)  Right to life, and

2) Right to personal liberty.

The Article prohibits the deprivation of the above rights except according to a procedure established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).

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