Case BriefsSupreme Court

Supreme Court: A vacation bench comprising of Indira Banerjee and Ajay Rastogi, JJ has  granted bail to journalist Prashant Kanojia who was arrested for allegedly making objectionable comments against Uttar Pradesh Chief Minister Yogi Adityanath on social media.

The Court said,

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

The State had argued that as per the verdict of the Court in State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, the question of whether a writ of habeas corpus could be maintained in respect of a person who was in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, had already been settled by this Court. Hence, the writ was not maintainable. Rejecting the said contention, the court said,

“As a matter of self-imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached 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 22.06.2019 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.”

Stating that it was not inclined to sit back on technical grounds, the Court directed that Prashant Kanojia be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate. It, however made clear that it had passed the order in view of the excessiveness of the action taken and that,

“this Order is not to be construed as an approval of the posts/tweets in the social media.”

[Jagisha Arora v. State of Uttar Pradesh, 2019 SCC OnLine SC 766, order dated 11.06.2019]

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Hemant Gupta, JJ issued a Mandamus restraining the state of West Bengal from taking recourse to any form of extra constitutional means to prevent the lawful screening of the feature film Bhobishyoter Bhoot that was made to support meaningful Bengali cinema.

Factual Background

  • Bhobishyoter Bhoot, a social and political satire about ghosts who wish to make themselves relevant in the future by rescuing the marginalized and the obsolete, has a UA certification for public exhibition, issued by the Central Board of Film Certification1 on 19 November 2018. Prior to its national launch, the film was slated for release in Kolkata and some districts of West Bengal on 15 February 2019.
  • Petitioner received a letter from the State Intelligence Unit calling upon him to arrange a prior screening of the film for senior officials of the intelligence unit of Kolkata police by 12 February 2019.
  • The letter stated that inputs were received “that the contents of the film may hurt public sentiments which may lead to political law and order issues”.
  • The petitioner categorically informed the Joint Commissioner of Police (Intelligence), Special Branch, Kolkata that his office does not have the jurisdiction to seek ‘advance’ private screening prior to the release for a “few senior officials” on a “priority basis” as sought. No further communication was received from the Kolkata police.
  • Petitioner proceeded with the release of the film on 15 February 2019. Within a day of its release in Kolkata and a few districts of West Bengal an overwhelming majority of the exhibitors abruptly took the film off their screens on 16 February 2019 without a communication from the producers.
  • The petitioners had argued that the State of West Bengal is misusing police power and acting as a ‘super-censor’ sitting atop the CBFC and is violating the Petitioners’ fundamental rights guaranteed under Articles 14,19(1)(a), 19(1)(g) and 21 of the Indian Constitution through the Kolkata Police which is under the Department of Home.

Overreach of powers by West Bengal Police

Noticing that the statutory authority to certify a film for public exhibition is vested in the CBFC under the provisions of the Cinematograph Act 1952, the bench said,

“The police are not in a free society the self-appointed guardians of public morality. The uniformed authority of their force is subject to the rule of law. They cannot arrogate to themselves the authority to be willing allies in the suppression of dissent and obstruction of speech and expression.”

The Court also noticed that the Joint Commissioner was not unmindful of the fact that the film had been slated for release within a few days of his communication in theatres across the city of Kolkata and the State. If there was any doubt whatever over the entitlement of the producers to have the film exhibited, it was laid to rest when the producers immediately informed him of the film being CBFC certified. Hence, the Court said,

“Such attempts are insidious and pose a grave danger to personal liberty and to free speech and expression. They are insidious because they are not backed by the authority of law. They pose grave dangers to free speech because the citizen is left in the lurch without being informed of the causes or the basis of the action. This has the immediate effect of silencing speech and the expression of opinion.”

Holding that the West Bengal police have overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission, the Court concluded,

“In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of ‘similar misadventures’. This cannot be countenanced in a free society. Freedom is not a supplicant to power.”

Direction

State of West Bengal has been directed to pay to the petitioners Rs. 20 lakhs compensation and Rs. 1 lakh towards cost of proceedings within a period of one month.

[Indibility Creative Pvt Ltd. v. Govt. of West Bengal, 2019 SCC OnLine SC 520, decided on 11.04.2019]

Hot Off The PressNews

Supreme Court: The Court has sought Centre’s response on a plea alleging prosecutions even after the Supreme Court scrapped Section 66 A of the IT Act under which a person could be arrested for posting allegedly offensive content on websites.

Taking serious note of the allegation, the Court said that the concerned officials will be arrested and sent to jail if it’s order dated 24.03.2015 scrapping the provision of the IT Act is violated. Appearing for the NGO PUCL, advocate Sanjay Parikh said more than 22 people have been arrested under the provision of the IT Act scrapped by the top court in 2015.

The bench of J. Chelameswar and RF Nariman, had, on 24.03.2015, held that Section 66A has no proximate connection with incitement to commit an offence. Testing the validity of the Section on the touchstone of the clear and present danger test or the tendency to create public disorder, it was held that Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.

(Source: PTI)

Case BriefsForeign Courts

Supreme Court of Appeal of South Africa: This appeal was filed before a 5-Judge Bench of Dambuza, JA., Lewis, Wallis and Zondi, JJA. and Matojane AJA against the order of Equality Court where statements made by appellant were considered to be amounting to hate speech.

Appellant assailed the erroneous reasoning of Equality Court which stated that since due to the statements made by appellant the people who would be most likely feel offended were Jews shows that the statements were directed towards Jewish Religion or ethnicity. He contended that the statements he made were directed towards supporters of the State of Israel from different ethnic and religious backgrounds, rather than to Jewish students. It was submitted that Section 16(2)(c) of the Constitution which delimits the freedom of expression, advocacy of hatred is excluded from protection where such hatred is based on race, ethnicity, gender or religion and constitutes incitement to cause harm.

High Court was of the view that nothing that appellant wrote or said transgressed the boundaries set under Section 16(2)(c), however hurtful or distasteful it was to some members of the Jewish and wider community. Many may feel offended by such statement, but that does not deprive them of constitutional protection of freedom of speech. Therefore, this appeal was upheld and order of equality court was set aside. [Bongani Masuku v. SAHRC, 2018 SCC OnLine ZACAC 6, dated 04-12-2018]

Case BriefsHigh Courts

“Democracy presupposes robustness in debates, which often turns the spotlight on public figures and public institutions-like media houses, journals and editors.”

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and A.K. Chawla, JJ. addressed the blazing issue of  “Cobrapost” sting operation all over the electronic and print media by addressing two appeals in a suit for permanent injunction.

Introduction:

The matrix of facts which follows in this popularly talked about case is that ‘Dainik Bhaskar Group’, i.e. the plaintiffs had complained of attempt at defamation for which they sought a permanent injunction against the defendants in the form of publishing subject content in any manner. For the scene of circumstances, impugned order had already been granted in the form of ex parte injunction.

Further, the points to be noted are that, the defendants in the present case are, first defendant a registered society which owns and operates a website in the name and style  of ‘Cobrapost.com’, the second defendant founder and editor-in-chief of the Forum of the above stated first defendant and third defendant claims to be a senior journalist associated with the Forum.

Allegations:

Plaintiff had received an email from ‘Cobrapost’ stating that the third defendant had some recorded conversation with the persons associated with plaintiffs revealing partisan ideologies, covert threat in the email of publicizing the conversation through the defendant’s program with clear suggestion that the said ideologies are endorsed by the plaintiff. Forum had also published an invitation on its website for the exclusive screening of its documentary that would allegedly expose biggest names in the Indian media. Plaintiff had denied all the stated allegations and said that it all amounts to media trial and gravely contravenes the principles of free speech and expression and in case any such conversation has been recorded then those views would be of the individuals and the plaintiffs. The counsel for the plaintiff also placed reliance on a PIL order Court on its own motion v. State, ILR (2008) II Del 44, to say that “sting” operations are suspect at the least and illegal; they cannot be used by the media to vilify anyone.

Appellant’s who are also the defendants stated that the impugned order made ex-parte was faulted. Further, it was submitted that without a discussion on the merits or the facts, an injunction order, as wide as the impugned order, amounts to a blanket censorship, which cannot be countenanced in a free country which cherishes its liberties and free speech. Reliance was placed on A. Venkatasubbiah Naidu v. S. Chellappan, 2000 (7) SCC 695, for the proposition that an appeal against a blanket injunction order is maintainable.

Hence, the High Court on consideration of each and every point submitted by the parties, concluded its decision by stating that an unreasoned order granting ex-parte injunction for the entire duration of the suit, is impermissible, for the stated statement it relied upon the case of Morgan Stanley Mutual Fund v. Kartick Das, 1994 (4) SCC 225, therefore, on this point the Court was of the opinion that ex parte injunction, which the impugned order gave, to subsist during the entirety of the pendency of suit, was unjustified. Further, mere frame of the relief of permanent injunction does not alter the principle.

For the above-stated reasons, the impugned order is set aside and matter remitted to learned Single Judge. [Pushp Sharma v. D.B. Corpn. Ltd.,2018 SCC OnLine Del 11537, decided on 28-09-2018]

Hot Off The PressNews

Supreme Court: In the plea filed by a man whose wife and daughter were allegedly gangraped in July last year on a highway near Bulandshahar, seeking transfer of the case to Delhi and lodging of an FIR against former Uttar Pradesh Minister Azam Khan for his controversial statement that the gangrape case was a “political conspiracy”, the bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the matter to a five-judge constitution bench to decide the question as to whether a public functionary or a minister can claim freedom of speech while airing views in a sensitive matter which is under investigation.

The Court also expressed concern over the misuse of social media platforms and said that people disseminated wrong information even about the court proceedings. Senior Advocate Fali S. Nariman, who is assisting the bench as an amicus curiae, submitted before the Court that a lot of misinformation and abuses are there on social media platforms and he has stopped looking at them. To this, Senior Advocate Harish Salve added that he had deleted his Twitter account.

The Bulandshahar rape case happened on the night of July 29 last year when a group of highway robbers stopped the car of a Noida-based family and sexually assaulted a woman and her daughter after dragging them out of the vehicle at gun-point. Azam Khan had, in a public address, termed the entire incident as a “political conspiracy only and nothing else”. Harish Salve submitted before the Court that ministers cannot have personal views on official business matters as whatever the person says, must reflect government policy.

Last year, on 29.08.2016, the Bench of Dipak Misra and C. Nagappan, JJ had asked Fali S. Nariman to assist the Court in determining, inter alia, whether the fundamental right of speech and expression would be governed under reasonable restriction of decency or morality or whether other preferred fundamental rights would also have an impact on it.

Source: PTI