The Supreme Court on Tuesday ordered the immediate release of Delhi journalist Prashant Kanojia who was arrested by the Lucknow police on June 8 for "objectionable" tweets on Uttar Pradesh Chief Minister Yogi Adityanath.
Terming his arrest "excessive", a bench of justices Indira Banerjee and Ajay Rastogi also questioned his judicial remand, saying a person can't be deprived of his fundamental right to liberty over social media posts and tweets.
"The law is very clear. A person can't be sent behind bars for this (tweets), liberty can't be taken away like this," the bench said.
The journalist's arrest had drawn condemnation from the Editors' Guild of India. A protest march was also organised here on Monday.
Dealing with the habeas corpus petition filed by Kanojia's wife Jagisha Arora, the bench said, "We have gone through the records. May be opinions would vary that these sort of things should not have been published, but the arrest (is too much)..."
Additional Solicitor General Vikramjit Banerjee, appearing for the Uttar Pradesh government, produced Kanojia's previous tweets, besides the "questionable one", to claim that he had made inflammatory statements earlier too.
"This is not the case of police arrest, you are entitled to prosecute him in accordance with law," the bench said, pointing out that the apex court itself feels the brunt of the social media at times and the matter should be left to people's wisdom.
The top court also wondered why judicial remand was granted against Kanojia, asking, "Is this a case of murder".
"A fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional magistrate passed an order of remand till 22.06.2019," it said.
The bench directed that Kanojia be released immediately on bail on conditions put by the jurisdictional magistrate.
"It is made clear that this order should not be construed as an approval of his tweets/posts on social media. This order is passed in view of the excessiveness of the action taken," the bench said.
The court added, "Needless to mention, proceedings against him would take place in accordance with the law."
Banerjee questioned the maintainability of the habeas corpus petition filed by the wife of 26-year-old Kanojia. The journalist had asked the Uttar Pradesh chief minister a satirical question on a woman's purported claim of love for him.
Banerjee said a person who was put in judicial custody can't question it through writ petition and that he has to approach the high court and challenge the judicial order.
"This court does not ordinarily entertain writ petitions, but when something is so glaring, the court would not hold its hand to simply say, go to high court. Liberty is granted by the Constitution as a fundamental right and it is non-negotiable," the bench said.
"The question is if he can be put behind bars... that is the only thing troubling us. Certainly freedom ends if it infringes upon somebody's right," the bench said.
Banerjee said one should understand what one says or puts out on social media as liberty demanded responsibility.
"We need not comment on the nature of the post or tweets on which the action has been taken. We are not inclined to sit back on technical grounds," the bench said, using its power under Article 142 of the Constitution to do complete justice to grant relief.
During the hearing, the court also questioned the penal provisions invoked against Kanojia.
Towards the end of his submission, Banerjee sought an apology from Kanojia after drawing a parallel with the case of BJP youth wing leader Priyanka Sharma, arrested in West Bengal for a meme on Mamata Banerjee. The court, however, said it was a different case.
Petitioner's counsel Nitya Ramakrishnan and Shadan Farasat did not have to open their argument as the apex court quizzed the Uttar Pradesh government throughout the proceedings and finally passed the order for release.