New Delhi, October 28: Ordinary citizens cannot be harassed for criticising the government, said the Supreme Court on Wednesday in a matter where a Delhi woman was summoned by the Kolkata police for an objectionable Facebook post. The woman had shared a crowded Raja Bazar area scene of Kolkata and questioned the Mamta Banerjee government’s seriousness to enforce the lockdown.

Finding the post too innocuous to be converted into a first information report (FIR), the bench of Justices DY Chandrachud and Indira Banerjee shuddered to think that if police were to issue summons to ordinary citizens in this manner, it will set a dangerous trend forcing Courts to step in and protect the constitutionally guarded fundamental right of free speech under Article 19(1)(a), the Hindustan Times reported.

The bench remarked, “If some person writes something against the Government in some country, are you (state) going to make him appear, say in Kolkata or Chandigarh or Manipur and tell him that now we will teach you a lesson. This is a dangerous proposition. Let this remain a free country.”

The apex court stayed the High Court order of September 29 asking her to appear in Kolkata while asking the petitioner to cooperate with the investigation. The investigating officer (I.O) was granted liberty to question the petitioner through video conferencing or even come to Delhi for confronting facts.

What prompted such harsh words from the top court was a petition filed by one Roshni Biswas, a resident of Delhi, who faced a FIR registered at Ballygunje police station on May 13 for an objectionable post attributed to her on a Facebook page. 

The FIR was registered for offences under the Indian Penal Code (IPC) involving promoting enmity between religious groups (Section 153A), outraging religious feelings (Section 295A), defamation (Section 500), breach of peace (Section 504), public mischief (Section 505) and other related provisions under the Information Technology Act and Disaster Management Act.

Roshni got a stay of arrest from the Calcutta High Court on June 5 on an undertaking that she will appear after lockdown is lifted. The Kolkata police issued her summons under Section 41A of the Criminal Procedure Code asking her to appear in Kolkata to be questioned in the case. She approached the Calcutta High Court to quash the FIR. While this petition was still pending, the HC directed Roshni on September 29 to appear before the police. She challenged this order in the top court.

Senior advocate Mahesh Jethmalani, appearing for Roshni, told the apex bench, “Where is a cognisable offence made out. Moreover, my client has denied that she has any connection with the objectionable post. They want to call me to Kolkata and put me under terror.”

What was attributed to her by the police were two posts on a Facebook page where she said, “The lockdown is not being followed at Rajabazar….During lockdown, thousands of people have come together and raising concerns as to whether the State administration would do something about it.” The FIR stated that the posts implied “the State administration was going soft on the violation of the lock down at Rajabazar as the area is predominantly inhabited by a particular community.” This area has a majority of Muslim population.

The FIR attached other web links to imply from the posts that “the State administration is complacent while dealing with lock down violations caused by a certain segment of the community”.

The state police denied any attempt to harass the petitioner. Senior advocate R Basanth, who represented the West Bengal government, said, “In Section 41A proceedings, Courts should not interfere. Why should the state be against her? She agreed before the HC to appear but did not do so. We only seek to question her and not harass her. Some persons cannot claim to be more equal than others.”

On a bare reading of the FIR, the bench remarked, “We will be the first institution in this country to tell citizens that if they have done wrong, they must answer to the law but not for this. We have to be here to ensure ordinary citizens are not harassed like this…We have strong reservations against people being called from one state to another just because they have criticised the government.”

The court issued notice on the petition and granted four weeks to the Bengal government to respond. Meanwhile, it directed the HC to proceed with the petition to quash FIR without being influenced by the present order.

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