FB Post Row: Supreme Court Says Freedom Of Expression Must Be Defended

The Supreme Court has granted an interim stay on summons issued to a Delhi resident, accused of posting “objectionable” content on Facebook, criticising the West Bengal government.

A bench of Justices D.Y. Chandrachud and Indira Banerjee said the court should restrain the exercise of judicial review in the matter of police investigation. However, the bench added that it must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. “There is a need to ensure that the power under section 41A CrPC is not used to intimidate, threaten and harass,” the bench noted.

Section 41A of CrPC deals with notice of appearance before a police officer.

The bench was hearing a petition filed by one Roshni Biswas, through advocate Mahesh Jethmalani challenging the issuance of summons to her by police and the Calcutta High Court asking her to appear before the West Bengal police for questioning with regards to a Facebook post she had allegedly shared.

“We are, of the considered view that to require the petitioner at this stage to comply with the summons under Section 41A during the pendency of the proceedings before the High Court would not be justified in the facts as they have emerged in this case. Hence, we grant an ad-interim stay against the implementation of the direction of the high court requiring the petitioner to appear before the Investigating Officer at Ballygunge Police Station,” the bench said.

However, the apex court added that the petitioner must extend full cooperation to the investigating officer.

Senior advocate Mahesh Jethmalani, appearing on behalf of the petitioner, stated that the petitioner would cooperate in all respects though after the order issued on June 5, no query was addressed to the petitioner, despite five months having elapsed since then.

Senior advocate R. Basant, appearing for the state government, submitted that liberty may be granted to the investigating officer, if so required, to come to Delhi for the purpose of eliciting specific responses by way of clarification from the petitioner in regard to the alleged Facebook posts. The apex court acceded to the request of counsel for West Bengal government.

“The direction contained in the impugned order of the High Court requiring the petitioner to attend at the Ballygunge Police Station shall accordingly remain stayed pending further orders," the bench said.

The FIR registered by the police specifically refers to two posts, where Biswas had allegedly claimed that the lockdown guidelines were not being followed at Rajabazar in Kolkata. The post also allegedly raised concerns as to whether the state administration would do something about it. The posts imply the state administration is complacent while dealing with lockdown violations caused by a certain segment of the community, the FIR said relying on Facebook links.