KERALA UNION OF WORKING JOURNALISTS Vs. UNION OF INDIA & ORS

COURT NAME:  IN SUPREME COURT OF INDIA

JURISDICTION:  CRIMINAL ORIGINAL JURISDICTION

APPEAL NO:   WRIT PETITION(criminal) no(s). 307 of 2020

APPELLANT:   Kerala Union of Working Journalists

RESPONDENT:   Uttar Pradesh Government

JUDGE/ BENCH:   Former CJI N.V.Ramana, Justice A.S. Bopanna, Justice Surya Kant

DATE OF JUDGEMENT:   28 April, 2021

SUBJECT MATTER:   Habeas Corpus Petition

STATUES/ CONSTITUTION INVOLVED:   Indian Penal Code, Civil Code of Criminal

                                                                     Procedure, Constitutional Law

FACTS OF THE CASE:

• Siddique Kappan, a 42 year old journalist from Kerala and secretary of Kerala union of working journalists was one of the journalists who was detained in 2020, along with three others.
• The news writer was on his way to cover the situation amidst the tumultuous in HATHRAS, where in 2019 a dalit girl was brutally gang raped, where he got arrested in Mathura on 5 October 2020 without any prior information as provided under the Criminal Procedure Code,1973.
• A charge sheet was filed by the UP police and accused him that he was going to HATHRAS with the intention of creating ruckus and inciting violence covered under Section 107 of CrPC. Besides this he was accused of having links with the terrorist organisation i.e. Popular Front of India, thus charged with Section 124(Sedition), 120(Criminal Conspiracy), 153A(Promoting enmity), 295A(outraging sentiments) and Sections under UAPA and IT Act.
• A day after Kappan got arrested, the petition of Habeas Corpus was filed in the supreme court by the KERALA UNION OF WORKING JOURNALISTS under ARTICLE 32 of Indian constitution.
• On October 7, Kappan was sent to judicial custody as given by the local Mathura court. But as per the petition of habeas Corpus the SC said to approach the right court due to which his custody was extended till 12 November and the local court refused to take action due to the charges framed under Section 43(2) of UAPA.
• Kappan was not allowed to meet the lawyer and didn’t even sign the vakalat nama. Another suit amid ongoing proceedings was also filed by his wife for the immediate release of her husband. In between these petitions certain procedures like investigation process and filing of chargesheet got completed. Subsequently, another petition was filed by the petitioner-association for the release due to his deteriorating condition and the reports said that Kappan has tested positive for COVID 19 on 21 April, 2022 , he also fainted and fell down in the bathroom. Further, he got checked in K.M. MEDICAL college and found to be having multiple health issues including diabetes, heart ailment, blood pressure, and bodily injury. Thus the petition was filed so that the court can take the cognisance regarding the whole case.

LEGAL ISSUES RAISED

1. Whether the accused, an undertrial prisoner should be released for medical assistance?
2. Whether the right to life is not available to the persons who are under trial?
3. Is the petitioner detention lawful justified?

APPELLANT CONTENTION

• The counsel Mr. Kapil Sibal appearing on behalf of the appellant contested that the petitioner arrest was not lawful and without any prior information and the procedural investigation.
• The learned counsel also argued to grant him bail relying on the ARNAB GOSWAMI JUDGEMENT ^[1] to seek the release from custody due to the deteriorating conditions of his health and being shifted to the hospital, which is also showing in the medical reports that he is tested COVID positive.
• He also argued earlier to allow him to visit Kerala to see his mother who is in a critical condition and has been advised that she will not be able to survive for long.

RESPONDENT CONTENTION

• Tushar Mehta, Solicitor General of India appearing for the Government of Uttar Pradesh contravening the appellant contention said that FIR was registered before the arrest was made and proper investigation procedure was being followed.
• The learned counsel stated that the facilities provided in the jail to the petitioner are adequate and other inmates in the jail are also receiving the same medical facilities, thus no need to grant the interim bail for shifting him to the hospital.
• He also contested that further reports of Kappan showed his COVID reports as negative so there is no need to shift him to the government hospital. 

LEGAL SECTIONS INVOLVED

1. ARTICLE 32:
2. This article provides the individual the right to approach directly to the Supreme Court of High courts in case of violation of any fundamental rights guaranteed under Article (12-32). Under this article, the SC can issue writs for the enforcement of any fundamental rights which are violated. That’s why DR.B.R. Ambedkar has stated this article as the soul of the constitution.
3.  Habeas Corpus means “you have the body”. The writ is used to produce the individual in case of unlawful detention and thus safeguarding the individual’s freedom against the action of the state.

2. SECTION 107 OF CrPC:
3. This section gives the power to the executive magistrate to issue a bond to furnish security, when he receives any information regarding the breach of peace and security or any other unlawful activity, to the person who is causing the same. Basically this section is to maintain security for peace.

3. UAPA(Unlawful Activities Prevention Act):
4. This act gave powers to the Central Government to declare individuals as a terrorist without any judicial procedure so as to prevent the unlawful associations working against the integrity and sovereignty of the nation.

4. SECTION 124A:
5. This section makes the persons liable for any statement, either written or spoken, or by signs, or by representation, or otherwise, attempts or brings any hatred or contempt, which intends to encourage or produce enmity and dissatisfaction against the government established under law and order.^[2]

5. SECTION 153A:
6. This section penalises the person whose statement promotes enmity between different groups on various grounds including religion, caste, sex, language etc. or anything which is prejudicial to the harmony among people, thus imposing criminal liability and considered as non- bailable offence which can directly be tried by the first class magistrate.^[3]

6. SECTION 482 of CrPC:
7. This section preserves the inherent powers of the high court to prevent the abuse of process by any court so as to serve the ends of the justice. It gives the powers to quash the FIR if it fails to meet the ends of justice.^[4]

RATIONALE:

• The court hearing the contention on both sides stated and rejected the respondents contention that adequate medical facilities were provided inside the jail and other detainees were also receiving the same medications which could not deter the court from providing the medical facilities to the appellant and ordered to shift the petitioner to the government hospital for proper medication. As and when doctors certify him fit, he can be shifted back to the jail.
• The court also granted five day interim bail to Kappan to visit Kerala only to see his ailing mother and ordered his return on the 5th day with the conditions not to interact with any public media or any kind of interactions.^[5]
• The court further held that they were not examining the detailed facts on the issue of illegal detention but stated that petitioner was detained lawfully with the proper procedure by filing a chargesheet and the accused was presented to the jurisdictional court after arrest and FIR was also registered. Thus the court limited itself to the issue of providing adequate healthcare as the investigation of the detenu is complete.
• The court further held that besides investigation the detenu was able to avail other remedies as well including filing petitions under Article 32 and 226 of the Indian Constitution and 482 of CrPC for redressing the grievances.
•  In this particular case, the court held under the circumstances of the case that the fundamental RIGHT TO LIFE is even embraced when the person is an undertrial prisoner. This right is of the utmost importance and does not restrict itself because the person is still undertrial.

DEFECTS OF THE LAW

• The Apex court superficially stated that the detention was lawful and ignored the fact that earlier the arrest was made without the FIR being filed or without any prior information being provided as mentioned under the CODE OF CRIMINAL PROCEDURE, no matter that in between the proceedings all the procedure required was completed. The court prevents itself in going into the matter of the illegal detention and refrained from taking the matter.
• Besides that, the lower court has ignored the fundamental rights guaranteed under the Indian Constitution, resulting in the Supreme Court to take the cognisance of the case.

INFERENCE:

According to Article 21 of the Indian Constitution, no one may be deprived of their life or liberty unless a legally mandated procedure is followed. Two rights, namely the RIGHT TO LIFE and the RIGHT TO LIBERTY, are protected by this article and shall never be infringed upon. If the detainee in this case is denied temporary bail due to his health issues, his RIGHT TO LIFE will also be severely curtailed. I therefore concur with the court’s decision to grant bail and that the circumstances and facts behind the detention were appropriately presented.

• SHAGUN RANASARIA
• 1ST YEAR LAW STUDENT
• DR.B.R. AMBEDKAR NATIONAL LAW UNIVERSITY, SONIPAT

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^[1] Shubra Agarwal, The Siddique Kappan Case: How Freedom of Speech got Incarcerated, published on 23 June 2021, https://www.lawctopus.com/academike/journalist-siddique-kappan-case-status/, <accessed on 19-11-2023, 17:34>

^[2] Sedition, https://www.indiacode.nic.in <accessed on 18-11-2023, 16:50>

^[3] Vedika Goyal, Section 153 and 153A IPC,1860, published on 28 May, 2022, https://blog.ipleaders.in, <accessed on 19-11-2023, 11:55>

^[4] ADV. Tapan Choudhary, https://www.legalserviceindia.com/legal/article-2898-section-482-crpc-quashing-of-fir-guidelines-set-out-by-the-hon-ble-supreme-court-of-india.html, < accessed on 19-11-2023, 18:16>

^[5] Kerala Union of Working Journalists V. Union of India and Others, Published on 15 Feb, 2021, https://www.casemine.com, <accessed on 19-11-2023, 17:17>