New Delhi Ordinary citizens can't be harassed for criticising the Govt, the Apex Court said on Wednesday in a matter wherein a Delhi woman was summoned by Kolkata Police over a Facebook post that she shared of a crowded Raja Bazar area & questioned the Mamta Banerjee-led Govt’s seriousness in enforcing the lockdown imposed to fight Coronavirus.

Finding the post too innocuous to be converted into a first information report (FIR), the bench of justices DY Chandrachud & Indira Banerjee said that if police were to issue summons to ordinary citizens in such a manner, it would force the courts to step in & protect the constitutionally guarded fundamental right of free speech under Article 19(1)(a).

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 & tell him that now we will teach you a lesson? This is a dangerous proposition. Let this remain a free country".

The Court stayed a HC order of Sept 29 asking the woman to appear in Kolkata while asking the petitioner to cooperate with the investigation. The investigating officer (IO) was granted liberty to question the petitioner through video-conferencing or even travel to Delhi to confirm facts.

The Court was hearing a plea filed by Roshni Biswas, a resident of Delhi against whom an FIR was registered at Ballygunje police station on May 13, 2020 for an allegedly objectionable post attributed to her on a FB 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) & other related provisions under the Information Technology Act & the Disaster Management Act.

Biswas got a stay on arrest from the High Court of Calcutta on June 5 on an undertaking that she would appear after the lockdown was 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 HC to quash the FIR. While this plea was still pending, the high court directed Biswas on Sept 29 to appear before the Police. She challenged this order in the Supreme Court.

Senior Lawyer Mahesh Jethmalani appearing for Biswas told the bench, “Where is a cognizable offence made out? Moreover, my client has denied that she has any connection with the objectionable post. ”

The Kolkata Police have attributed to Biswas two posts on a FB page on the lockdown not being followed in Rajabazar, alleging that thousands had gathered there & that the state wasn’t doing anything.

The FIR said that the posts implied “the state administration was going soft on the violation of the lockdown at Rajabazar as the area is predominantly inhabited by a particular community”. The area has a majority Muslim population.

The State Police denied any attempt to harass the petitioner. Senior Lawyer R Basanth who represented the West Bengal Govt 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 & not harass her. Some persons cannot claim to be more equal than others.”

The Court didn't agree.

“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.”

Striking a balance between the citizen’s right to free speech & police’s power to investigate, the Court directed a stay on the HC direction asking the petitioner to appear. The Court issued a notice on the petition & granted four weeks to the West Bengal Govt to respond. Meanwhile, it directed the HC to proceed with the petition to quash the FIR without being influenced by its order. 

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