Freedom of speech and expression not an absolute right: Bombay HC

PTI, Sep 11, 2020, 5:18 PM IST

Mumbai: The Bombay High Court on Friday said the freedom of speech and expression provided under Article 19 of the Constitution was not an absolute right.

The court made the observation while refusing to grant interim protection from arrest to a woman booked by the Mumbai and Palghar police for allegedly making offensive remarks on Twitter against Chief Minister Uddhav Thackeray and his son Aditya Thackeray.

A bench of Justices S S Shinde and M S Karnik, however, accepted the State government’s oral assurance that the woman, Sunaina Holey, will not be arrested in the case at least for the next two weeks.

The State, however, added that such relief will be subject to Holey visiting the Azad Maidan and Tulinj police stations Mumbai and Palghar district, respectively, for questioning, and “cooperating” with the police in their probe.

The bench also allowed Holey to approach the court at any time during this period in case the police decide to take any coercive action against her, or if any of her rights were breached.

Holey has approached the Bombay HC through her counsel Abhinav Chandrachud, seeking that all the charges against her be quashed.

As an interim relief, she had sought that the court grants her protection from arrest until her case was heard finally and the court took a decision on quashing the FIRs against her.

Holey has three FIRs filed against her, one in BKC cyber crime police station, another at Azad Maidan police station, and the third one at Tulinj police station in Palghar.

The FIRs were registered following complaints made by several persons, including by one Rohan Chavhan, a leader of the Shiv Sena’s youth wing Yuva Sena.

As per the complaints, Holey, 38, made offensive and defamatory comments against the CM and his son on Twitter.

She was arrested in August this year and released on bail in the case pertaining to the FIR registered against her by the BKC cyber crimes police.

On the remaining two FIRs, she was served notices under section 41A(1) of the CrPC, asking her to visit the concerned police stations for the probe.

On Friday, the state’s counsel Y P Yagnik told the court that Holey had not responded to the notices.

Advocate Chandrachud, however, said that his client was apprehensive that if she visited the police, she would be arrested. Therefore, he sought interim relief.

However, the bench said that interim protection from arrest could be granted only for arrest in a rare case.

But it noted that section 41 (A) provided that a person need not be arrested as long as he or she was cooperating with the police’s probe. And in case one is required to be arrested, the police must give prior notice for such arrest.

Yagnik said that the police wasn’t merely focused on arresting Holey, but it wanted to make progress in its probe.

The court accepted Holey’s submission that she will visit the two police stations next week.

Holey, a Navi Mumbai resident, has been booked under IPC sections 505 (2) for statements creating or promoting enmity, hatred or ill-will between classes and 153 (A) for promoting enmity between different religious groups, and under relevant sections of the IT Act.

According to police, she had made a series of posts on social media between July 25 and 28, including an offensive caricature of Uddhav Thackeray and Aditya Thackeray.

On Friday, while pressing for interim relief, advocate Chandrachud told the court that the case was a “rarest of rare” one as Holey was now being targeted for any and all of her tweets.

His client’s rights under Article 19 of the Constitution were being breached, he argued.

“This has now attained a political colour and for every tweet, I have an FIR registered. I am having to run from pillar to post,” advocate Chandrachud said.

The bench, however, reminded that one’s right to free speech and expression under Article 19 was not absolute.

“Perhaps citizens are under the impression that freedom of speech and expression is an absolute right, without any restrictions,” the bench said.

Chandrachud, however, said Holey was not under such impression.

The court will hear Holey on the issue of quashing the FIRs on September 29. It also directed the state to file its reply to Holey’s plea by then.