Siddique Kappan Case- "Everyone Has Right To Free Expression", Supreme Court Asks UP Govt How Seeking "Justice For Hathras Girl" Is A Crime

While hearing journalist Siddique Kappan's bail plea, the Supreme Court was unconvinced about the argument of the State of Uttar Pradesh that the documents allegedly seized from him were of provocative nature.

After noting that the documents were pamphlets calling for protests to seek justice for Hathras victim, the bench led by Chief Justice of India UU Lalit said that every person has the right to free expression and asked the UP Government if propagating an idea that a victim requires justice for the victim was a crime in the eyes of law.

Justice S Ravindra Bhat, who was also part of the bench, pointed out that after the 2012 Delhi rape-murder case, there were protests by people at the India Gate, which led to a change of law.

The discussion on this element started when Senior Advocate Mahesh Jethmalani, who was appearing for the State of Uttar Pradesh, listed out the material that the State had found against Kappan. This included one ID Card, allegedly associating Kappan with PFI (which was referred to as a terrorist organ by Jethmalani) and certain literature, which was alleged to be provocative and potentially dangerous.

At the outset, the bench enquired how the said literature was provocative in nature and if it was provocative, was there any attempt made by the accused to use the said literature. Sr. Adv. Jethmalani referred to the literature as "a toolkit for riots" and stated–

"The whole purpose of going there was to incite violence. That literature is a tool kit on how you incite violence and the run away from the scene of the offence and conceal your identity."

At this juncture, CJI Lalit asked what exactly was the nature of the literature. Senior Advocate Kapil Sibal, appearing for Kappan, pointed out they were pamphlets titled "Justice For Hathras Girl".

Here, the bench again asked Sr. Adv. Jethmalani which of the material in the literature was supposed to be potentially dangerous. To this, Jethmalani replied–

"The literature indicates that they were on their way to Hathras...This is the kind of literature they were going to distribute amongst the Dalit community... Justice for Hathras gang rape victim, I will read the whole thing, the document is very instructive".

Jethmalani then went on to read the pamphlet which narrated that a "19-year-old girl from Hathras village in India was brutally assaulted by four men and she succumbed to injuries in Delhi Safdarjung and the the body was cremated by the police in a horrifying video which shows the mother of the poor girl crying and begging for a chance to take her daughter home".

He alleged that the intention was to incite feelings of Dalits.  "So you play the optics to stir up feelings.The police barricaded the family inside their home and burnt the body without letting anybody know"(reading from the pamphlet). So the police are also roped in. So the whole propaganda will be, just for Hathras. This is not the Dalits themselves doing it but the PFI doing it...There are directions on how to send emails to authorities, social media campaigns. This is for spreading it to different platforms, they say that copy paste these emails but change few words."

However, the bench was not convinced with the argument and noted that everyone had a freedom to express themselves. CJI Lalit stated that–

"See every person has the right to free expression and therefore he is trying to propagate an idea that there is this victim who requires justice and therefore let us raise a common voice. Is that something like a crime in eyes of law?"

Justice Bhat added to the same by making reference to the the Nirbhaya protests held in Delhi in 2012. He stated–

"Similar protests were in 2012, you must remember at the India Gate. After that, there was a change in law. Sometimes these protests are necessary to highlight that there is a deficiency somewhere. So till now you have not shown anything which was provocative."

Jethmalani narrated that the documents had instructions on how to protect one self during riots, how to escape tear gas shelling by police etc. Here, Sibal highlighted that the documents were not even related to India and instead, related to the "Black Lives Matter" protests meant for Phoenix, San Diego etc. He further stated that the entire case was "not prosecution, but persecution."

When Jethmalani read out the portion "if you see black people, run with them", CJI Lalit commented, "So this appears to be somewhere from foreign country".

CJI also asked if the document in English was supposed to be for local circulation.

The Court ultimately granted bail to Kerala journalist Siddique Kappan, who has been under the custody of UP Police since October 6, 2020 in connection with the Hathras Conspiracy case.   It clarified in the order that it has refrained from dealing with and commenting on the progress of investigation and the materials collected by prosecution as the matter is at the framing of charge stage.

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