The Supreme Court on Friday granted bail to journalist Siddique Kappan, asserting citizens’ right to “free expression” and the utility of protest, citing how mass protests after the December 2012 Nirbhaya brutality had triggered amendments to criminal law.
It said Kappan, imprisoned in Uttar Pradesh since October 2020, shall be released from jail in Lucknow within three days by the trial court in Mathura, which can impose conditions. Once released, Kappan must remain in Delhi for six weeks and report to Nizamuddin police station every Monday.
After that, Kappan will be free to move to his native Malappuram in Kerala, but will have to report to the local police station every Monday. He has been asked to surrender his passport.
Arrested on October 5, 2020, Kappan has so far spent 700 days in custody, excluding five days of bail in February last year.
Fears have been expressed that Kappan may be arrested under the stringent money-laundering law PMLA in Uttar Pradesh during transit from Lucknow to Delhi, and may have to seek bail from a court in that state.
The bench of Chief Justice U.U. Lalit and Justices S. Ravindra Bhat and P.S. Narasimha referred to “the length of custody undergone by the appellant” while upholding Kappan’s challenge to Allahabad High Court’s August 2 order dismissing his bail plea.
“Every person has the right to free expression. He (Kappan) is trying to show that the victim needs justice and raise a common voice. Is that a crime in the eyes of the law?” the bench asked senior advocate Mahesh Jethmalani, who was representing the Uttar Pradesh government.
Kappan, Delhi-based retainer for a Malayalam news portal, was arrested in Uttar Pradesh with co-travellers who were members of the Popular Front of India (PFI), while heading to Hathras to cover the rape and murder of a Dalit teenager. He was accused of plotting to foment caste unrest and booked under the anti-terror law UAPA.
The bench observed that there was nothing wrong in citizens resorting to protests. It underlined how the Criminal Law Amendment Act, 2013, which increased the punishment for rape, had been enacted only after the nationwide protests triggered by the fatal gang rape of a paramedic on a Delhi bus in 2012.
“Similar protests were there in 2012… for Nirbhaya… at India Gate. You must remember 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,” Justice Bhat commented.
Senior advocate Kapil Sibal, appearing for Kappan, told the apex court that, since proceedings under the PMLA had also been initiated against his client, he might be arrested and would need to apply for bail in Uttar Pradesh.
The apex court said: “The appellant shall be entitled to initiate such (bail) proceedings and to that extent, the conditions stipulated in direction B above (six weeks’ mandatory stay in Delhi, etc) shall stand relaxed.”
Jethmalani said material seized from Kappan contained a toolkit on how to organise protests, protect oneself from tear gas shelling by the police, and intensify protests.
Sibal countered that the seized documents only referred to certain protests held in places like Phoenix and San Diego (in America).
Justice Lalit said: “So, these are documents that are related to somewhere from a foreign country. According to you this was supposed to be circulated in the local area (Hathras). Which language was it in?”
Jethmalani said: “English.”
Justice Lalit asked whether any explosive substance had been recovered from Kappan, and Jethmalani said it hadn’t.
When the lawyer said the prosecution was in possession of statements made against Kappan, the Chief Justice said: “Statement of co-accused cannot go against him.”