The Supreme Court on Friday granted bail to Kerala journalist Siddique Kappan, jailed in Uttar Pradesh for nearly two years, saying “every person has freedom of expression”.

Kappan along with others were arrested on October 5, 2020 by the Uttar Pradesh Police under the Unlawful Activities Prevention Act (UAPA), while on their way to Hathras, to report on a 19-year-old’s gang-rape and murder.

A bench, headed by Chief Justice U.U. Lalit, noted that Kappan has been in custody for two years.

Senior advocate Mahesh Jethmalani, representing the Uttar Pradesh government, submitted that an ID card was found on him, allegedly associating Kappan with PFI and also certain literature, which was alleged to be provocative and also potentially dangerous. He referred to it as a toolkit for riots, and added the whole purpose of going there was to incite violence.

The bench queried how the literature was provocative and did the accused make any attempt to use this literature.

Senior advocate Kapil Sibal, representing Kappan, said there were pamphlets titled “Justice for Hathras girl”. He pointed out that after his apprehension in the present matter, the proceedings under the Prevention of Money Laundering Act, 2002 have also been initiated against the appellant, in connection of which the appellant may be required to attend the proceedings or to apply for bail.

The bench told Jethmalani: “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.”

“Is that something like a crime in the eyes of law?”

The bench, also comprising Justices S. Ravindra Bhat and P.S. Narasimha, added that there were protests at India Gate in 2011 and indicated Nirbhaya’s case.

“Sometimes protests are needed to bring a change. You know after that there was a change in laws….”.

Jethmalani argued that Kappan was paid to incite riots and that he is not even an accredited journalist and he belonged to the PFI.

Questioning the evidence against Kappan and that no explosives were found, and that material was not found with him but in the car, the bench queried: “What material was dangerous… Is there any literature which shows anything damaging”.

Sibal then asked the state government counsel to read out the literature found on his client.

Granting bail to Kappan, the bench said he has to report to the police in Delhi for the next six weeks and in Kerala after that. Kappan will be produced before a trial court in three days, which will release him on bail subject to conditions.

“The appellant shall deposit his passport if not already deposited with the investigating machinery before his actual release. The appellant shall not misuse his liberty in any manner and he shall not be in contact with any person(s) connected with the present controversy in question,” it said.

The bench, in its order, said: “We have been taken through some of the documents placed on record. At this stage we refrain from dealing with and commenting upon the progress and investigation and material gathered by the prosecution in support of its case as the matter is still to be taken up at the stage of framing of charges.”

The state government, in a written response, said: “The investigation has revealed that the petitioner (Kappan) is part of the larger conspiracy with the co-accused (including the financial launderer of CFI, Rauf Sharif) to foment religious discord and spread terror in the country, especially in the wake of anti CAA protests and violence, the Babri Masjid decision of this Hon’ble Court and the Hathras incident.”

It further claimed that the documents recovered from Kappan’s laptop and from his rented house in Delhi, establishes how the current PFI leadership was basically comprised of ex-SIMI (Students Islamic Movement of India — banned as a terrorist organisation) members.

The Lucknow bench of the Allahabad High Court had rejected Kappan’s plea for bail, and he then moved the top court challenging the order.