The illusion/allusion of justice: Court orders in the Zubair and Mahmudabad cases

Recent events indicate that the constitutional guarantee of freedom of speech in India is increasingly in peril. Truth be told, the executive branch has, since time immemorial, made a mockery of this cherished right to further its political goals and to quash dissenting voices. But when courts don't see through these machinations and fail to protect the citizens' civil liberties, it becomes a cause for concern.

Two online posts recently came under the scanner of the courts. One called for the authorities to take action against someone who is notorious for hate speech, and another called for real representation of women on the ground, apart from optics, in reference to the recent press briefings on Operation Sindoor by two women officers of the Armed Forces. The men who posted each of these comments then found themselves in the police's crosshairs and moved the courts for relief.

There are many common threads between the two cases. Both the accused belong to the same minority and the first information reports (FIRs) emanated from BJP-ruled states. Both posts in question call out hate speech, hate mongering and other social ills.

In both cases, the police authorities have turned the meaning of the posts on their head. The courts have in both cases apparently failed to understand the intent behind the posts. In both cases, the courts have done the bare minimum and kept the accused out of jail. However, the observations made during the hearings and in the orders passed have serious implications for the future of freedom of speech in the country.

Let us now take a closer look at the orders passed in each of these cases.

Does calling out hate speech amount to inciting violence?

Mohammed Zubair, co-founder of fact-checking website AltNews, found himself in the dock for a tweet from October 2024 in which he posted an old video of controversial Hindutva ideologue Yati Narsinghanand. In his tweet, which now appears to have been deleted, Zubair called upon the authorities to pull up Narsinghanand for repeatedly making derogatory comments and hate speech against Muslims.

Among other things, the police accused Zubair of posting an old, edited video of Narsinghanand, who has faced previous cases for hate speech, contempt of court and derogatory remarks against women. After he was booked on a complaint by Narsinghanand's supporters, Zubair moved the High Court to quash the case.

At this point, it is pertinent to note that High Courts can employ their powers under Section 482 of the Code of Criminal Procedure (CrPC) [or Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)] to quash FIRs when an offence cannot be said to be made out, even if the accused person had committed the act alleged against him.

While refusing to exercise such powers to quash the case, the Bench of Justices Siddhartha Varma and Yogendra Kumar Srivastava stated,

"Even if the petitioner was tweeting truncated version of the speech of Yati Narasinghanand Giri, he was definitely trying to convey the gist of the speech of his and wanted State action against him. In this process whether secession or armed rebellion could be brewed is not for this Court to judge. The investigating agencies would be better equipped in these days with modern technologies to look into the allegations made."

The Court has basically said that it is not its job to decide whether Zubair's tweets can incite violence. The order contains no elaborate discussion on the provisions of law invoked against Zubair, save for an observation that "it cannot be said that the offences under Sections 196, 228, 299, 356(3), 351(2) of the B.N.S., 2023 are not made out".

Contrary to a recent Delhi High Court ruling, the Court has been swayed by the allegations contained in the FIR. 

It has instead left the matter to the "sagacity of the Investigating Agency" - the same investigating agency that is baying for Zubair's blood. If this is not an abdication of responsibility, what is?

The order then performs mental gymnastics to justify why the Court does not want to interfere in this case.

"A lot many psychological angles would have to be looked into. Not only that, the sociological built of the country would also have to be looked into."

What is interesting is that the Court in its order acknowledged that it has the power to stop the seemingly frivolous case in its tracks, but refused to do so. To its credit, it extended the interim protection earlier granted to Zubair. Small mercies.

"We are also conscious of the fact that the High Court has wide powers under Article 226 of the Constitution of India to prevent any miscarriage of justice and thus to ensure that no injustice is caused to the petitioner, in the event he is found to be innocent after the investigation, we are passing this order."

Just to give an example of the power High Courts have, the Karnataka High Court last year quashed a case against accused who were booked for hurting religious sentiments after they shouted slogans of 'Jai Shri Ram' in a mosque. Interestingly, this was one of the cases which clearly amounted to an offence, if the alleged acts were true.

Is bad timing reason enough to sustain a criminal case?

Next, we have the case of Ashoka University faculty member Ali Khan Mahmudabad, who was booked for a post that no one seems to have understood.

In a Facebook post, Mahmudabad wrote that with Operation Sindoor, India had sent a message to Pakistan that, "if you don’t deal with your terrorism problem then we will!"

He had also criticised those blindly advocating war, stating, 

"The loss of civilian life is tragic on both sides and is the main reason why war should be avoided. There are those who are mindlessly advocating for a war but they have never seen one let alone lived in or visited a conflict zone..."

He further asked right-wing commentators praising Colonel Sofiya Qureshi - who led the media briefing on Operation Sindoor - to also speak up for victims of mob lynchings and arbitrary demolitions of properties. Women empowerment must reflect on the ground, he added.

“The optics of two women soldiers presenting their findings is important but optics must translate to reality on the ground otherwise it’s just hypocrisy…For me the press conference was just a fleeting glimpse- an illusion and allusion perhaps- to an India that defied the logic on which Pakistan was built…”

What followed was two complaints – one by the Haryana State Commission for Women and another by a BJP leader – that ultimately led to his arrest in the wee hours of May 18. The assistant professor then moved the Supreme Court for relief.

The hearing at the apex court – the last bastion of excesses against citizens – raised many an eyebrow. While acknowledging the right to freedom of speech, the Bench of Justices Surya Kant and N Kotiswar Singh apparently had an issue with the timing of the post.

“Is it the time to talk about all of this? Country is already going through all this…Monsters came and attacked our people. We have to be united. Why to get cheap popularity on these occasions?”

In an apparent indictment of the tone of Mahmudabad’s post, Justice Kant went on to observe,

"Very unfortunate for a society with free speech when choice of words is deliberately made to insult humiliate and to cause discomfort to the other side. He should not have lack of dictionary words to use. He can use language which does not hurt sentiments of others and use a neutral language.”

The Court ultimately stayed Mahmudabad’s arrest, but once again, refused to quash the cases against him. By its own admission, the Court has not understood the proper import of Mahmudabad’s post. Quite bizarrely, it ordered the Haryana Police to constitute a committee of IPS officers to "holistically understand the complexity of the phraseology employed and for proper appreciation of some of the expressions used in these two online posts.”

Several questions arise from the proceedings and the order: is the timing and tone of speech (and not its content) enough to keep a criminal case running? Since when are IPS officers experts at deciphering “double meanings” and intention of language? Why give the same Haryana Police who arrested Mahmudabad free reign to appoint the committee members?

Another Bench of the Supreme Court recently lamented the fact that the police has not understood the meaning of freedom and expression even 75 years after the enforcement of the Constitution of India. The situation is more dire when the courts don’t fully understand the contours of Article 19(1)(a) and rather focus on the restrictions on that right.

To borrow from the Allahabad High Court's own words, the "sociological built" of this country is quite clear for all to see - those with political agendas initiate criminal cases against people who expose inconvenient truths (quite literally in Zubair's case). Police authorities - without application of mind and at the behest of their superiors - register such cases and arrest/question the accused on specious grounds. In such situations, it is expected that courts read between the lines (quite literally in Mahmudabad's case) and protect citizens who express dissent. While the courts did the bare minimum and kept the two accused out of jail, they chose not to exercise their sweeping powers to quash the cases, allowing the continued harassment of citizens who merely called for a more justiciable society.