The Supreme Court’s (SC’s) observations while granting bail to AltNews co-founder Mohammad Zubair should come as a huge relief to those who value personal liberty and free speech in times of majoritarian nationalism. The prosecution has been seeking protracted police custody for Zubair on the basis of a clutch of first information reports which claimed he was spreading hate speech and stoking communal disharmony. The apex court found little justification in continued custody given that all the complaints against him in different police jurisdictions originated from the same set of tweets. The observation that stands out is that the powers of arrest need to be used sparingly. The manner in which Zubair was arrested raises several questions. Called in for a case in which he already had court-granted protection against arrest, he was held by the Delhi Police based on a complaint by a Twitter user. Such instances of over-enthusiasm on arrests are one too many—from the arrest of a senior official of MakeMyTrip to that of a former Tamil Nadu minister (without any notice, in both cases). Indeed, the Supreme Court, in both these cases, castigated the authorities for such action. Even chief justice NV Ramana had flagged this fondness for indiscriminate arrests in a recent speech. In the present instance, local courts in both Delhi and Uttar Pradesh had denied bail to Zubair, ignoring the basic Constitutional guarantees on personal liberty. The apex court has done well in extending a legal shield to citizens against the state initiating criminal process in multiple places for the same offence.
The other observation of the SC that courts would do well to pay attention to pertains to freedom of speech. There are enough instances of vindictive action by the state designed to have a chilling effect on dissenters—from the days of the Emergency to recent arrests, whether in the Bhima Koregaon case or Zubair’s. The courts are in the best position to uphold freedom of speech in balance with security and law & order, rather than give in to political and public sentiments. The SC bench comprising Justices DY Chandrachud, Surya Kant and AS Bopanna said that it can’t “anticipatorily interdict him (Zubair) from exercising his right of free speech”. It even said that asking a journalist not to write was like asking a lawyer not to argue. To be sure, it was another SC bench that had prohibited Zubair from tweeting just days earlier while granting him interim bail, but the about-turn in the run up to the latest order is a welcome rethink. It should spur the judiciary to take a less expedient view of its role in justice delivery.
That said, the most important lessons from the apex court’s observations in the case are reserved for the state and its various arms. The SC’s caustic observations on the vicious circle created to trap a person in “endless rounds of proceedings before diverse courts” should expose the dangers of politicising the state machinery. Zubair’s lawyers had termed the manner in which the state has functioned in the present instance as “weaponisation of criminal law”. Ideally, SC’s position on the issue should be the default position of all courts. Hopefully, the latter will get the message, finally. Also, as the apex court has said earlier, India needs a bail law that removes judicial discretion in such matters.