“Democracy is a government by the people via open discussion. Democracy can neither work nor prosper unless people go out to share their views,” said a Delhi court, while upholding a citizen’s right to freedom of expression and granting bail to Alt News co-founder and journalist Mohammed Zubair in the 2018 tweet case. Zubair has been in custody since his arrest by the Delhi police on June 27, in connection with his tweet in 2018. Though Zubair has been granted bail by this court, he will continue to remain in jail as he has been booked in a total of seven cases, and has secured bail in two of these seven cases.
Additional Sessions Judge Devender Kumar Jangala, who was hearing Zubair’s bail petition in the 2018 case, held that Article 19(1)(a) of the Constitution of India gives freedom of speech and expression to its citizens, and that free speech is the proper foundation of a democratic society.
The court noted that the Delhi police’s case was that Zubair had added two words: "Before 2014" and "After 2014" to the image of the scene from a movie which showed a board of a hotel’s name changed from Honeymoon Hotel to Hanuman Hotel. The court said that this movie was released in 1983, there was no contention from the Censor Board, and that there has not been any issue with the movie till date.
“This movie was certified by the Central Board of Film Certification, which is a statutory body of the Government of India, and has been available for public view since then. No complaint is stated to have been filed till today that the said scene of the movie has hurt the feelings of a particular community of society,” the court said.
The judge also noted in the order the prosecution’s submission that the caption Zubair added to the tweet, has hurt the sentiments of Hindus and that adding the text “pointing towards the ruling political party to show the state of affairs in a prejudicial manner.”
However, the court held that followers of Hindu religion are tolerant and many institutions are named after Hindu gods and goddesses, and this alone cannot attract the offence of outraging Hindu beliefs under the IPC.
“Hindu religion is one of the oldest religions and most tolerant. The followers of the Hindu religion are also tolerant. Hindu religion is so tolerant that its followers proudly name their institution/organisation/facilities in the name of their Holy God or Goddess. A large number of Hindus proudly name their children in the name of their Holy God and Goddess. The website of the Ministry of Corporate Affairs, Government of India, reveals that a number of companies are incorporated in the name of holy Hindu Gods or Goddess,” the court said in its order.
“Naming of an Institute, Facility or Organisation or child in the name of Hindu Deity on the face of it, is not violative of Section 153A and 295A IPC unless the same is done with malice guilty intention,” the court added.
Responding to the public prosecutor’s submission that Zubair added the caption "Before 2014 and after 2014” to single out a particular political party — referring to the BJP coming to power in 2014, the court held that in Indian democracy, political parties are open to criticism, and mere criticism cannot amount to outraging religious beliefs under the IPC.
“The political parties are not shying away from the public to face the criticism of its policies. The voice of dissent is necessary for healthy democracy. Therefore, merely for the criticism of any time, it is not justified to invoke section 153A and 295A IPC,” the court said.
The court also noted that the FIR by the Delhi police was registered on June 20 on the basis of an anonymous user’s tweet flagging Zubair’s 2018 tweet. “I have perused the police file brought by the Investigating Officer, which reveals that till today, during the investigation, the police have failed to establish the identity of said Twitter user who felt offended by the tweet…” the court said. The court also noted that despite laws of criminal procedure, the police have not recorded the Twitter user’s statement or any other statement of a person who was offended by his tweet.
“It is also not out of place to mention that the alleged tweet of the accused was made in the year 2018, but till the date of registration of present FIR in 2022, no other complaint was received that the tweet of the accused is offensive to the Hindu community or showing disrespect to Lord Hanuman,” the court said in its order.
Regarding the allegations of FCRA violations made by the police against Zubair, the court noted that Zubair and Alt News had placed on record that only Indian citizens can contribute and that all measures have been taken to prevent any foreign contributions coming in. “The material placed on record by the accused prima facie shows due diligence taken by him as per Section 39 of FCRA,” the court said.
The court granted bail to Zubair noting that all the evidence is documentary in nature, recovery has already been made, Zubair has been in police custody and now in judicial custody, and so no further interrogation is required. No useful purpose is going to be served by keeping him behind bars, the court said.
The Additional Sessions court granted Zubair bail against a bail bond of Rs 50,000 and one surety of like amount. The court directed him to appear for investigation as and when summoned. The court has also directed Zubair not to leave the country without prior permission and to surrender his passport within 3 days of release from jail. The journalist was also ordered to ensure that his tweet or retweet, or any material on social media content is not even touching boundaries of the offence punishable under Section 153A and 295A of IPC.
Watch: This week on Let Me Explain, Anna Isaac looks at how govts are using multiple FIRs to keep journalists and critics in jail: