Retired Supreme Court judge Justice Deepak Gupta on Tuesday said that questions arise on the Delhi Police for arresting journalist Mohammad Zubair for allegedly hurting religious sentiments even as suspended Bharatiya Janata Party Nupur Sharma is still free despite making controversial comments on Prophet Muhammad, Live Law reported.

“If she [Sharma] could say that…which had a much bigger propensity to incite violence… but she is not arrested, Zubair is...Then some questions do arise on the fairness of the police,” Gupta said, in an interview to Live Law.

The retired judge said that something was amiss in the way Zubair was arrested.

Several first information reports have been filed against Sharma in many states after she made the comments on Times Now television channel in May. She is yet to appear before the police for questioning.

However, co-founder of Alt News Zubair was arrested by the Delhi Police on June 27 based on a tweet that he had posted in March 2018.

The first information report against Zubair was based on a complaint by Delhi Police Sub-Inspector Arun Kumar, who said he was monitoring social media when he came across the March 2018 tweet after a handle named Hanuman Bhakt raised objections.

The handle had taken objection to Zubair’s tweet, showing a hotel signboard with the name “Honeymoon Hotel” repainted to “Hanuman Hotel”. The journalist’s lawyer has argued in court that the photo is a screenshot taken from a 1983 Hindi movie.

On Tuesday, Gupta said that nobody had complained about the movie for 40 years. “How was it [the tweet] reported based on one anonymous complaint?” he asked.

The handle that reported Zubair’s tweet had posted only one message on the microblogging site until June 27 evening and had only three followers.

Gupta also expressed surprise at the manner in which a complaint by an anonymous account was quickly investigated by the police.

“It is difficult to lodge complaints,” he told Live Law in the interview.. “In Supreme Court, we see cases in which women have complained about rape and their case has not been registered.”

The retired judge also said that police or a magistrate cannot authorise a fishing inquiry. A fishing inquiry refers to asking questions that are not connected to the subject matter of a case.

In Zubair’s case, the police seized his electronic devices and submitted them for scrutiny.

Gupta said that not just journalists and lawyers, but no citizen would like their electronic gadgets seized without reason due to privacy concerns.

He also said that magistrates being scared to grant bails even in smaller cases was a worrying trend. When the case is in the public eye, they are extra cautious, he added.

Also read: Six curious questions raised by the case against Mohammed Zubair

‘Criminal justice is sinking’

Apart from Gupta, several current and former members of the judiciary have also denounced the way Zubair is being tried in court.

Former Supreme Court judge, Justice Madan Lokur, said it was “difficult for our criminal justice system to sink lower than this”, The Wire reported on Sunday.

He was particularly appalled by a police officer leaking the Delhi Patiala House court’s order about Zubair’s 14-day judicial custody on Sunday, four hours before it was announced by the judges.

“Did you know that all efforts were made to find out the decision that Justice Jag Mohan Lal Sinha was going to deliver in the case against Mrs Indira Gandhi’s election?” he asked. “But nobody was successful. Now, if reports are to be believed, a senior police officer announces the decision in a case before it is delivered. What have we come to?”

In a separate interview with The Wire on June 28, Lokur had questioned the Supreme Court’s intentions when it pronounced the verdict in a case filed by Zakia Jafri and activit Teesta Setalvad.

On June 24, the Supreme Court dismissed a plea filed by Zakia Jafri and Setalvad, challenging the report of a Special Investigation Team that had cleared Narendra Modi, who was the Gujarat chief minister in 2002 when the riots took place. Zakia Jafri is the wife of Ehsan Jafri.

The court had said that the petition was filed “to keep the pot boiling for ulterior design”.

Two days later, Setalvad was arrested from her home for allegedly committing forgery and fabricating evidence in a case related to the 2002 Gujarat riots.

“The latest is how brazenly the police can frame charges with the help of Sanghis [members of the Rashtriya Swayamsevak Sangh] and the indifference shown by the courts in its intervention. Fact-checkers are punished with the help of fact twisters,” Lokur said.

Justice K Chandru, a former judge with the Madras High Court, said that the arrests of Zubair and Setalvad are examples of reasons why people are losing faith in the judiciary, The Wire reported.

Also read: ‘I hang my head in shame,’ says Kapil Sibal on the state of judiciary

‘Case against Zubair had no future’

Senior advocate Nitya Ramakrishnan said that the magistrate, who granted four-day police remand to Zubair, should have known that the case had no future as the alleged offence is four years old.

Advocate Shahrukh Alam, who practises at the Supreme Court, said that during an inquiry following an FIR on specific sections, “it is only those relevant investigations that are important,” The Wire reported.

She added: “When a single and specific FIR is turned into a ‘general purpose investigation vehicle’, that’s an abuse of process. Worse still, if it is used to make general-purpose insinuations about ‘foreign donations’, which are not the subject of investigation at hand, such as it is, the allegations have no relevance.”

On Saturday, Delhi Police added charges of criminal conspiracy, causing disappearance of evidence and violating foreign funding norms in the FIR against Zubair.

His lawyer, Senior Advocate Vrinda Grover, has told the court that the contributions were made to Alt News and not Zubair. The fact-checker website being registered under the Companies Act can receive foreign funding, the counsel added.

Also Read: ‘Attempt to shut the very critical work we do’: Alt News rejects charges of receiving foreign funds

Also read: How India has become a land of conspiracies that turns warriors battling injustice into villains

Sudden notice

While seeking Zubair’s bail, Grover had pointed at procedural violations and said that the journalist was being targeted for his work and because he was a Muslim.

Grover said that Zubair was served notice under Section 41-A of the Code of Criminal Procedure “at the last minute”. Under the section, the police can arrest a person, who has committed a cognisable offence, without an order from the magistrate.

Grover said that laws laid down in the 2014 Arnesh Kumar judgement could not be “reduced to a paper formality”.

The Arnesh Kumar guidelines state that arrest should be an exception in cases where the punishment is less than seven years’ imprisonment.

Delhi-based advocate Bharat Chugh said that notice under Section 41A is important as it allows an accused person to participate in the investigation, The Wire reported.

“It should be adequate notice, it should give a due opportunity to the accused to understand the allegations against them and to give a response to the allegations,” he said. “I don’t think in this case, Section 41-A was actually followed in its spirit. It may have been followed in letter, but not in spirit and intent,”

Also read: Mohammed Zubair case: ‘The power of arrest is exercised so casually in India today’