Arrest must not be used as a punitive tool, says Supreme Court in Mohammed Zubair bail order

Arrest is not meant to be and must not be used as a punitive tool, the Supreme Court has observed in its order granting interim bail to journalist Mohammed Zubair. The court added that the misuse of the power to arrest results in one of the “gravest possible consequences” of criminal law – the loss of personal liberty.

A bench comprising Justices DY Chandrachud, Surya Kant and AS Bopanna had granted bail to the Alt News co-founder on July 20 in six cases filed against him in Uttar Pradesh. The judgement was uploaded on the Supreme Court’s website on Monday.

“Individuals must not be punished solely on the basis of allegations, and without a fair trial,” the court remarked.

Zubair was arrested by the Delhi Police on June 27 for a tweet that he had posted in March 2018. The tweet showed an image of a hotel signboard repainted from “Honeymoon Hotel” to “Hanuman Hotel”. The journalist’s lawyer argued in court that the photo is a screenshot taken from a 1983 Hindi movie named Kissi Se Na Kehna.

Zubair was granted bail in this case on July 15. He, however, remained in jail as more cases were filed against him or older ones were resurrected by the Uttar Pradesh Police. One case each was filed in the districts of Sitapur, Lakhimpur Kheri, Muzaffarnagar and Ghaziabad and two in Hathras.

The cases against the journalist are related to satirical comments about television news anchors, allegedly hurting religious sentiments of the Hindu community and posting alleged inflammatory content about deities.

In its June 20 judgement, the court ordered transferring all first information reports registered against Zubair in Uttar Pradesh to the Delhi Police Special Cell.

The judges also disbanded a Special Investigation Team formed by the Uttar Pradesh government to investigate the FIRs against the journalist.

The court said that it found no reason or justification to deprive Zubair of his liberty any further.

“When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power,” the bench noted. “The criminal law and its processes ought not to be instrumentalized as a tool of harassment.”

It said that Section 41 of the Code of Criminal Procedure along with other safeguards in criminal law exist because they recognise the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual.

The section deals with the powers of a police officer to arrest a person.

The judges also said that from the facts of the case, it is evident that the machinery of criminal justice has been “relentlessly employed” against Zubair.

‘Vicious cycle of criminal process’

Remarking on the number of FIRs filed against Zubair in Uttar Pradesh, the Supreme Court said that Zubair is trapped in a “vicious cycle” of criminal proceedings where the process has itself become the punishment.

“Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned above, Zubair was subjected to multiple investigations across the country,” the bench said.

It added: “Consequently, he would be required to hire multiple advocates across districts, file multiple applications for bail, travel to multiple districts spanning two states for the purposes of investigation, and defend himself before multiple courts, all with respect to substantially the same alleged cause of action.”

The three-judge bench also dismissed the Uttar Pradesh government’s request to stop Zubair from tweeting.

“A blanket order directing the petitioner to not express his opinion – an opinion that he is rightfully entitled to hold as an active participating citizen – would be disproportionate to the purpose of imposing conditions on bail,” it said.

The court added that imposing such a condition would be tantamount to a gag order against Zubair and that such directives have a chilling effect on the freedom of speech.

“Passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession,” the court said.

Also Read:

• How Zubair found hope in jail: ‘If we have more interactions, people can change’
• Zubair’s bail is a bright spot – but India’s judiciary needs to do much more to protect journalists