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Despite SC's Guidelines on Arrests & Freedom of Speech, Zubair Stays in Custody

In Arnesh Kumar vs State of Bihar (2014), the Supreme Court had emphasised that arrests should be an exception.

Published
Law
8 min read
Despite SC's Guidelines on Arrests & Freedom of Speech, Zubair Stays in Custody
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Mohammad Zubair is a journalist, a fact-checker and the co-founder of Alt-News. Given the (feather-ruffling, cage-rattling) nature of his work, he is also often a recipient of vitriol on social media, and an accused in a peculiar array of court cases.

In the latest dispatch of bizarre cases against Zubair — after he was booked for using the term "hate-mongers" against Hindutva leaders who anyway have been accused in hate-speech related cases — Zubair has now been arrested for a tweet he made in 2018.

Zubair was arrested on Monday, 27 June, and remanded by the duty magistrate to one-day police custody. On Tuesday, the Patiala House Court extended the police remand by four days.

The grounds cited by the magistrate, in Tuesday's remand order, were:

  • "The mobile phone/laptop of accused used by him for posting the tweet in question is to be recovered at the instance of accused Mohammed Zubair from his Bangalore residence..."

  • "Mohammed Zubair has remained non-cooperative and the disclosure statement on record..."

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Court & FIR Cite Different Charges

While the FIR copy accessed by The Quint says that Zubair has been booked under Sections 153A (promoting enmity between different groups) and 295 of the Indian Penal Code (IPC), the remand order indicates Zubair is being alleged to have committed offences under Sections 153A and 295A instead.

This is crucial because while Section 295 deals with injuring or defiling place of worship, Section 295A pertains to deliberate and malicious acts, intended to outrage reli­gious feelings.

The contentious tweet for which Zubair has been booked in this case carries a picture of the signboard of a hotel visibly changed from 'Honeymoon Hotel' to 'Hanuman Hotel.' It is accompanied by the text: “BEFORE 2014: Honeymoon Hotel. After 2014: Hanuman Hotel”.

The picture, however, is neither of a place of worship, nor was it clicked by Zubair. He is not even the only person to share it. It is a screenshot of a scene from a 1985 comedy film Kissi Se Na Kehna, directed by Hrishikesh Mukherjee, and has been shared by various Twitter users over the years in different funny contexts. In fact, it even was the cover-image for an Indian Express article.

Thus, given there was no defiling (or even editing by Zubair) and no real place of worship involved, no case of injuring or defiling a place of worship (295) can be made out on the basis of his tweet.

But even if the court's interpretation of the FIR is to be believed, and the charge against Zubair is actually of Section 295A (along with 153A), the arrest and remand of Zubair should be a matter of serious concern, given how it contorts the law to keep him behind bars.

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Should Zubair Have Even Been Arrested in the First Place?

The key point to note here, neither of the offences under which Zubair has been charged are punishable by more than three years. Therefore, neither offences can be dubbed ‘heinous’ – a term used for offences where the maximum punishment is 7 years or more.

This is important, because in 1994 (Joginder Kumar vs the State of UP), the Supreme Court advocated restraint and advised against automatic arrests in offences that were, prima facie, not heinous. The court further said:

“No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.”

It is also of consequence to note that the complaint on which the FIR was based was filed by a Delhi Police officer after it came to their notice that a Twitter handle named Hanuman Bhakt had shared Zubair’s tweet and sought action against him alleging that “Linking our God Hanuman ji with Honeymoon is a direct insult of Hindus because he is a brahmachari”.

But the Supreme Court had categorically stated:

“It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.”

Further, Zubair was called by the special cell, Delhi for investigation in a 2020 case — for which he already had protection from arrest, on the day he was arrested in this latest case. Thus he had gone to the police for an entirely different matter.

As per the magistrate’s order Zubair was issued notice under 41 A of the CrPC (and is part of the police file) prior to his arrest. However, as per Soutik Banerjee, one of the lawyers representing Zubair, he was given notice only at around 5:30 pm on Monday and arrested at approximately 6:45.

In Joginder Kumar, the top court had said:

“Denying a person of his liberty is a serious matter… Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”
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The Arnesh Kumar Judgment & a Message for Magistrates

Further, in Arnesh Kumar vs State of Bihar (2014), the Supreme Court had emphasised that arrests should be an exception, in cases where maximum punishment is less than seven years of imprisonment. Thus the judgment expects the police to determine whether an arrest is even necessary, in the first place, under provisions of Section 41 of the CRPC.

Section 41(1)(b) prescribes additional conditions that have to be satisfied before the police can make any arrest. The police have to believe that the person’s arrest is required:

  • to prevent them from committing a further offence;

  • for proper investigation of the offence;

  • to prevent them from tampering with evidence;

  • to prevent them from threatening/influencing witnesses;

  • to prevent them from absconding

There can be no arrest unless the police is satisfied of these conditions.

In Arnesh Kumar, the top court observed that the problem was not just that police officers were ignoring the law and arresting people without being able to satisfy these conditions, but that it also extended to magistrates, who were not doing their job of ensuring that the police were following the law.

"Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused.”

To ensure that police investigations are not hampered, Section 41A was also added to the CrPC, which gave the police powers to issue notices to appear before a police officer in such cases. If the person complies with the notice and cooperates, then the person is not to be arrested.

In Zubair's case the period between the issuing of notice and his actual arrest appears to be too limited to draw any logical conclusion about whether he complied or not.

Further given that Zubair's tweet is in the public domain, and the image appears to be exactly as in the film, it remains unclear why his presence in police custody is required for further investigation. Even if his mobile phone was sought to be confiscated from his house in Bangalore and there was some distinct possibility of him tampering with whatever the evidence may be, could that not have been done while he was allowed to at least return to his residence in Delhi?

The Magistrate could have easily imposed any conditions necessary to ensure that he does not leave town, such as by marking attendance at the police station.

But somehow the court did not seem too keen on his release, even maintaining that the submission that the photograph in the tweet was part of the 1983 movie are “of no assistance to the accused at this stage.”

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It may be worth recalling that allowing bail to Arnab Goswami, in an abetment to suicide case, the Supreme Court had in 2020 said:

“The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.”

Limitation Period: A Possible Bar?

Besides, Section 468 of the Code of Criminal Procedure (CrPC) places a bar on taking cognisance after the lapse of the period of limitation.

The period of limitation, in this case, is three years (as punishment for both the offences falls between one to three years), and four years have passed since the tweet was first made.

In general, an offence is said to be committed when the act giving rise to the offence takes place, which would be on the date the tweet was made.

Given that the tweet was made in public domain and was accessible to all, the period of limitation (under Section 469 (1)(a) of the CrPC) will arguably commence on the date that the tweet was made.

While the public prosecutor did not address the issue of limitation during this remand hearing, in future cases they might seek to argue that this was an offence which the victim was not aware of and nor were the police, in which case the period of limitation runs from when the victim/police first get to know about the offence (Section 469(1)(b) of the CrPC).

However, as the tweet was in the public domain all this time, the courts would be well within their rights to reject the case for falling outside the limitation period.

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Intent as an Essential Ingredient

Most importantly, however, intent is an essential ingredient under both Sections 295A and 153A of the IPC.

In Ramji Lal Modi vs State of UP, the Supreme Court upheld the validity of Section 295A, but also categorically stated that it:

“Does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.”

The judgment goes on to state:

“Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section (295A). It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class."

Zubair’s tweet neither named a specific community nor resulted in any form of disharmony or public order issue. It was a reiteration of an old joke from an old film, captioned like a political satire. This is evident given the fact that it has been around since 2018 and the police only just woke up to it.

Further in Ramesh vs Union of India, the court had held that an “alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”

In Mathivanan vs Inspector of Police & Ors, the Madras High Court had even gone on to state that right to be funny can be "mined in Article 19(1)(a) of the Constitution of India".

Zubair's tweet was evidently made in the spirit of humour and the fact remains that Freedom of Speech and Expression is granted as a fundamental right by Article 19(1)(a) of the Constitution of India. Article 19(2) allows for reasonable restriction to be imposed on the same when a question of public order arises.

However, as stated above, no public order issue had emerged in the four years of the tweet being around that can be attributed to it.

Thus, in summation, a very simple question begs to be asked: why keep a fact-checker locked up right now for a four-year-old minor expression of political satire, employing an old joke from a film that has not even been banned in India?

And if this is how it is going to be, should all satirists, artists, writers, political commentators and journalists, put down their pens, quit Twitter, close their minds and shut shop — because what, if four years later, somebody doesn't like a joke they made or even reiterated for a chuckle or two?

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

Read and Breaking News at the Quint, browse for more from news and law

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