The Supreme Court on Friday, 8 July, granted five-day interim bail to Alt News co-founder Mohammed Zubair in Uttar Pradesh police's FIR against him over his reference in a tweet to certain Hindu seers as ‘hatemongers.’
"Zubair will be granted interim bail in relation with the FIR dated 1 June 2022," the top court said but also specified that this order pertains to the ‘hatemongers’ case FIR, and not any other FIR against the petitioner.
The court also further ordered that the bail is subject to the following conditions:
Zubair shall not put up any tweet;
Not tamper any evidence electronic or otherwise in Bengaluru or anywhere else;
Not leave the jurisdiction of the Delhi court (where he is required in connection with another FIR)
The matter was heard by a division bench of Justices Indira Banerjee and JK Maheshwari. They also noted the solicitor general's submission that Zubair is presently in judicial custody in connection with a different offence, registered in Delhi, and said:
"We are not concerned with any FIR other than the FIR dated 1 June 2022."
This means that even though Zubair has got bail in this particular case registered by Uttar Pradesh police, he will not immediately be released from custody.
The matter has been listed for further hearing on 12 July before an appropriate regular bench.
The journalist is in judicial custody in connection with an FIR registered by the Delhi Police for allegedly hurting religious sentiments and promoting enmity through his tweet made in 2018, in which he had shared an image from a Hindi film that showed the signboard of a hotel visibly changed from 'Honeymoon Hotel' to 'Hanuman Hotel.' The image was accompanied by the text: “BEFORE 2014: Honeymoon Hotel. After 2014: Hanuman Hotel”.
According to Live Law, Senior Advocate Colin Gonsalves had sought urgent listing of the petition in connection with the "hatemongers" FIR, stating that there have been death threats against Zubair.
“A look at the FIR shows that there is no crime... there are death threats against him. I am really worried.”Colin Gonsalves, according to Live Law
Apex Court's Order
The Supreme Court, in its order, said:
"...the petitioner shall be granted interim bail in connection with FIR No. 0226 dated 01.06.2022 lodged at P.S. Khairabad, District Sitapur, Uttar Pradesh for a period of five days from today or until further orders of the Regular Bench on terms and conditions to be imposed by the Judicial Magistrate-I, Sitapur, which shall include the conditions that the petitioner shall not post any tweets and shall not tamper with any evidence, electronic or otherwise in Bengaluru or anywhere else. (sic)"
Further, the court noted the Solicitor General's submission that "the petitioner is in judicial custody in Delhi in connection with a different offence," and added:
"This court is not concerned at this stage with any FIR other than the FIR No. 0226 dated 1 June 2022 lodged at PS Khairabad, District Sitapur, Uttar Pradesh which is the subject matter of these proceedings."
The UP Police FIR Against Zubair and What the High Court Said
The UP police FIR against journalist and fact-checker Mohammed Zubair had originally been filed under Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code and Section 67 of the Information Technology (IT) Act (punishment for publishing or transmitting obscene material in electronic form).
The police later dropped Section 67 of the IT Act and added Section 153A IPC (promoting enmity between different groups on grounds of religion) in the case.
The FIR, filed at Uttar Pradesh’s Khairabad police station, alleges that on 27 May, the informant in the case saw a tweet posted by Zubair on his handle, in which he used the "offensive" term “hatemongers” against “the respected manager of revered religious place Badi Sanghat, P.S. Khairabad and National Patron of National Hindu Sher Sena, Mahant Bajrang Muni Ji.”
“Petitioner also insulted Hindu Yati Narasimha Nar Saraswati and Swami Anand Swaroop on his twitter (sic),” it adds.
This is despite the fact that all the three above-mentioned individuals are reported to have had FIRs against in connection with alleged hate speeches.
Despite this, the Allahabad High Court deemed it appropriate to refuse to quash the FIR against Zubair for his tweet.
The High Court reasoned:
“It transpires that the entire matter is only at a premature stage and the investigation is not yet proceeded with except some preliminary effort taken on the date of the registration of the case.”
“The evidence has to be gathered after a thorough investigation and placed before the Court concerned on the basis of which alone the Court concerned can come to a conclusion one way or the other on the allegations levelled by the petitioner.”
“The submissions advanced by the learned Counsel for the petitioner call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial Court in case a charge sheet is submitted in this case.”
'Pointing Out Hate Speech Is Not Promoting Enmity Against Religions': Zubair's Counsel
Appearing for Zubair, Senior Advocate Colin Gonsalves argued that Zubair’s tweets were neither an insult to any religion nor obscene, and said:
“Even if I accept all allegations, no criminal offence is made out against me.”
Further, Gonsalves contended that "the persons who made hate speech, they have been released on bail and the person who exposed them, he is in jail,” and asked: “What has this country become?”
He also asked if Zubair has not spoken against any religion, where is the crime against religion?
“If I am performing the role of pointing out hate speech and reporting to police, it is not promoting enmity between religions. I am promoting secularism in fact. 153A does not apply at all. I am telling them to stop promoting enmity and to stop hate speech."Senior Advocate Colin Gonsalves, appearing for Zubair
Arguments Against Relief for Zubair
Meanwhile, appearing for the Uttar Pradesh government Solicitor General Tushar Mehta said that the case is not about one tweet by Zubair, but about whether he is part of a "syndicate" which is regularly posting such tweets with the alleged intent to destabilise the society.
Additional Solicitor General SV Raju, on his part, claimed that Bajrang Muni is a respected mahout religious leader in Sitapur with a large following, and thus "when you call a religious leader hatemonger, it raises problems."
On responding to Gonsalves’ claims that there are many people advising to kill Zubair and advising the police to torture him, the Solicitor General alleged “artificial urgency” and said:
“He is under police protection. Where is the question of somebody killing him?”
Further, on the ASG's contention that Zubair’s application has been moved with ulterior motives and that quashing petitions are not filed during vacation, Justice Banerjee, however, said:
“In a matter of deprivation of personal liberty, you can't say there is no urgency."
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