As the Supreme Court, on Wednesday, 21 July, granted interim bail to Alt-News co-founder Mohammed Zubair in all FIRs registered against him in UP, and in any FIR that may be registered against him in the future in connection with the same subject matter (his tweets, duh!), Uttar Pradesh government's counsel AAG Garima Prashad sought for Zubair to be prevented from tweeting further as a bail condition.
The court, however, said they cannot do that.
"Telling a journalist to not write, is like telling a lawyer to not argue," Supreme Court Justice DY Chandrachud pointed out.
"He is not a journalist!" the AAG argued, but in a massive win for press freedom in the country, her submission went unacknowledged by the highest court of the country. They only noted that if Zubair did break any law, he would be answerable to the court (like literally everybody else.)
The Importance of Supreme Court's Stand
The court's decision to not anticipatorily bar Zubair from tweeting, and their emphasis on a journalist's freedom to speak and write and tweet, is laudable, not only because it is a reaffirmation of the fundamental right guaranteed under Article 19 of the Constitution, but also because it comes as a timely reminder.
Even though the Central Government has decided to reject India's ranking in the world Press Freedom Index — "the government does not subscribe to this," they said — our democratic republic is reported to have slipped to the 150th rank in a list of 180 nations.
Besides, from Sajad Gul in Kashmir, to Siddique Kappan in Uttar Pradesh, we do have several journalists across the country languishing in jails in a wide array of cases including those under the draconian Unlawful Activities Prevention Act.
For some, like Kashmir-wala editor Fahad Shah, the manner in which arrests have taken place and the proceedings have unfolded mirrors that of Zubair — first summoned, then arrested in one FIR, then arrested in another just as he was about to clinch bail in one, then booked in a cascade of cases with new charges being added on top of one another like layers in a cake, mostly for exercising their freedom of expression and their right to report.
A sequence of such events can be argued as an attempt to gag the reporter. Unfortunately, unlike the Supreme Court this time, an array of courts across the country appear to have historically fallen prey to such attempts.
Thus the top court's decision to set Zubair free ("we find no reason for his deprivation of personal liberty to persist"), and really free as they refused to even tie his tongue, is a welcome reminder of how the Constitution and the courts are supposed to pave way for press freedom.
The unsurprising thing is that the Supreme Court had to actually tell the AAG that it isn't permissible to bar a journalist from tweeting, despite the fact that they have unequivocally upheld press freedom and freedom of expression several times in the past —
Indian Express Newspapers v Union of India (1986): “In today's free world freedom of press is the heart of social and political intercourse.”
S Rangarajan Etc vs P Jagjivan Ram (1989): “The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.”
Manohar Lal Sharma v Union of India aka the Pegasus case (2021): “It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self censorship. This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech is an assault on the vital public watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information." (emphasis added)
The Supreme Court — in fact Justice Chandrachud himself — even granted bail to Republic TV news anchor Arnab Goswami in 2020, in an abetment to suicide case, stating that all the courts of the country from the district magistrates to the apex court, have a duty to ensure that criminal law does not become a “selective weapon for harassment of citizens.”
So then why did the AAG not know better than to ask the top court to go against its own emphasised stand on freedom of journalists? The answer may lie in the inconsistent behaviour displayed by the courts of the country in the recent past.
Prior to This Order...
Prior to the order of this bench, a vacation bench of the Supreme Court had in fact imposed a tweet-ban on Zubair while granting an interim bail to him in one of the cases against him. This was, in fact, pointed out by the AAG herself while asking for the same condition to be imposed again.
"This court had earlier directed that the petitioner should not post tweets," LiveLaw quoted her as saying.
Besides, let us remember that Zubair was released only now. Prior to this, several other courts (in UP and in Delhi) had denied bail to him, despite the frivolity of the charges against him, their inconsistency with the actual act of tweeting done by him, and as noted by Justice Chandrachud, the gravamen of the allegations against him being his tweets and all the evidence against him "in public domain".
Courts have barred others too, in the past, from exercising their freedom of speech or practicing their profession in the way that they would have perhaps liked to.
For instance, an NIA special court, which set out the bail conditions for Bhima Koregaon accused Sudha Bharadwaj, barred her from speaking to the media about her case and also rejected her request to be allowed to return to her law practice in Chhattisgarh. When the Supreme Court allowed journalist Siddique Kappan to visit his ailing mother in Kerala, he was barred from speaking to the media.
Credit Where It's Due: A Session Judge's Stand
It would be, unfair, however to not credit one sessions court judge who had taken a pro-Article 19, pro-liberty and pro-democracy stand, not only granting bail to Zubair in a case registered against him by the Delhi Police over a 2018 tweet, but also unambiguously stating:
"Undoubtedly free speech is the proper foundation of a democratic society. A free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing viewpoints, debating and forming one's own views and expressing them, are the basic indicator of a free society. This freedom alone makes it possible for people to formulate their own views and opinions on a proper basis and to exercise their social, economic and political rights in a free society in an informed manner."
While the sessions court's remarks are most welcome, they will not go on to have the same kind of impact as the Supreme Court's. Thus when top court's Justice Chandrachud refused to curb the journalist, press-freedom advocates, writers, artists and other independent scribes across the country must have collectively heaved a sigh of relief.
Other Reasons for Applauding Supreme Court's Order
What's more, the top court effectively reiterated what has been carefully spelled out in the Arnesh Kumar judgment, the Arnab Goswami judgment, the MF Hussain case (by the Delhi High Court), among a catena of other judical pronouncements:
"It is settled principle of law, that the existence of powers of arrest must be distinguished from the exercise of powers of arrest, which must be used sparingly."
This is an important legal principle that perhaps must be reminded to the state, the arresting authorities and judges at regular intervals, given the recent arrests and prolonged incarceration before subsequent release (if any) of journalists, activists, comedians and artists for basically doing their job.
The court's decision to also transfer all the cases against Zubair to be probed — in a "consolidated" as opposed to piecemeal manner — by the Delhi Police special cell and to disband the SIT set up in Uttar Pradesh, will also spare the fact-checker some unnecessary harassment in pursuit of justice.