Mohammed Zubair is not a free man, even though the cases against him are full of holes big enough that you could fly an aircraft carrier through.
The only saving grace to be found in his current situation, is that his continued incarceration can no longer be attributed to the Delhi courts, after a sessions judge of the Patiala House court granted him bail in the case registered against him by the Delhi Police over a 2018 tweet.
It was the Delhi Police who had managed to first arrest the fact-checker, using this FIR which had just been filed four years after the tweet had been published.
He had obtained protection from coercive action in another case registered in Delhi against him, and there were a few cases against him in Uttar Pradesh as well, but it was no surprise that he had not been arrested in any of them, as the cases were so obviously baseless that even the police would never have thought a court would allow him to be remanded to custody.
At least, that's what you would imagine the courts would do with a baseless case. Unfortunately, the magistrate's court in Delhi not only remanded Zubair to police custody, it then denied him bail and sent him to 14-days' judicial custody.
At this point, with courts in Uttar Pradesh also sending him to custody in the cases against him there, it looked like his goose was cooked. The Supreme Court granted him interim bail in one of those UP cases, but the order denying him bail in Delhi and the other UP cases meant that he could not be set free.
This remains the case despite the order of the Delhi sessions court granting him bail, thanks to the UP cases.
But in the order of the sessions court, we see how the law is supposed to be used to protect individual liberty, how a court can stand up for free speech, and how it can give short shrift to dubious attempts by the police to keep a person in custody by hook or by crook.
A Reminder on the Importance of Free Speech
After setting out the arguments raised by Zubair's lawyer Vrinda Grover and the public prosecutor, additional sessions judge Devender Kumar Jangala begins his own analysis of the issue with a brief but important bit of context.
The Delhi Police have sought to make this case about a broader conspiracy to create unrest over religion and political affiliations using pre-planned tweets, FCRA violations, and, in the bizarre words of the public prosecutor, 'gumnaams' who will never be known unless Zubair remains locked up.
But despite these attempts to complicate the case, what it really comes down to is one tweet, one bit of speech, that wasn't even actually offensive, but became a convenient excuse to lock up one of the most prominent voices against hate and misinformation in the country – and silence thousands of other voices across the country out of fear.
The sessions court cannot obviously make those inferences, but it recognises the importance of freedom of speech in the opening to its analysis:
"Democracy is a government by the people via open discussion. The democracy can neither work nor prosper unless people go out to share their views. Article 19(1)(a) of the Constitution of India gives freedom of speech and expression to its citizen. Undoubtedly free speech is the proper foundation of a democratic society. A free exchange of ideas, dissemination of information without restrains [sic], dissemination of knowledge, airing of differing viewpooints [sic], 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."
None of this is revolutionary, but it is a useful reminder, in a time when everyone is constantly having to think how their words can be misconstrued by the police or some random malcontent on the internet, that things are not supposed to be this way in India.
We are supposed to have the freedom to engage in discussions about politics and even religion (yes, even religion) without having to worry about some online troll self-righteously tagging the police and trying to get us arrested.
We are supposed to be able to crack jokes – as long as they aren't hate speech or punch down on an oppressed community – about politicians, and government, and even religions, because that's what free people can do.
Sure, the police have to investigate complaints about alleged offences. But this doesn't mean they have to blindly accept any complaint as legitimate, and they certainly don't have to take a baseless complaint about a single tweet and try to spin a grand conspiracy out of it.
The police need to realise they are also supposed to protect citizens' rights, not just go after those the government du jour doesn't like. And if they will not do this, it is the courts which have to.
But for the courts to do so, they must have an appreciation of the right to freedom of speech – something which the magistrate in Zubair's case did not have, but thankfully the sessions judge did.
Section 295A Cases Require Malicious Intent
The original complainant in the FIR that put Zubair in jail said their problem was that the tweet was an insult to followers of the Hindu god Hanuman.
The Delhi Police demonstrated a questionable grasp of the Indian Penal Code (IPC) to address this issue, booking the fact-checker under Section 295 of the IPC in the FIR, which deals with defiling a place of worship, rather than Section 295A, which deals with outraging religious sentiments.
Even though they belatedly said they were investigating him for violation of Section 295A, this was always going to be a difficult accusation to prove, since the Supreme Court had clearly held in the Ramji Lal Modi case way back in 1957 that this section is meant to punish 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.”
In its judgment clubbing the various FIRs against News18 journalist Amish Devgan, the Supreme Court had in 2020 reiterated that the idea behind Section 295A is to "curb speech made with "malicious intent" and not "offensive speech"." An insult to a religion without such deliberate or malicious intention is not meant to be punished, whether it is unwitting or careless.
This is very important when it comes to India where anybody and everybody can potentially find an insult to their religious beliefs in a joke or a harmless comment.
In Zubair's case, the tweet he had put out in 2018 in any case showed a video clip from an old movie, Kisise Na Kehna, released in 1983 and certified by the CBFC, with no complaints received till today regarding the scene, which shows a hotel which once was called 'Honeymoon Hotel', but has then been renamed to 'Hanuman Hotel'.
Crucially, as pointed out earlier here on The Quint, the police had also failed to establish the identity of the person who complained about the tweet and tagged the Delhi Police. The sessions judge notes this failure of the police, and also observes that they have failed to record the statement of any person who felt offended by the 2018 tweet.
Another issue flagged by the judge is that even though this tweet had been in the public domain since 2018, no other complaints had been raised against it for offending a community.
The sessions judge has demonstrated a clear and cogent understanding of Section 295A, which is controversial because it is effectively an anti-blasphemy law if not used cautiously, and shown how even the lower courts can clearly apply their mind in cases involving it rather than pushing a panic button and accepting the police's claims.
Political Parties Are Not Above Criticism
Perhaps realising that the Section 295A angle isn't really going to work in this case, the police had also booked Zubair under Section 153A of the IPC, which deals with provoking enmity/hatred between different communities.
As his tweet didn't actually mention any religions and could not be considered an insult to a religion, the police had to come up with some novel other way in which to show there was enmity being provoked by it – as the judge noted, thee Supreme Court had expressly said in 1997 that there had to be a reference to another community.
The Delhi Police then took a leaf out of the playbook of zealous party cadres from across the country, and said the attempt to provoke enmity was because of the caption given by Zubair to the tweet, which was that the change from Honeymoon to Hanuman Hotel happened in 2014.
Now it is obvious to anyone that this refers to the year in which the BJP swept to power at the Centre under Narendra Modi. As the judge notes in the order, the public prosecutor for the state "has also pointed out that word "Before 2014" and "After 2014" is pointing towards the ruling political party to show the state of affairs in a prejudicial manner."
But why should a critique of the government amount to a Section 153A offence?
When the BJP has itself promoted its credentials for boosting and protecting Hindu sentiments, why should any citizen be punished for making a joke about this?
The sessions judge once again displays a firm grasp of the issues in rejecting this angle taken by the police.
"In Indian democracy the political parties are open for their criticism," the judge observes. "The political parties are not shying away from public to face the criticism of its policies. The voice of dissent is necessary for healthy democracy. Therefore, merely for the criticism of any political parties it is not justified to invoke section 153A and 295A IPC."
This is something that police forces across the country would be well-advised to read, as they register cases for criticism of political parties and politicians under these serious provisions, without any basis whatsoever (and this is not just a BJP problem).
Attempt to Shoehorn FCRA Given the Short Shrift It Deserves
Finally, the Delhi Police had also tried to shoehorn an FCRA charge into this case, which is understandable given how utterly baseless the main accusation regarding the tweet is.
They tried to say that in the course of their investigation of Zubair's tweets, they found that Alt News had been receiving money from foreign countries, thereby violating the Foreign Contribution Regulation Act as it did not have requisite permissions to receive foreign donations.
This accusation was a desperate attempt by the police to make it look like they weren't just filing a case over a single tweet by Zubair (a similar attempt is being made by the UP Police over other tweets by him, which the Supreme Court has so far not allowed to become relevant there either).
However, even though this could have been a genuine issue to investigate, even here, the police's case has bad faith written all over it.
As was pointed out during the hearings, the police were relying on IP addresses and phone numbers of donors to try and argue that the fact-checking outlet was receiving foreign contributions, but there is no bar on Indians or people with Indian bank accounts making payments to an organisation like Alt News, even if they are not present in the country.
As long as the actual payments are not from foreign bank accounts, there is no violation of the law, and the Delhi Police had not been able to demonstrate this. Instead, Zubair had been able to put material on record that showed they took steps to stop any foreign contributions being received, with payment gateway Razorpay also acknowledging that foreign payments could not be received by them.
As a result, even if some foreign contribution slipped through the cracks, this was not something Zubair could have been aware of, and so he couldn't be held responsible as per Section 39 of the FCRA.
Instead of allowing the Delhi Police's posturing over the FCRA to affect the treatment of the case, the judge dealt with the issue clinically and succinctly, looking only at the material and not being swayed by the prosecutor's cryptic claims that 'gumnaam' persons involved in the case would be able to stay 'gumnaam' if Zubair got out.
The judge also showed a clear head to say that now that recovery of devices had also been effected, there was no need to keep the fact-checker in custody anymore since all the evidence was documentary and had been collected.
While we often criticise the lower courts for mechanically granting remand and denying bail (which was what the magistrate also did in this case), this order shows exactly what the courts can do if they apply their mind. DU professor Ratan Lal was also granted bail in a frivolous case lodged against him under Section 295A, with the court in that case also showing a remarkable clarity on the law and freedom of speech.
Even in Disha Ravi's case last year, the magistrate had granted police remand even though the Delhi Police's 'toolkit' claims were utterly untenable – but the sessions court was clear and firm and did not waver, granting her bail and refusing to allow the police to sway it with grandiose arguments.
We can only hope more sessions courts and hopefully magistrates will demonstrate similar resolve and proper understanding of the law, and act as the front line to protect the freedoms of Indian citizens, when our police and politicians clearly don't intend to.