‘Dissent is necessary’: Five takeaways from Delhi court’s bail order for Zubair

Granting bail to Alt News journalist Mohammed Zubair on Friday, judge Devender Kumar Jangala held that dissent was necessary for a healthy democracy.

In his bail order, reserved overnight, the Delhi additional sessions judge said that democracy could not work or prosper unless people were free to share their views. It was not justified, he further said, to invoke sections 153A and 295A of the Indian Penal Code to punish criticism of political parties. 153A punishes “promoting enmity” on grounds of religion and “doing acts prejudicial to the maintenance of harmony”, whereas 295A concerns “deliberate and malicious acts intended to outrage religious feelings”.

Zubair was booked under both these sections by the Delhi police for referencing a trope from a 1983 film in a tweet four years ago that an anonymous tweeter called Hanuman Bhakt allegedly found offensive. The journalist was arrested on June 27 and has been in custody ever since. The grant of bail, conditioned on payment of a Rs 50,000 bond and an assurance not to leave India without permission, doesn’t alter his situation. He will remain in jail while a clutch of cases filed against him in Uttar Pradesh are investigated. He’s facing as many as six cases in UP and he has moved the Supreme Court to get them quashed. The petition is yet to be listed.

Still, Jangala’s bail order is significant for its observations. Here are its key takeaways:

1) Free speech is the foundation of a democratic society

Article 19 of India’s constitution gives the citizens the right to freedom of speech and expression, Jangala’s order noted, and free speech is the proper foundation of a democratic society.

“A free exchange of ideas”, “airing of different viewpoints”, and “forming one’s own views and expressing them” are the basic indicators of a free society, the order said. “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.”

2) Hinduism is one of the oldest and most tolerant religions

While opposing Zubair’s bail plea, the Delhi police had argued that his 2018 tweet hurt the sentiments of Hindus and was sufficient to incite feelings of hatred among different communities, punishable offences under 153A and 295A.

To this, the judge said that Hinduism is one of the world’s oldest and most tolerant religions and its followers proudly name their children, institutions, and companies after Hindu gods and goddesses. And this isn’t a violation of 153A or 295A unless done with malice or ill intention. The film scene referenced in Zubair’s allegedly offensive tweet shows a couple arriving at a hotel named after the Hindu god Hanuman.

The film, Kisi Se Na Kehna, the judge further noted, was certified by the Central Board of Film Certification nearly 40 years ago and has been available for public viewing ever since. But in all that time no one has apparently complained that this scene referenced by Zubair hurt the religious feelings of any community. No one had complained against Zubair’s tweet for four years either.

3) Criticism of a political party doesn’t justify invoking 153A, 295A

The prosecution had argued that the words “Before 2014” and “After 2014” in Zubair’s tweet were aimed at showing the state of affairs in India under the ruling party in a “prejudicial manner”.

The judge held that political parties in a democracy do not shy from public criticism of their policies. Indeed, he said, voices of dissent are necessary for a healthy democracy. So, mere criticism of a party does not justify invoking 153A and 295A.

4) Delhi police have failed to identify Hanuman Bakht

The judge pointed out that the Delhi police have failed to establish the identity of Hanuman Bhakt, whose complaint led to Zubair’s arrest. They have not recorded the statement of this person or any other person offended by Zubair’s tweet as required under the Criminal Procedure Code.

The police are bound to conduct the investigation as per the provisions of the CrPC, but haven’t. At the bail hearing on Thursday, the court had told Special Public Prosecutor Atul Shrivastava, “We don’t go by tweets, we go by the CrPC.”

5) 'No useful purpose' is served by keeping Zubair in custody

The police have also booked Zubair under section 35 of the Foreign Contribution Regulation Act, the judge noted, but Zubair placed on record material showing that Alt News asks for donations only from Indian citizens with Indian bank accounts. At Thursday’s hearing, the prosecutor had alleged that Zubair received Rs 56 lakh from Pakistan, Saudi Arabia and Iran. Since some of the people who had made these contributions were anonymous, the prosecutor added, the police needed to question Zubair in custody to find out their identities.

Jangala’s order, however, contends that since all evidence in this case is documentary, “no useful purpose” is served by keeping the journalist in custody any further.