Opinion | The Zubair judgement in italics

Mohammed Zubair
Mohammed Zubair.

On Wednesday, the Supreme Court granted interim bail to Alt News co-founder Mohammed Zubair and released him from Tihar. He was arrested on June 27 in cases relating to the tweets he posted. These were alleged by the UP government to be fomenting religious hatred. The SC was kind enough to disband the automaton-like Special Investigative Team, ever ready to carry out the often outlandishly vindictive commands of Uttar Pradesh chief minister Yogi Adityanath. The cases against Zubair have been moved from UP to Delhi.

The SC has been demonstrably kind in its words and action regarding Zubair. But its words are redolent — justifiably perhaps— of institutional self-preservation.

The Times of India on Thursday reported the SC as saying in its judgment: "How can we restrain a journalist, or anyone for that matter, from tweeting? It is like asking a lawyer not to argue. If he (Zubair) posts tweets in violation of law, he would be answerable for it. Every citizen is answerable for what he says in public. We will not place any restraint of this nature. It is a settled principle of law that the existence of the power of arrest shall be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly."

The judgment then does not offer any protection of even the vaguest kind to the journalist in question. It says, as perhaps it must, that a journalist — or anyone for that matter — can tweet all he/she wants, but he/she will have to face up to the legal consequences. This is seemingly fair. But not exactly the stuff of press freedom. What the judgment does say in no uncertain terms is that the UP administration’s arm, the police force, should go easy on arrests. The police force anywhere in India should take heed.

Those in the media who celebrate the Wednesday judgment as a victory for press freedom must worry about what this judgment really means in terms of free speech. There are scores of journalists and activists who are behind bars for all sorts of alleged crimes. This includes Siddique Kappan (again picked up by the UP police) and his two friends under Unlawful Activities Prevention Act (UAPA). The fact of the matter is that most of the media fraternity of North India live in a kind of cold fear. Anything anyone said at any point could be dug up and held against him/her by the administration.

Siddique Kappan.

But the quickness with which the State, or states, perceives offense in social media posts is not exclusive to the UP administration. Strange as it might sound, civil society, which is to say the left/liberal Progressives given to rage and outrage for freedom, is equally quick to be offended in language, manners, and politics, and to hand out punishments. In short, political correctness is often a euphemism for a kind of fashionable intolerance. The far too easily offended majoritarian administrations are merely — and rudely — balancing the scales. The trouble is, they have the power to put you in jail.

It is in this context that the SC judgment must be evaluated. And it seems to me, it must be an exercise in italicized ambivalence. The Nupur Sharma (a former BJP spokesperson) hearing is coming up, and she too has been booked for spreading hate. In fact, her comments led to riots and at least one death — a tailor murdered in Rajasthan. As in the case of Zubair, there are several FIRs filed against Nupur, and her lawyers would like them to be clubbed exactly as happened in the case of Zubair. For just reasons perhaps, the SC needed to demonstrate the need for sanity in the proceedings. It is another matter that India has come to a point where we discuss the cases but not the comments that precipitated them.

Delhi Police gives security to suspended BJP's Nupur Sharma, family
BJP Spokesperson Nupur Sharma during a programme at Delhi University. BJP suspended Sharma from party membership over her alleged remarks about Prophet Muhammad, on Sunday, June 5, 2022. PTI

The fact that the SC has actually gone on record to say that any social media post is subject to law makes it clear that Zubair getting interim bail is case-specific. There is no blanket cover for free speech. Indeed the judgment contains a clear warning to social media users. For all practical purposes, there is no distinction between public and private tweets/posts. Because social media technology ensures that there is nothing called a private or personal post. We post, we pay for it, and not just for the broadband.

The good news, besides Zubair’s well-earned if conditional freedom, is that the administration has been warned to exercise discretion in their wanton arrests and incarcerations. Comrades, the SC is not coming to the rescue of free speech. That’s why all of the verdict ought to be in italics. Just to keep up with the country leaning to the right.

(C P Surendran is an author and senior journalist. Views are personal)

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