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Interim Bail Over Social Media Posts
A shift in free speech jurisprudence
Context: Recently, the Supreme Court of India granted interim bail to Ali Khan Mahmudabad, a political science professor at Ashoka University, who was arrested in connection with two FIRs linked to his Facebook posts about Operation Sindoor.
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- While granting bail, the Court refused to halt the ongoing investigation, which involves serious charges under the Bharatiya Nyaya Sanhita (BNS), 2023.
- In a May 8 post, Mahmudabad criticised Pakistan’s military actions while praising the Indian armed forces for exercising strategic restraint.
- He also acknowledged the participation of women officers like Colonel Sofiya Qureshi and Wing Commander Vyomika Singh in press briefings, calling it a symbol of India’s pluralistic values.
- However, he cautioned that such symbolism must be backed by action, referencing bulldozing of homes and mob lynchings within India.
Key BNS Provisions Invoked
- Section 152: Endangering sovereignty, unity, and integrity of India (akin to sedition).
- Section 196(1)(b): Acts disturbing communal harmony.
- Section 197(1)(c): Imputations harmful to national integration.
- Section 299: Offending religious sentiments.
- Section 79: Insulting the modesty of a woman.
- Section 353: Making statements likely to cause public mischief.
Supreme Court’s Observations and Ruling
- A bench comprising Justices Surya Kant and N. Kotiswar Singh granted interim bail to Mahmudabad, emphasising that it was solely to assist with the investigation.
- The Court directed the Haryana DGP to form a Special Investigation Team (SIT) of three senior IPS officers from outside Delhi and Haryana to independently assess the actual intent and meaning of the posts.
- Senior advocate Kapil Sibal, appearing for Mahmudabad, argued that the professor’s posts were patriotic, not criminal.
- Justice Kant, however, noted that some words may carry a “dual meaning” and warrant investigation.
Can ‘Unpatriotic’ Speech Be Criminalised?
- India’s Constitution protects free speech under Article 19(1)(a), with restrictions allowed only on eight specific grounds defined in Article 19(2).
- The Supreme Court has consistently ruled that mere offence or disagreement is not a valid reason to punish speech.
- In the landmark Shreya Singhal v. Union of India (2015) case, the Court struck down Section 66A of the IT Act, declaring that vague terms like “hatred” or “insult” cannot justify criminal prosecution.
- The Kaushal Kishor v. State of Uttar Pradesh (2023) ruling reaffirmed that Article 19(2)’s limitations are exhaustive.
- Commenting on Mahmudabad’s case, Justice Gautam Patel (retired Bombay High Court) emphasised that even complex or provocative speech must be viewed with constitutional safeguards in mind, warning against equating perceived lack of patriotism with criminality.
Have Courts Been Consistent on Free Speech?
- Just two months earlier, in March 2024, the Supreme Court laid down clear guidelines for registering FIRs under Sections 196, 197(1), and 299 of the BNS.
- A bench of Justices Abhay S. Oka and Ujjal Bhuyan stressed that speech must be judged through the lens of “reasonable, strong-minded individuals” rather than by those easily offended.
Broader Implications
- Chilling Effect: The use of BNS provisions to target social media posts risks creating a chilling effect, discouraging citizens from expressing critical views on government actions.
- Pluralism vs. Nationalism: Mahmudabad’s posts highlighted India’s pluralistic values but also critiqued state actions, raising questions about whether dissent is being conflated with anti-nationalism.
- Role of SIT: The SIT’s findings will be crucial in determining whether the investigation respects constitutional protections or further erodes free speech.
- Public Discourse: The case underscores the tension between national security and individual rights, with implications for how social media is regulated in India.
Way Forward
- The Supreme Court should ensure the SIT investigation adheres strictly to constitutional safeguards under Article 19(1)(a) and 19(2), setting a precedent that prevents misuse of vague BNS provisions like Section 152 and Section 353.
- Clear guidelines must be established to protect free speech while addressing genuine threats to national unity.
- The Bharatiya Nyaya Sanhita (BNS), 2023, needs amendment to narrow the scope of provisions like Section 196 and Section 299, ensuring they align with Shreya Singhal (2015) and Kaushal Kishor (2023) rulings.
- Civil society and legal experts should launch campaigns to educate citizens about their free speech rights and the risks of chilling effects from laws targeting social media posts.
