In Zubair’s case, process itself had become the punishment: Supreme Court

Refusing to restrict his right to tweet, the bench reasoned that gag orders have a chilling effect on the freedom of speech. 

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THE Supreme Court has said that fact-checking website Alt News co-founder Mohammed Zubair was trapped in a vicious cycle of the criminal process where the process had itself become the punishment in which certain dormant First Information Reports(FIRs) from 2021 were activated as certain new FIRs were registered thereby compounding the difficulties faced by him. In a 20-page long judgment released on Monday, Justice D.Y. Chandrachud said that it was evident from the facts, that the machinery of criminal justice had been relentlessly employed against Zubair. The court warned that the criminal law and its processes ought not to be instrumentalized as a tool of harassment.

The bench, which also included Justices Surya Kant and A.S. Bopanna, noted that Zubair was subjected to multiple investigations across the country which would result in the hiring of multiple advocates across districts, file multiple applications for bail, travel to multiple districts spanning two states for the purposes of investigation, and defend himself before multiple courts, all with respect to substantially the same alleged cause of action.

It directed the transfer of all the six FIRs from UP to Delhi's special cell which is already conducting a comprehensive investigation against Zubair which extends across the gamut of tweets put out by him. Zubair was granted regular bail in Delhi FIR on July 15 by a Sessions Judge. The bench thus held that since Zubair has been subjected to a sustained investigation by the Delhi Police, there was no justification for the deprivation of the liberty of the petitioner to persist any further.

On the quashing of FIRs, the bench observed that before it could embark on an enquiry as to whether the FIRs should be quashed, it was appropriate that the petitioner pursues his remedies in accordance with the provisions of Article 226 of the Constitution and/or section 482 of the Code of Criminal Procedure(CrPC) before the Delhi high court.

The bench also granted him protection from arrest in future FIRs on the same subject matter in regard to the tweets which have been put out by him.

Can't gag Zubair

The bench rejected the request made by the Uttar Pradesh government to bar Zubair from tweeting any further. It reasoned that a blanket order directing the petitioner to not express his opinion – an opinion that he is rightfully entitled to hold as an active participating citizen – would be disproportionate to the purpose of imposing conditions on bail.

"The imposition of such a condition would tantamount to a gag order against the petitioner. Gag orders have a chilling effect on the freedom of speech. According to the petitioner, he is a journalist who is the co-founder of a fact checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos. Passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession", Justice Chandrachud wrote for the bench.

Power of arrest  not unbridled

Holding the continued incarceration of Zubair totally unjustified, the bench said "the existence of the power of arrest must be distinguished from the exercise of the power of arrest". 

"The exercise of the power of arrest must be pursued sparingly. In the present case, there is absolutely no justification to keep the petitioner in continued custody any further and to subject him to an endless round of proceedings before diverse courts when the gravamen of the allegations in each of the said FIRs arises out of the tweets which have been put out by the petitioner, and which also form the subject matter of the investigation being conducted by the Delhi Police", the bench observed.

The bench held that the power of arrest is not unbridled and that a police officer must be satisfied that such arrest is necessary to prevent the person sought to be arrested from committing any further offence, for proper investigation of the offence, to prevent the arrestee from tampering with or destroying evidence, to prevent them from influencing or intimidating potential 16 witnesses, or when it is not possible to ensure their presence in court without arresting them.

"Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power.", the bench said.

It reiterated that the guidelines laid down in Arnesh Kumar vs. the State of Bihar must be followed, without exception.

Faced with multiple FIRs over his tweets, Zubair had approached the court seeking to quash all the six FIRs which have been transferred to an SIT by the UP government. In the alternative, Zubair requested the court to club all the FIRs with an FIR filed in Delhi, in which he was first arrested on June 27. In addition, he sought interim bail in all six FIRs.

Earlier this month, the UP government constituted a two-member SIT to probe six cases lodged against Zubair. Of the six cases, two cases are lodged in Hathras district, while one case is registered in Sitapur, Lakhimpur Kheri, Ghaziabad and Chandauli each. In the Sitapur case, Zubair was granted interim bail by the Supreme Court. However, he was soon thereafter sent to 14-day judicial custody in the Lakhimpur case.

Earlier, Zubair was sent to 14-day judicial custody by a Hathras court. He is facing charges of allegedly hurting the religious sentiments of the Hindu community under Sections 153A (promoting enmity between different groups on ground of religion, race, etc.), 295A (deliberate and malicious acts, intended to outrage religious feelings of any class) and 298 (uttering, words, etc., with deliberate intent to wound the religious feelings of any person) of the Indian Penal Code ('IPC'), and Section 67 (publishing or transmitting obscene material in electronic form) of the Information Technology Act.

The Delhi FIR is under Sections 153A and 295A of the IPC. Later, the Delhi police added Sections 120B (criminal conspiracy) and 201 (causing disappearance of evidence of offence, or giving false information to screen offender) of the IPC, and Section 35 (punishment for contravention of any provision of the Act) of the Foreign Contribution (Regulation) Act, to the FIR.

Advocate Vrinda Grover appeared for Zubair while the UP government was represented by Additional Advocate General for the state, Prashad.

Click here to read the judgment.