Supreme Court’s order quashing Zubair’s arrest provides an important template to check abuse of power

The Supreme Court order exemplifies how courts can play an important role in preventing abuse of the criminal process by the State. It is an important reminder to the government and to the courts that authority is a necessary but not sufficient condition for legitimacy.

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JOURNALIST and co-founder of non-profit fact-checking website Alt News, Mohammed Zubair, walked out of jail last month after 25 days but it took a petition to the Supreme Court to secure his liberty. The Supreme Court, while clubbing the multiple first information reports ('FIRs') against him, also granted him interim bail in them, noting that arrest was not necessary for investigation. The order exemplifies how courts can play an important role in preventing abuse of the criminal process by the State.

Recalling Zubair's predicament

Within hours of Zubair's arrest on June 27, the bizarre nature of the case against him became clear – Zubair had been arrested for essentially posting on Twitter a meme made using a still from an old Hindi movie, primarily for charges of promoting enmity between religious groups and prejudicing communal harmony (Section 153A of the Indian Penal Code) and for outraging religious feelings (Section 295A of the Indian Penal Code). In cases involving these provisions, the Supreme Court has highlighted the need for both malafide intention, and a proximate nexus between the offending speech and harm to public order as necessary ingredients.

Also read: Social media, content moderation and free speech: A tussle

Zubair had posted the tweet in question in 2018, and the police chose to arrest him four years later in June 2022.

Despite there being no evidence of Zubair's old tweet triggering any interference with public order, the Chief Metropolitan Magistrate chose to remand him to custody for police interrogation. While he was in custody, the Delhi Police searched his premises and seized his electronic devices. The Additional Sessions Judge eventually granted him bail on July 15, reportedly noting that criticism of political parties did not warrant the invocation of sections 153A and 295A, and that incarceration was not needed for investigation.

However, the court's strong order could not provide material relief to Zubair as by then Zubair's game of whack-a-mole with the criminal process had already begun. The police began taking action in several FIRs registered against him across Uttar Pradesh between 2021 and 2022. On July 4, a court in Sitapur sent him to judicial custody for 14 days. The Supreme Court granted Zubair interim bail on July 8. However, on July 11, Zubair was remanded to 14 days judicial custody by a court in Lakhimpur. The police filed an application seeking his custody after this period. On July 13, a Hathras Court sent him to judicial custody for 14 days and the police sought his custody for interrogation after. This meant that Zubair, despite getting bail from the court in Delhi, would not be free but would have to keep fighting these cases across the state of Uttar Pradesh.

The Supreme Court carefully scrutinised the sequence of events to identify the questionable nature of the criminal case set up against Zubair. In particular, it noted that tweets of a similar kind were made subject matters of different FIRs across the country, and that old FIRs were suddenly acted upon after Zubair's arrest, causing him to remain in jail until he could get relief in multiple cases by engaging multiple lawyers across jurisdictions. All this led the court to observe that the "machinery of criminal justice has been relentlessly employed against" him.

In light of this abuse of power, the court ultimately transferred all the FIRs to the Delhi Police. On the point of bail, the court further noted that the Delhi Police, as per its own status report, had carried out a comprehensive investigation in respect of tweets made by Zubair, and further incarceration for investigation was not necessary.

Also read: Supreme Court's guidelines in bail matters: Compliance is the key

Significance of the Supreme Court order

The Supreme Court's decision is important in many respects. The court emphasised the importance of the distinction between the existence of the power of arrest and the exercise of the power of arrest. The architecture of criminal laws in our system is such that provisions are broadly framed, giving vast power to the police. As lawyer Abhinav Sekhri has noted here, this is especially true in respect of sections 153A and 295A, which were amended and made cognizable offences, allowing the police to arrest without a warrant.

The only safeguards against such wide powers are the duty on the police to not abuse them, and that on the Court to serve as a check when the powers are abused. Indeed, every court at every level is supposed to perform this role. When the Constituent Assembly debated the right to personal liberty, Dr. B.R. Ambedkar charged Magistrates with the duty to safeguard personal liberty by determining whether remand is warranted. The High Courts can exercise their inherent powers under Section 482 of the Code of Criminal Procedure ('CrPC') to quash cases where the allegations at face value do not constitute an offence, and when the proceeding is based on malafides. Under writ jurisdiction, as per Articles 226 and 32 of the Constitution, the High Court and the Supreme Court respectively can quash proceedings found to be an abuse of the process of law.

Unfortunately, much like the police, courts are often not vigilant about determining whether arrest is warranted. Instead, they display a tendency to accept the prosecution's assertion that incarceration is necessary for investigation without probing the prosecution further. There is evidence of this approach even in this case, where the Chief Metropolitan Magistrate remanded Zubair to custody primarily on the ground that his devices from which the tweet was posted were not yet recovered, without examining why such seizure was necessary in such a case, and whether the police complied with procedural safeguards provided in the CrPC. Zubair's lawyers have challenged this order in the High Court on the ground that it permits a roving inquiry into his devices. With respect, the Magistrate's approach reflects an indifference to context and a reluctance to identify situations where the wide powers wielded by police officials might be abused. This kind of approach reduces the right to personal liberty to a mere husk.

In contrast, the Supreme Court's order demonstrates how an abuse of the criminal process can be identified from the record of the case. It was clear that in this case, a number of FIRs were registered for similar tweets and offences across the country, and that old FIRs were activated in such a manner that Zubair would remain in jail until he got bail in multiple FIRs.

Also read: Abuse of Policing Power: Representation and Sharing of Resources

The court's order differs from many other judgments where fundamental rights are often stated as pre-ambulatory sermons, but are forgotten at the stage of applying the statute in question. In this case, Justice D.Y. Chandrachud makes it clear that fundamental rights must inform the interpretation of criminal procedure provisions such as Section 41 of the CrPC on the necessity of arrest and Section 437 in respect of bail conditions. In respect of arrest, he stated in the order that the police have a duty to apply their mind before resorting to arrest, and that the need for arrest must be limited to specific situations such as necessity for investigation, which was not made out in this case. In particular, he noted:

"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 criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the CrPC as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual."

In respect of bail conditions, the court rejected the Government's plea that Zubair not be permitted to tweet as it did not relate to the purpose of a fair trial, prevent commission of further offences, and that it was disproportionate.

At a more general level, the court's order underlines an important distinction between the existence of power versus the exercise of power in a liberal democracy such as India. The characteristic feature of a liberal democracy is that legitimacy is not only based on whether the body taking the decision has the authority to do so, but that the exercise of power is fair. While courts in colonial India could only investigate the former, the Constitution transformed the idea of legitimacy and the concomitant role of courts to include scrutinising how power is exercised.

In the last few years, the conduct of the government and its justifications appear to suggest a reversion to legitimacy being limited to authorisation only. The court's decision is an important reminder to the government and to the courts that authority is a necessary but not sufficient condition for legitimacy.

Notwithstanding the Supreme Court's firm decision in favour of release, Zubair's interaction with the criminal process is far from over. As noted by the Supreme Court, the validity of the remanded order, and the search and seizure of Zubair's devices by the police is still pending before the high court. Zubair would still need to approach the high court for quashing of these cases, to which charges of violation of the Foreign Contribution (Regulation) Act have been added. It remains to be seen whether the high court will follow the roadmap laid down by the Supreme Court on how to check abuse of process by the State.