Voice of dissent necessary for healthy democracy: Court on bail to Zubair

A Delhi court on Friday granted bail to Alt News co-founder Mohammed Zubair in a case related to his alleged objectionable tweet in 2018 on a Hindu deity, observing that "the voice of dissent is necessary for a healthy democracy".

Zubair, however, will remain in jail as he has been remanded to judicial custody in some of the FIRs registered against him by the UP Police for allegedly hurting religious sentiments.

Zubair will be sent to the concerned jail in Uttar Pradesh after his release, according to a Tihar jail official here. The journalist is currently lodged in Tihar jail since July 2.

Granting relief to the journalist, Additional Sessions Judge Devender Kumar Jangala said Indian democracy and the political parties are open for their criticism and that merely criticism of any political parties is no ground to invoke section 153A (promoting enmity between different groups) and 295A (outraging religious feelings) of the Indian Penal Code(IPC).

"Undoubtedly free speech is the proper foundation of a democratic society."

The court further said the Hindu religion is one of the oldest religion and most tolerant and that followers of the Hindu religion are also tolerant.

Six separate FIRs have been lodged against Zubair in Sitapur, Lakhimpur Kheri, Ghaziabad, Muzaffarnagar and Hathras districts in UP.

The court directed Zubair to furnish a bail bond of Rs 50,000 and one surety of like amount, and directed him not to leave the country without its prior permission and not to repeat the offence. The journalist was also ordered to ensure that his tweet or retweet, or any material on social media content is not even touching boundaries of the offence punishable under Section 153A and 295A of IPC.

It said the accused is not required for any custodial interrogation and the alleged act would come into the category of offence only when it is done with a guilty intention.

The judge noted that till today the police have failed to establish the identity of a said Twitter user who felt offended by the tweet of the accused and based on whose complaint the present case was filed.

In response to prosecution's argument that the words "Before 2014" and "After 2014" used by the accused in his tweet have hurt the sentiments of the Hindu community and is sufficient to incite the feeling of hatred among people, the court said the followers of the Hindu religion are tolerant.

"Hindu religion is one of the oldest religions and most tolerant. The followers of the Hindu religion are also tolerant. Hindu religion is so tolerant that its followers proudly name their institution/organisation/facilities in the name of their Holy God or Goddess," the judge said.

A large number of Hindus proudly name their children in the name of their Holy God and Goddess, he added.

"The website of Ministry of Corporate Affairs, Government of India reveals that the number of companies is incorporated, in the name of Holy Hindu God or Goddess. Therefore naming of an institute, facility or organisation, or child in the name of Hindu Deity on the face of it, is not violative of Section 153A and 295A IPC unless the same is done with malice/guilty intention," the judge said.

The court noted the use of words "Before 2014" and "After 2014" by the accused in his tweet was meant to point towards a particular political party. The BJP-led NDA came to power in 2014.

"In Indian democracy, the political parties are open for their criticism. The political parties are not shying away from the public to face the criticism of its policies. The voice of dissent is necessary for a healthy democracy. Therefore, merely for the criticism of any political parties, it is not justified to invoke sections 153A and 295A of IPC," the judge said.

He said that democracy is a government by the people via open discussion.

"The democracy can neither work nor prosper unless people go out to share their views. Article 19(1)(a) of the Constitution of India gives freedom of speech and expression to its citizen."

He said that a free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing viewpoints, debating and forming one's views and expressing them, are the basic indicator of a free society.

"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. The liberty of speech and expression guaranteed by Article 19(1)(a) brings within its ambit, the corresponding duty and responsibility and puts limitations on the exercise of that liberty."

"The applicant has posted the image of the scene of a movie 'Kisi se na kehna' released in the year 1983. This movie was certified by the Central Board of Film Certification, which is a statutory body of the Government of India, and is available for the public view since then. No complaint is stated to have been filed till today that the said scene of the movie has hurt the feelings of a particular community of society," the court noted.

The court said police authorities are bound to proceed in the investigation as per provisions of CrPC.

"Considering the facts and circumstances of the case and the fact that the accused is not required for any custodial interrogation, I am inclined to allow the present bail moved on behalf of application applicant/accused Mohammed Zubair. The applicant is admitted to bail," it said.

The court asked Zubair to surrender his passport to the Investigating Agency within three days of his release from jail and "shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending matter."

"The applicant/accused will join the investigation as and when called by the SHO/IO to do so," it said.