A Gag On Liberty?

By Dilip Bobb

Last week, as the Supreme Court bid farewell to Justice Abhay S Oka on his retirement, it seems appropriate to remember his championing of free speech, liberty and equality as reflected in his judgments. In contrast to the Ali Khan Mahmudabad case wherein a bench led by Justice Surya Kant warned the professor that one must be careful while expressing one’s opinion, Justice Oka in the Abdul Sathar case in the same month, granted bail to a Popular Front of India secretary while observing that “for ideology, you cannot put someone in jail.” He also quashed the criminal case against another professor, Javed Ahmad, who was charged for his WhatsApp post critical of the abrogation of Article 370 (a constitutional provision in India that granted special status to the state of Jammu and Kashmir). His bench held that if any criticism or protest against the State is to be held as an offense under 153A of the Indian Penal Code, then democracy would not survive.

In the Mahmudabad case, even a person unversed in legal technicalities would strain to find anything that is of a criminal nature in the posts put out by the professor, head of the department of political science at Ashoka University. He was, by all measures, exercising his right to free speech when he objected to “reckless war-mongering” (which was brazenly evident in almost all news channels) and that the “optics” of Colonel Sofiya Qureshi during the government briefings could slide into “hypocrisy.” Despite that, the Haryana police promptly filed two FIRs against the professor.

The Supreme Court, while grudgingly granting him bail, put him under gag orders, told him to surrender his passport, and even directed the constitution of an SIT (Special Investigation Team) to “holistically understand the complexity of the phraseology involved in some of the expressions used”. SITs are rare and used in special circumstances involving a criminal network or when existing investigating agencies are seen as inadequate.

There is as always, hyper jingoism at play during and after events like Operation Sindoor involving Pakistan. Should that extend to the highest court of the land? Certainly not. There is also the question of whether the case would have been treated differently were the accused not a Muslim. As academic, political scientist and columnist Pratap Bhanu Mehta wrote in The Indian Express: “In some ways, by shifting the terrain to patriotism, the (Supreme) Court is consciously or unconsciously legitimizing an ideology, not protecting speech or liberty. It is not the Court’s job to be the schoolmaster of patriotism.” Indeed, the apex court’s order has had a chilling effect on the Constitutional definition of free speech.

In the Constitution of India, freedom of speech and expression is guaranteed under Article 19(1)(a). This right allows citizens to express their opinions and ideas freely through various means, including speech, writing, printing, and other forms of expression. However, this is subject to reasonable restrictions, which can be imposed in the interest of national security, public order, decency and morality. It is difficult to understand how the professor’s posts affected national security, or indeed, public order, decency and morality.

What celebrated constitutional scholar AG Noorani said in 1999, still holds true today. “The right to dissent, as distinct from mere tolerance of dissent, is a defining characteristic of a free society.”

It is important to note that Mahmudabad was booked under Bharatiya Nyaya Sanhita (BNS) Section 152, which covers sedition. Nothing he said in the two posts suggests anything remotely seditious. It is, in the context of Operation Sindoor, a case of judicial overreach and pandering to ultra-national sentiments.

As co-authors of an article in The Times of India, Jwalika Balaji and Aditya Prasanna Bhattacharya, reminded us of a 2024 judgment in Rajasthan, where the court called Section 152 a rebranded form of sedition and ruled that it could only be applied if there was a direct and imminent connection to rebellion or secession coupled with real intent.

In Mehta’s column, which he headlined A Shadow on our Rights, he points out that “shifts in legal culture are dangerous, they have only enabled the requirement that free speech is only for virtuous speech,” adding; “there is no bigger dog-whistle than the State looking for patriotic merit in speech and for every citizen to prove that they are patriotic”.

In that context, it is equally worrying to note that Vijay Shah, a minister in the Madhya Pradesh government, who called Colonel Sofiya Qureshi “a sister of Pakistan”, has not been removed from his post or even criticised by the BJP government in the state. His only punishment has been the filing of a suo motu FIR by the Madhya Pradesh High Court.

That suggests a backsliding of recent trends. The Supreme Court observed in Union of India vs Association for Democratic Reforms: “One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”.

In Kishori Mohan vs State of West Bengal, the Supreme Court explained the differences between three concepts: law and order, public order and security of State. Anything that disturbs public peace or public tranquility disturbs public order. But mere criticism of the government does not necessarily disturb public order.

Another relevant case involves the late but well-known journalist Vinod Dua. He was charged with sedition in 2021 due to a video he had uploaded on YouTube criticizing the government policies. He disputed the FIR, claiming that he was just exercising his fundamental right of speech and expression under Article 19(1)(a) and that any act of sedition had not been proven. In June 2021, a two-judge bench of the Supreme Court annulled the FIR and declared that freedom of speech was at the “heart of social and political interaction”.

The explosion of social media has added more complications to the debate over free speech. The lack of a clear definition of “public order” as an exception to free speech under Article 19(1)(a) has led to irregular protections, allowing Union and state governments to use it as a shield to justify actions that violate fundamental rights. The lack of clarity is particularly troubling in the context of online expression, where social media has become a primary forum for sharing opinions. In many cases, individuals have been arrested for posting opinions that authorities deem problematic or critical of the government. Though the definition of “public order” is not provided in any statute, the courts have defined and interpreted its scope from time to time.

In the landmark case of Dr Ram Manohar Lohia vs State of Bihar, the Supreme Court explained that “public order” refers to more serious disturbances that affect the community at large, rather than minor or localized disturbances. The judgment remains a critical reference point for cases involving the intersection of state power and constitutional rights. The apex court deviated from the previous interpretations of public order by applying the “close proximity test” and stating that “every breach of the peace does not lead to public disorder”. Even though that case laid down the benchmark for freedom of expression, the protection accorded by the Supreme Court has been regularly put to the test with mixed results.

As national convenor of Bharat Jodo Abhiyaan, Yogendra Yadav wrote after the Mahmudabad verdict: “The shocking thing about the case was not just the final order that offered legal scaffolding to a political witch-hunt… the very idea of freedom of expression were conspicuously absent. The proceedings of the highest court sounded more like an exchange between headmaster and parents on whether a boy was well-behaved. It was understood that a nation at war brooks no dissent, not even a different and nuanced articulation of a country’s stand, such as that of Mahmudabad.”

In a hard-hitting editorial, The Indian Express also captured the zeitgeist when it opined: “Instead of upholding free speech, when the court emphasizes restrictions on it, and when it wades in further with a parallel investigation, it lets down the billion hopes that rest on it.” In the case of Professor Mahmudabad, it was the context rather than the alleged “crime” which seems to have influenced the judgment. That is a worrying thought.

—The writer is former Senior Managing Editor, India Legal magazine

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