Zubair bail: In order, Supreme Court of India sets a new bar

Fact checker and Alt News Co Founder, Mohammad Zubair finally walked out of jail in India last week after spending 23 days in prison for a tweet he posted in 2018. The Supreme Court of India gave him bail in all the cases he is facing and ordered his immediate release

The Supreme Court bench, headed by Justice Chandrachud, said the power of arrest must be used sparingly and clubbed all the FIRs or cases against Zubair, transferring them to Delhi from UP.

Zubair was first arrested by the Delhi Police on June 27th for a 2018 tweet which was screen grab from an old Hririshikesh Mukherjee movie. Subsequently, there were 6 FIRs filed in UP -- all largely accusing him of disturbing religious harmony

The apex court said there was no justification for Zubair's detention and that there was no reason to prevent his liberty

The UP police Special Investigation Team which had been set up to probe all the FIRs against Zubair, was also disbanded by the court

During the hearing, the UP government asked the bench to stop Zubair from tweeting, to which Justice Chandrachud said a firm NO.

You cannot tell a journalist not to write, if he violates the law, then he answerable for that, he said

This order by the SC is hugely significant, at a time when there have been a spate of arrests against people for their social media posts, and it’s not only the BJP government which is at fault.

There was the recent case of Marathi actor Ketaki Chitale, who spent 40 days in jail in Maharashtra for what was deemed an offensive social media post about NCP chief Sharad Pawar. Ketaki Chitale’s post was awful, it was crude, and nasty. But she did not deserve to be in jail for it.

Just last week, film maker Avinash Das was arrested by the Gujarat police for sharing a social media post of a photo of the Home Minister with a tainted bureaucrat who is under arrest for money laundering. The photo was 5 years old and Das was arrested for trying to “tarnish the image of the Home Minister”. Again, an unwarranted arrest. Thankfully Das was given bail by an Ahmedabad court just days later.

But that isn’t the point. The point is, authorities in India should not go around arresting people for their social media posts in the first place unless they actually break the law -- which would be to incite violence through hate speech.

Only recently, the Chief Justice of India NV Ramana said that hasty and indiscriminate arrests, the prolonged incarceration of undertrial prisoners along with difficulty in getting bail, needs urgent attention

He had described the process as the punishment, adding that nearly 80% of over 600,000 inmates in the country are undertrial prisoners. This is an astounding statement on the criminal justice system in India.

Another Supreme Court bench had recently observed that arrest is a draconian measure resulting in the curtailment of liberty, and should be used sparingly. This bench also called on the government to consider bringing in a separate law for bail.

The bench said, “In a democracy, there can never be an impression that it is a police state as both are conceptually opposite to each other"

The order by the Supreme Court in Zubair’s case is therefore very significant and sends a message both to the political class and to the lower judiciary which makes bail a difficult process for undertrials. Hopefully, they have got the message this time.