Arrest is not meant to be and must not be used as a "punitive tool" but the criminal justice machinery was "relentlessly employed" against Alt News Co-founder Mohammad Zubair, the Supreme Court said while granting him interim bail in connection with the FIRs lodged against him in Uttar Pradesh for alleged hate speech.
Gag orders have a "chilling effect" on the freedom of speech, the apex court said while refusing to accept the submission of the counsel representing Uttar Pradesh that Zubair be barred from tweeting when he is on bail.
In its July 20 verdict, which was uploaded on the apex court website on Monday evening, a bench headed by Justice D Y Chandrachud said despite the fact that same tweets allegedly gave rise to similar offences in the FIRs, Zubair was subjected to multiple investigations across the country.
"As evident from the facts narrated above, the machinery of criminal justice has been relentlessly employed against the petitioner (Zubair)," said the bench, also comprising Justices Surya Kant and A S Bopanna.
"Resultantly, he is trapped in a vicious cycle of the criminal process where the process has itself become the punishment," the bench said in 21-page judgement.
The apex court had delivered its verdict on Zubair's plea seeking quashing of the FIRs lodged in Uttar Pradesh against him.
The top court had ordered the release of Zubair on interim bail in relation to the FIRs lodged in Uttar Pradesh against him for alleged hate speech and transferred the cases to the Special Cell of Delhi Police.
In its judgement, the apex court said police officers are vested with the power to arrest individuals at various stages of the criminal justice process, including during the course of investigation, but this power is not "unbridled".
"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," the bench said.
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It said the criminal law and its processes ought not to be instrumentalised as a "tool of harassment".
On the contention of UP's counsel that Zubair must be barred from tweeting when he is on bail, the bench said merely because the complaints filed against him arise from posts that were made by him on a social media platform, a blanket anticipatory order preventing him from tweeting cannot be made.
"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," it said.
"Gag orders have a chilling effect on the freedom of speech," the bench observed.
It noted that according to Zubair, he is a journalist who is the co-founder of a fact checking website and uses Twitter as a medium of communication to dispel false news and misinformation "in this age of morphed images, clickbait, and tailored videos".
The apex court said passing an order restricting the petitioner 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.
"The bail conditions imposed by the court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed," the bench said.
On the issue of power to arrest, the apex court referred to its Arnesh Kumar verdict and said when it is exercised without application of mind and without due regard to the law, it amounts to an abuse of power.
"Section 41 of the CrPC (Code of Criminal Procedure) 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," it said.
The bench noted that Zubair was subjected to multiple investigations across the country despite the fact that same tweets allegedly gave rise to similar offences in diverse FIRs.
"Consequently, he would be required to hire 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. Resultantly, he is trapped in a vicious cycle of the criminal process where the process has itself become the punishment," it observed.
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The bench said it also appeared that certain dormant FIRs from 2021 were activated as certain new FIRs were registered, thereby compounding the difficulties faced by Zubair.
The top court also disbanded the special investigation team (SIT) which was constituted by the Uttar Pradesh Police to probe the FIRs.
Zubair was arrested by the Delhi Police on June 27 for allegedly hurting religious sentiments through one of his tweets.
Multiple FIRs were lodged against him in UP -- two in Hathras and one each in Sitapur, Lakhimpur Kheri, Muzaffarnagar, Ghaziabad, and at Chandauli police station for allegedly hurting religious sentiments.
