A Delhi court on Friday granted bail to Alt News co-founder Mohammed Zubair in a case related to an 'objectionable tweet' he had posted in 2018 on a Hindu deity and said the Hindu religion and its followers are "tolerant."
Observing that "the voice of dissent is necessary for a healthy democracy," the court said that Indian democracy and the political parties are open for their criticism and merely criticism of any political parties does not justify the invoking of section 153A (promoting enmity between different groups) and 295A (outraging religious feelings) of IPC.
Additional sessions judge Devender Kumar Jangala, who granted relief to Zubair, also said, ”Undoubtedly free speech is the proper foundation of a democratic society.”
While granting bail, the court 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 the 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 that 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 the ministry of corporate affairs, Government of India, reveals the number of companies 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 political party.
"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 government by the people via open discussion and "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 restrains, 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 judge said.
”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 granted the relief to Zubair on 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, and 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.
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.
