Zubair case: Arrest not to be used as a punitive tool, says SC

NEW DELHI: Supreme Court in its judgement while granting interim bail to Alt News co-founder Mohammad Zubair, said the 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.

A bench of Justices DY Chandrachud, Surya Kant and AS Bopanna said individuals must not be punished solely on the basis of allegations, and without a fair trial.

The remarks of the top court came in its detailed judgment passed on July 20 where it had granted interim bail to Zubair, clubbed six FIRs registered against him in different districts of Uttar Pradesh and transferred them from Uttar Pradesh to Special Cell Delhi Police and disbanded the SIT of UP government.

"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," it said.

The judgement further stated, "When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. The criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the CrPC 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."

The bench noted in its judgement that from the facts of the case, it is evident from the facts, "the machinery of criminal justice has been relentlessly employed against Zubair".

Zubair is trapped in a vicious cycle of the criminal process where the process has itself become the punishment, the bench noted.

"Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned above, the petitioner was subjected to multiple investigations across the country. 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 also appears that certain dormant FIRs from 2021 were activated as certain new FIRs were registered, thereby compounding the difficulties faced by the petitioner," the top court said.

It further said that merely because the complaints filed against Zubair 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 Zubair to not express his opinion - an opinion that he is rightfully entitled to hold as an actively participating citizen - would be disproportionate to the purpose of imposing conditions on bail," said the Supreme Court on the UP govt's request that he must be barred from tweeting when he is on bail. The imposition of such a condition (restraining him from tweeting) would be tantamount to a gag order against him, it said.

"Gag orders have a chilling effect on the freedom of speech. According to the petitioner, he is a journalist who is the co-founder of a fact-checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos. Passing an order restricting him 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 bench further said.

Zubair had approached the apex court seeking quashing of FIR or otherwise clubbing of FIRs registered against him in Uttar Pradesh with the first FIR lodged against him in Delhi and for interim bail in the cases.