Hate Speech, Political Expression, Press Freedom, Violence Against Speakers / Impunity
Gaši and Others v. Serbia
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A three-judge bench of the Supreme Court of India (“the Court”) granted bail to the petitioner (a journalist) and passed an order directing the consolidation of various First Information Reports (“FIRs”) filed against the petitioner in different districts of Uttar Pradesh and with the Delhi Police Special Cell. The petitioner had put out a series of tweets which were alleged as offences punishable under various sections of the Indian Penal Code, 1860 (“IPC”) and the Information Technology Act, 2000 (“IT Act”) for triggering religious sentiments. While emphasizing on Article 19(1)(a) of the Indian Constitution which guarantees freedom of speech and expression, the Court opined that the multiplicity of criminal proceedings caused harassment to the petitioner and was unnecessary when the cause of action underlying all the proceedings was similar. The Court also refused to pass a blanket order barring the petitioner from publishing tweets on the social media platform while on bail as such a gag order would have a chilling effect on his freedom of speech.
The petitioner, Mohammed Zubair, was a co-founder of ALT News, a fact-checking website run under the authority of the Pravda Media Foundation. The petitioner used the social media platform Twitter as a medium of communication to dispel false news and misinformation being spread through morphed images, clickbait and tailored videos. The petitioner had put out a series of tweets on Twitter:
“(i) Tweet 1:-against Mahant Bajrang Muni Ji of Rashtriya Hindu Sher Sena, Khairabad, Sitapur, Uttar Pradesh.
(ii) Tweet 2:- Sanjay Showing Facebook live video of Kurukshetra war of Mahabharat to Dhritrastra: Biplab Deb.
(iii) Tweet 3:- ‘Bajrang Bali’ ki aarti kama shuru karo, ‘hanuman chalisa’ ka path karo, bandar kabhi nuksaan nahin pahuchayega.
(iv) Tweet 4:- Ancient laptops had no processors & RAM. It was later copied by Missionary Mathematician Charles Babage. Sanskrit learning was essential for computer literacy those days. Only Virat Hindus could operate computer as lower castes were never allowed to learn Sanskrit.
(v) Tweet 5:- Equality to all is Real Ram Rajya. Be it Donkey.
(vi) Tweet 6:- We Vishnu A Merry Krishna “POSTCARD NEWS” Christianity is Krishna Neeti and Vatican City was called as Vatika!!!!” [para. 4]
Claiming that the petitioner had posted such tweets to trigger religious sentiments, on June 20, 2022, the Special Cell of the Delhi Police registered FIR No 172 of 2022 (“the main FIR”) against the petitioner for alleged offences punishable under sections 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence), 295-A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 201 (giving false information) and 120-B (criminal conspiracy) of the IPC, along with section 35 of the Foreign Contribution (Regulation) Act, 2010 [paras. 2-3]. On June 27, 2022, the petitioner was arrested and remanded to police custody and then to judicial custody on July 2, 2022. Initially, his bail application was rejected. However on July 15, 2022, he was granted regular bail by the Additional Sessions Judge [para. 2].
Apart from the main FIR which had been registered at the Special Cell in Delhi, a series of FIRs were also registered against the petitioner, both before and after the filing of the main FIR. These included: FIR No 502/2021 (Police Station Loni Border, Ghaziabad), FIR No 199/2021 (Police Station Charthawal, Muzaffarnagar), FIR No 193/2021 (Police Station, Chandauli), FIR No 511/2021 (Police Station Mohamadi, Lakhimpur), FIR No 226/2022 (Police Station Khairabad, Sitapur), FIR No 286/2022 (Police Station Sikandrarao, Hathras) and FIR No 237/2022 (Police Station Hathras Kotwali) [para. 5]. These FIRs were registered under different provisions of the IPC and the IT Act, but all of them related to the outraging of religious sentiments. In FIR No 199/2021 (Police Station Charthawal), the petitioner was granted bail on July 30, 2021; in FIR No 511/2021 (Police Station Mohamadi), the petitioner was remanded to fourteen days’ judicial custody on July 11, 2022; in FIR No 226/2022 (Police Station Khairabad), the petitioner was remanded to judicial custody on July 4, 2022, and to police custody from July 8, 2022, to July 14, 2022; and in FIR No 237/2022 (Police Station Hathras), the petitioner was remanded to fourteen days’ judicial custody on July 13, 2022, and a further application was filed seeking fourteen days’ police custody on July 15, 2022 [para. 6].
The petitioner, therefore, sought for quashing of these FIRs or alternatively, clubbing of these FIRs with the main FIR, which was being investigated by the Special Cell of Delhi Police [para. 8].
Justice Dhananjaya Chandrachud, Justice Surya Kant and Justice A.S. Bopanna of the Supreme Court of India presided over this case. The central issue for consideration before the Court was whether the FIRs filed in different police stations against the petitioner for promoting enmity between different religious groups were liable to be quashed.
The petitioner argued for quashing the FIRs since the gravamen of all the FIRs was filed in police stations within different districts in the State of Uttar Pradesh, and the main FIR in Delhi, related to the same set of tweets and alleged offences punishable under the same provisions, namely, sections 153A, 295A, 298 and 505 of the IPC, along with section 67 of the IT Act [para. 13]. The petitioner further contended that in none of the tweets had he used any improper language that provoked hatred towards any community, or was derogatory to any religion or a religious denomination. On the contrary, the petitioner had tagged the Uttar Pradesh Police in numerous tweets and urged the legal system to take action in response to other people’s speeches that were deemed to be objectionable [para. 14]. The petitioner also claimed that successive proceedings were filed against him with the intention to “harass and silence the voice of the petitioner” and that he had “real and genuine apprehension in regard to the safety and security of his life following the publication of several tweets” [para. 14].
Opposing these submissions, the respondent State submitted that the invocation of criminal law was imperative in the current case as the repeated tweets by the petitioner had led to the spread of hate and had a real potential of creating a communal divide [para. 16].
After hearing arguments from both sides, the Court was of the opinion that all the FIRs should be consolidated and that the petitioner should be released on bail in each of the FIRs since there was no justification in keeping “the petitioner in continued custody and to subject him to an endless round of proceedings before diverse courts when the gravamen of the allegations in each of the said FIRs arose out of the tweets which already formed the subject matter of the investigation being conducted by the Delhi Police in the main FIR” [para. 20]. While reprimanding the police officials for misusing their powers of arrest, the Court also made some pertinent observations regarding the subsequent proceedings filed against the petitioner. The judges placed reliance on the case of Arnab Goswami v Union of India [(2020) 14 SCC 12] which also dealt with the issue of multiplicity of proceedings and harassment of an accused journalist. In this case, the Court had held that “the exercise of journalistic freedom lies at the core of speech and expression protected by Article 19(1)(a). The petitioner is a media journalist. The airing of views on television shows that he hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a). India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal. The exercise of that fundamental right is not absolute and is answerable to the legal regime enacted with reference to the provisions of Article 19(2). But to allow a journalist to be subjected to multiple complaints and to the pursuit of remedies traversing multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation has a stifling effect on the exercise of that freedom. This will effectively destroy the freedom of the citizen to know of the affairs of governance in the nation and the right of the journalist to ensure an informed society.” The two-judge bench in the Arnab Goswami case further observed that, “the right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express. But we must as a society never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position” [para. 21].
Further, when the respondent State attempted to persuade the judges to bar the petitioner from tweeting while he was on bail, the Court opined that, “merely because the complaints filed against the petitioner 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. Gag orders have a chilling effect on the freedom of speech.” The judges also remarked that “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” [para. 30].
Finally, while emphasizing that the overlapping FIRs, emanating from the same tweets of the petitioner necessitated “a consolidated, as opposed to piece-meal investigation by a diverse set of law enforcement agencies”, the Court granted the alternative prayer of the petitioner, as a consequence of which all the FIRs which had been registered against the petitioner were transferred for investigation to the Special Cell of the Delhi Police [para. 23].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this case, the Court expanded freedom of expression by criticizing the multiplicity of legal proceedings taken against the journalist which harassed him and harmed his right to freedom of speech and expression. It also did not restrict the petitioner from publishing on social media while on bail. The Court noted that, “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. Gag orders have a chilling effect on the freedom of speech. 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.”
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