Journalist Mohammed Zubair was arrested by the Delhi police on June 27 for an alleged offensive tweet that was posted more than four years ago. The police action against the Alt News co-founder has been criticsed by various rights and press bodies, with the Editors Guild of India saying that his work was “resented by those who use disinformation as a tool to polarise the society and rake nationalist sentiments”.
On June 30, Karan Thapar spoke to former Supreme Court Justice Deepak Gupta about the journalists arrest. The judge says that he is worried by the Delhi police’s action but even more worried that the court did not grant him bail. He also says that if people are arrested at the drop of a hat, the courts should consider granting compensations to people who are wrongfully arrested. He says freedom of speech is sacrosanct and if it comes under pressure, that is not a good day for democracy.
The following a transcript of the video interview, edited lightly for style and clarity.
§
Is Mohammed Zubair the victim of blatant prejudice at the hands of the Delhi police? That’s the key issues I should discuss today with one of the most illustrious former judges of the Supreme Court, Justice Deepak Gupta.
Let’s start with a simple question. How do you view the way the Delhi police have treated Mohammed Zubair, who has been arrested and charged under sections 153 A and 295 A of the Indian Penal Code (IPC) for a tweet posted over four years ago on March 24, 2018? That means he is accused of promoting enmity as well as intent to outrage religious feelings even though nothing of the sort has happened as a result of his tweet over the last four years.
I am a bit worried, a bit confused as to why this gentleman, Zubair, was taken into custody at all. As you point out, the incident is of March 2018. Four years have elapsed. There’s not even an indication that his tweet led to any dispute between two communities. Suddenly, after four years, the police comes up and says, “We have to arrest him.”
We’re talking about the human rights of a citizen. Should a citizen of this country be put behind bars for something. let’s assume the police’s case, has the possibility of inflaming passions. That can be the police’s case at best. But there’s no such.. they have not said there is any such incident.
I am even more worried that the court refused to grant him bail. This was an instance where the police woke up after four years. The judge should have asked them, “If you didn’t arrest him for four years and nothing untoward happen in those four years, why do you need to take him into custody?”
In a nutshell, can I put it like this, Justice Gupta? You fail to understand why the police have arrested him, and you are deeply concerned that the court didn’t grant him bail immediately. Have I understood both points correctly?
Yes, absolutely.
The tweet that Zubair posted in 2018 carried a shot from a 1983 Hindi film called Kissi Se Na Kehna, which was a) cleared by the censor board and b) according to the newspaper, its been shown on television repeatedly. Isn’t it strange that this shot has given no offence for almost 40 years and yet suddenly, it is considered offensive in June 2022?
We are suddenly turning into a very intolerant society. If for 40 years nothing happened, suddenly in one year or six months, this tweet becomes so offensive? I’ve seen the tweet. In my view, at best it can be – if you are very very strict about your religion – said to be “slightly not proper”. It is not offensive. As children, I don’t know if you ever watched, but I used to watch the Ramleela in Shimla. Much worse things were said and done at that time by the people performing the Ramleela itself. You have to have a little sense of humour. There’s nothing in this tweet, a ‘honeymoon hotel’ has been turned into ‘Hanuman hotel’. It may not be in the best taste or something, but how is it offensive? How does it violate any criminal law? I fail to see that.
Now, according to news reports, the police are also looking into other tweets by Zubair, which they allege are offensive. But as The Wire points out, those other tweets are either satirical riffs or they are direct quotations from people like Yogi Adityanath; Biplab Deb, the former chief minister of Tripura; and of a BJP MLA. So again, doesn’t this collectively show that the police don’t have a case at all against Zubair?
No. You can’t arrest a person to collect evidence against them. You have to arrest a person when a case is made out against them. And then also, somehow we have got that arrest must be done in every case. Why should there be an arrest in every case? Even if there is an arrest, the court should grant bail in such cases. And like you said, the other tweets, the police itself says, “We’re looking into other tweets.” When they look into the other tweets and find something offensive, the law must take its own course. If there is something that violates the law, Zubair as a citizen of this country, will face the law. But then at the same time, the law should not be used in a manner as if he’s been targeted. And somehow, I feel, that he’s been targeted.
I’ll come to this critical question of whether he’s been targeted in a moment’s time. But let me pick up first on something you said in that answer. “You can’t arrest to collect evidence. Only when a case is made out against someone can you arrest him.” In this instance, you get the feeling that this is a fishing exercise, that the police don’t have the evidence, they’ve arrested the man. Now they are trying to justify the arrest by desperately looking for evidence.
Yes, absolutely. You see, from what I’ve read in the papers, he was called for investigation in a matter in which he had already got protection from the high court that he could not be arrested. Then, while he was being examined in that matter, suddenly they put up this four year old tweet against him. Now they are saying they are looking for other tweets. You please do your homework first and then arrest the gentleman. Not arrest the gentleman and then do the homework.
Let’s then at this point come to the issue of targeting. Because many people suspect that Zubair has been targeted by the police in revenge for the fact that he was the one who first confirmed that Nupur Sharma had made offensive remarks against the Prophet Muhammad on a Times Now programme. When you gave me that answer earlier suggesting that there was targeting, do you share the suspicion that this is some form of ‘revenge targeting’, a ‘revenge arrest’?
I’ll not go to the extent of ‘revenge’, but there is something amiss. There is something amiss. The lady, Nupur Sharma, said something which offended feelings and almost impacted our relationship with certain countries abroad. But I feel, even she should not have been arrested. She has a right to say something. If its offensive, people can’t..
May I correct you, Justice Gupta, she has not been arrested. Neither of the persons [Sharma and Naveen Kumar Jindal] have been arrested.
Yes, I know that. I am saying she should not have been arrested. She was not arrested. Similarly, Zubair also should not have been arrested. You have to use the same scales of justice for both of them. In fact, if you look at those scales and you weigh her (Sharma’s) tweet vis-a-vis the tweet of Zubair, hers has much more potential to cause harm than the one of Zubair. Now, if the police is silent on that (Sharma’s comments) and arrests Zubair, it does feel that there is something wrong in the way the police have dealt with it.
Well, let me pick up on that point, because it raises a fundamental question about the police’s behaviour and my claim in the introduction that Zubair is the victim of prejudicial police behaviour. Zubair, as I said, has been charged with 153A and 295A. So too, and this is the important point, have Nupur Sharma and Naveen Jindal. But weeks have gone by, maybe even a month, and Nupur Sharma has not been arrested. And yet, Zubair has been arrested and not just with incredible haste, but whilst he was being questioned in an altogether different matter. Is this difference of treatment, this start difference of treatment, where you charge people with the same sections of the IPC, but treat them very differently, does that once again reflect prejudicial handling by the police?
Definitely. There can be no doubt about it that they are applying two different standards.
Axed BJP politicians Nupur Sharma and Naveen Jindal. Photos: PTI
You really mean that? “No doubt about it, these are two different standards.”
In my view, both should not be arrested. I mean, freedom of speech is sacrosanct. If somebody has a dispute, let them file a civil case. In fact, we add fuel to the fire by giving these cases so much publicity.
But the main point you are making, if you are going to arrest Zubair – for what you yourself described as a lesser alleged offence – but not Nupur Sharma for what you said was a greater potential offence, that is prejudicial handling by the police. That is the point you stand by.
Absolutely. Absolutely. There’s no two ways about that.
What do you make, Justice Gupta, of the fact that the Twitter account that raised the complaint against Zubair’s 2018 tweet was only created in October 2021 – almost three-and-a-half years later. The complaint on June 19, 2022 was the first tweet from this account – which Zubair’s lawyer has actually said, the police magically picked up. What do you make of that?
There is one more thing which I have read today. If it is correct, now that account has vanished from Twitter. Now, obviously, this is something somebody has created.. Now, you don’t have any evidence that this tweet led to any disaffection in any section of society. Somebody sends you a tweet, which you don’t even investigate that the tweet is from a movie which was made about 40 years back, which has been shown on television, which has been seen by so many people. It has not created any problem. So how do you say that this tweet is offensive?
In fact, as you correctly pointed out, not only was the Twitter account closed on Wednesday evening but as a report in Thursday’s The Hindu points out, during its longevity, the brief period of its existence, it only posted three tweets. The original complaint on June 19, another one on June 27 and the third on June 28. Should this account itself be enquired into?
Absolutely. Definitely. Who opened this account? What were its credentials? Who is this person who has made this complaint? Why is the police acting so hurriedly on this complaint? And I can tell you, there are hundreds of much more serious cases of rape and murder, where the police always claim, “We have limited resources. Our manpower is limited. We don’t have the time to go and investigate and arrest.” But in cases like this, within minutes, the manpower is there and the arrests are made.
You made a very important point when you said, “Why has the police acted with such haste into this particular issue?” Zubair’s lawyer, Vrinda Grover, pointed out that the real problem is Zubair’s name, faith and profession. But leave that aside, that is her opinion. Let me ask you another slightly different question.
Should an inquiry be held into the way the Delhi police have acted and behaved over this matter? A proper, formal inquiry into their treatment of Zubair?
I really don’t know whether inquiries help. These inquiries go on for long, long years and no result.. even if the inquiry report is against the police, they don’t take action. But I think the courts have to be more upfront. The Delhi high court is one of the best in the country. Somebody should take this, why are the not being given bail? If people are arrested at the drop of a hat, I think the time has come when courts should think of granting compensation to people who are arrested in such a manner. You look at Disha Ravi [a young climate activist who was arrested in the ‘toolkit’ case]. We talked about Disha Ravi about six months back. Now, no case has been made against her. Similarly, nothing will come out of Zubair finally. Even the police knows it. But they’ve arrested him, he’s been behind bars for three or four days. It is unfortunate.
File photo of environmental activist Disha Ravi. Photo: Social media
You made two very important points there. First, you said, Justice Gupta, that there is no point in an inquiry into the police. Such inquiries are held, nothing comes out of them, they end up being – although you didn’t say this – attempts at whitewashing the police.
However, the second point is that the court should look into this. Are you actually recommending to Zubair’s lawyers, who I imagine are listening to his interview, that they should raise this matter immediately with the high court?
No, I don’t know whether immediately would be proper or not. Because that is a court order, they can challenge the order, the procedure must be followed – you can’t take it on the administrative side.\
[Editor’s note: Zubair has since moved the Delhi high court challenging the police remand.]
But if the high court comes to the conclusion – or any other court comes to the conclusion – that Zubair was wrongly arrested, then he must be compensated. You know, compensation should be of such a scale that the police thinks twice before arresting innocent persons.
How confident are you that if this matter were to be raised at a higher court, lets for argument say the Delhi high court, that they will see that issue in the way you’ve just seen it and talked about.
I hope that.. No, I have great hope that the issue will be seen in the proper perspective. I am not saying that I am always right. This is my point of view. Maybe a judge can give good reasoning to [explain why I am wrong] – and I might agree with that judge later on. But right now, as the facts stand today, I see no reason why Zubair should not have been granted bail.
We’re coming to the end of this interview. Let me raise two further questions with you. The United Nations secretary-general’s spokesperson has said, and I’m quoting, “Journalists should not be jailed for what they write, what they tweet and what they say.” Would you agree with that?
I would agree with that, but I think the United Nations would be better off saying these things to Russia, Uzbekistan or.. I am not saying that Zubair is not an important issue, but less said about what the United Nations does [the better]. I have strong opinions on that also.
May I just point out, whilst there is clearly a case for the United Nations directing its comments against Russia, there are several – far too many in fact – instances which would justify similar quotations being directed against India. We have had many cases in which journalists have been wrongly arrested.
Yes. And that is for the Indian system itself. We have to see for ourselves, how to improve the system. And we must do it, whether it is the courts [or some other institution]. I mean, if we are to survive as a democracy, then we have to see that freedom of speech in its true form is always available to the citizens and to the press.
That’s a very important thing you are saying. Are you also suggesting that the survival of freedom of speech in India is under a question mark? I won’t go so far as to say threat, others would say threat, under question mark? And that, in turn, questions our survival as a democracy?
Yes. Because freedom of speech is one of the basic functions of democracy. And when it is either threatened – not even threatened, if it is put under pressure – if people are, you know, made to feel that if they express a certain point of view, they will face trouble – whether it is from the ED or the money laundering cases – then that is not a good day for democracy.
My last question, Justice Gupta. This arrest of Zubair by the Delhi police happened almost at the same time as Prime Minister Narendra Modi in Bavaria – where he was an invitee to the G7 summit – signed a document upholding freedom of speech and freedom of expression. Have the Delhi police not just embarrassed the prime minister with the timing of their behaviour, but have they embarrassed the country as well?
I don’t even know whether the Delhi police was aware of what the prime minister was signing or not. But their action is absolutely opposite to what the prime minister intended at the G7 summit. So in that sense, it is an embarrassment. Though I think they were probably totally ignorant of what was being signed.
